Stanislau Laudanska V. The University Of Abertay
| Jurisdiction | Scotland |
| Judge | J. Gordon Reid, Q.C. |
| Court | Sheriff Court |
| Date | 04 November 2003 |
| Docket Number | A213/99 |
| Published date | 05 December 2003 |
A213/99 Dundee, 4th. November, 2003. Judgment
Of
Sheriff Richard A. Davidson
In causa
Stanislau Laudanska
Pursuer
Against
The University of Abertay
Defenders
Act: Party
Alt: Henderson, Advocate; Messsrs. Thorntons, Solicitors.
The sheriff, having resumed consideration of the cause, refuses the motion for the pursuer to allow further amendment of the amended closed record, No.18 of process, in terms of the adjusted revised second minute of amendment for the pursuer, No.26 of process; finds the pursuer liable to the defenders in the expenses as taxed in relation to the perusal of various proposed minutes of amendment Nos 22, 23 and 26 of process and in relation to all procedure since 18th. December, 2002, except insofar as previously decerned for; appoints the cause to the procedure roll of to determine further procedure.
NOTE
Statutes referred to:
The Prescription and Limitation (Scotland) Act, 1973
Section 17:-
"(1) This section applies to an action of damages where the damages claimed consist of or include damages in respect of personal injuries, being an action (other than an action to which section 18 of this Act applies) brought by the person who sustained the injuries or any other person.
(2) Subject to sub-section 3 below, and section 19A of this Act, no action to which this section applies shall be brought unless it is commenced within a period of 3 years after-
- the date on which the injuries were sustained or, where the act or omission to
- ..................
which the injuries were attributable was a continuing one, that date or the date
on which the act or omission ceased, whichever is the later; or
- In the computation of the period specified in subsection (2) above there shall be
disregarded any time during which the person who sustained the injuries was
under legal disability by reason of nonage or unsoundness of mind."
Section 19A:-
"(1) Where a person would be entitled but for any of the provisions of section 17, 18A
or 18B of this Act, to bring an action, the court may, if it seems to it equitable to
do so, allow him to bring the action notwithstanding that provision.
Section 22:-
"(1) In this part of this Act-
.............. 'personal injuries' includes any disease and any impairment of a
person's physical or mental condition."
Authorities referred to:
- Alcock v Chief Constable of South Yorkshire Police [1992] 1A.C. 310.
- Anderson v British Railways Board 1973 SLT (Nts) 20
- Bourhill v Young 1942 S.C. (H.L.) 78
- Campbell v North Lanarkshire Council 2000 SCLR 373
- Coyle v National Coal Board 1959 SLT 114
- Cross v Highlands and Islands Development Board 2001 SLT 1060
- Fleming v Strathclyde Regional Council 1992 SLT 161
- Fraser v State Hospitals Board for Scotland 2002 SLT 1051
- Frost v Chief Constable of South Yorkshire Police [1999] 2 A.C. 455
- Green v Argyll & Bute Council 2002 GWD 9-295
- Griffin v George McLelland Holdings 1994 SLT 336
- Hatton v Sutherland [2002] 2 All E.R. 1
- Jamieson v Jamieson 1952 S.C. (H.L.) 44
- Keen v Tayside Contracts 2003 SLT 500
- Kelly v Holloway Brothers 1960 SLT (Nts) 65
- Khorasandjiian v Bush [1993] 3 All E.R. 669
- McCluskey v National Coal Board 1961 SLT 87
- McGrattan v Renfrew District Council 1983 SLT 678
- Mather v British Telecommunications plc 2001 SLT 325
- Mazs v The Dairy Supply Co. Ltd. 1978 SLT 208
- Miller v South of Scotland Electricity Board 1958 S.C. (H.L.) 20
- Mowatt v Shore Porters Society 1965 SLT (Nts) 10
- N.V. Devos Gebroeder v Sunderland 1990 SLT 473
- Pompa's Trustees v Edinburgh Magistrates 1942 S.C. 119
- Rorison v West Lothian Council 2000 SCLR 245
- Walker v Northumberland County Council [1995] 1 All E.R. 736
- White v Chief Constable of South Yorkshire Police [1998] 3 WLR 1509; [1999] 2
AC 455
Text Books Considered:
- 1. A Pocket Guide to the ICD-10 Classification of Mental and Behavioural
- Disorders: World Health Organisation
- 2. Sheriff Court Practice: Sheriff I.D. MacPhail QC; 2nd Edition esp. paras 9-12, 9-33; 10-34; 10-40 and 10-41.
