Reclaiming Motion Christopher Brits Against Kilcoyne & Co

JurisdictionScotland
JudgeLord Glennie,Lord Brodie,Lord Menzies
Neutral Citation[2017] CSIH 47
Date04 July 2017
Docket NumberA61/14
CourtCourt of Session
Published date18 July 2017

Web Blue CoS

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2017] CSIH 47

A61/14

Lord Menzies

Lord Brodie

Lord Glennie

OPINION OF THE COURT

delivered by LORD MENZIES

in the Reclaiming Motion

CHRISTOPHER BRITS

Pursuer and Respondent

against

KILCOYNE & CO

Defenders and Reclaimers

Pursuer and Respondent: Milligan QC; Digby Brown LLP

Defenders and Reclaimers: Paterson; Clyde & Co

4 July 2017

[1] In this action for damages for professional negligence the pursuer sues his former solicitors in respect of their failure to raise timeously an action for damages for personal injuries which he sustained in an accident in the course of his employment. The accident occurred on 9 April 2009. The triennium expired on 9 April 2012. The defenders failed to raise a court action against the pursuer’s employers by that date. On 17 April 2012, the pursuer instructed different solicitors to act on his behalf in this matter and on 1 May 2012 a summons was served on the employers. Defences were lodged on behalf of the employers, which contained a defence of time bar. That action was eventually concluded by extrajudicial settlement at a figure less than the full value of the claim.

[2] The issue before this court is the effect of the averments on behalf of the defenders in answer 3 of their defences, as follows:

“Explained and averred on 26 April 2012 Adrian Hotson, London Market Casualty Manager, Cunningham Lindsey LLp emailed David Wilson of Digby Brown LLp. Mr Hotson confirmed the correct designation of the pursuer’s employer and the address for service. Mr Hotson stated that his client would ‘not be taking the time bar defence’. Ex facie Mr Hotson’s email contained an unequivocal waiver of Harsco’s right to plead a limitation defence upon which the pursuer was entitled to found in the pursuit of his claim. The pursuer did not do so. Instead, in response to Harsco’s averments regarding time bar the pursuer pled that it was just and equitable that the action should be allowed to proceed against the defenders. Reference was made to section 19A of the Prescription and Limitation (Scotland) Act 1973. No reference was made to Mr Hotson’s email. The pursuer failed to plead that the email constituted a waiver of Harsco’s right to plead a limitation defence. That failure was unreasonable. It broke any causal connection that existed between the defenders’ failure to raise proceedings prior to 9 April 2012 and any loss sustained by the pursuer. Esto the causal chain was not so broken, by not pleading waiver the pursuer failed to mitigate his loss.”

[3] The effect of these averments was discussed at a Procedure Roll debate on the pursuer’s first plea-in-law, which was in the following terms:

“The defenders’ averments anent waiver being irrelevant et separatim, lacking in specification, should not be admitted to probation.”

[4] Having heard submissions for both parties, by interlocutor and opinion dated 16 February 2017, the Lord Ordinary sustained that plea-in-law and refused to admit to probation the defenders’ averments in respect of waiver in answer 3 of the closed record. It is against that decision that the defenders now reclaim.

[5] Counsel for the reclaimers submitted that the Lord Ordinary erred in law in reaching this determination; that the email in question constituted a valid, unequivocal, unambiguous and irrevocable waiver of the insurer’s rights to plead time bar at any time in the future and that the Lord Ordinary’s reasons for reaching the conclusion which she did were insufficient.

[6] In support of these grounds of appeal, counsel referred to the dicta in the following cases: Gordon v East Kilbride Development Corporation 1995 SLT 62; Van Klaveren v Servisair UK Ltd 2009 SLT 576, particularly at paras 5 and 7-9; City Inn Ltd v ...

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