- 3. Prescription and Limitation of Actions : Professor D.M. Walker QC; 6th.
- Edition, esp pp.129-131.
I heard debate on 3rd. March, 21st. April and 30th. May in relation to a proposed 37 page minute of amendment, No. 26 of process, which constituted the pursuer's third set of revisals of amendments, the court having granted her leave to lodge a minute of amendment on 18th. December, 2002, under reservation of the defender's right to challenge the receipt of any amendment which might materialise. The defenders did indeed oppose both the receipt of the minute of amendment and any question of any further amendment of the existing pleadings, which are contained in the already amended closed record, No.18 of process, opposing the proposed minute of amendment in its entirety and, without prejudice to that generality, in a number of specified respects also. Having heard Miss Laudanska on her own behalf and counsel for the defenders, I have sustained the opposition to the motion and have refused to allow the proposed minute of amendment.
This is an unfortunate piece of litigation which has had an unfortunate procedural history. A warrant to cite was granted on 4th. March, 1999 and sheriff officers effected service on the defenders on 5th. March, 1999. At that stage, the pursuer was represented by solicitors but they were granted leave to withdraw from acting on 15th. July, 1999, since which time it would appear that the pursuer has been unable to obtain alternative representation, though in the course of submissions she has spoken from time to time about receiving assistance from a legally qualified source, without identifying the source and without indicating any other position to the court than that she was representing herself, though she has complained at length about what she perceives as the iniquity of her having to do so. Although I cannot find an interlocutor closing the record, it appears that my colleague, Sheriff A.L. Stewart, QC., on 7th. September, 1999, assigned a first diet of debate, without specifying the preliminary pleas to be debated, on 15th. December, 1999. That was discharged on pursuer's motion and, of new, a debate was assigned for 8th. March, 2000. On that date, on pursuer's motion, the diet was discharged and the pursuer was allowed to lodge a minute of amendment, which would appear to have been No.11 of process, notwithstanding the defenders' opposition thereto. Answers to the minute of amendment having been timeously lodged, the case was then sisted on pursuer's motion to enable her to apply for legal aid. Incredibly, the case then called on ten occasions between June, 2000 and August, 2001 before the defenders' motion to recall the sist was ultimately granted. The sist having been recalled, the pursuer was, once more, granted leave to amend and the cause was appointed to the procedure roll of 11th. October, 2001. It would seem that a minute of amendment was produced and answered for the cause was then allowed to stumble through a further seven procedural callings while the pursuer advanced a variety of reasons for needing more time to adjust her minute of amendment until the case finally came before me on 4th. June, 2002 when I allowed the record to be amended in terms of the pursuer's minute of amendment, No.11 of process and the defenders' answers, No.12 of process, all as adjusted by Nos.13, 15, 16, 17 & 18 of process, thereafter closing the record of new and ordaining the pursuer to lodge an amended closed record, which, notwithstanding the foregoing numbering, appears to have been designated No.18 of process. I assigned a debate on the defenders' preliminary plea for 3rd. July, 2002 and continued consideration of a defence motion for expenses until the diet of debate.
On 3rd. July, the debate called before my colleague, Sheriff Craig Caldwell, who, having heard from the pursuer and agent for the defenders, was persuaded to discharge the debate and allow leave to the pursuer once more to amend, assigning 29th. August as a Rule 18 hearing. He made an award of expenses against the pursuer in respect of the abortive diet of debate. On two further occasions, time for lodging the minute of amendment was prorogated until, again, the case called before me on 19th. September when I refused to allow further time for amendment, closed the record of new, and assigned a debate for 18th. December. I also refused leave to appeal the interlocutor of that date.
The case called for debate before me on 18th. December, 2002. On defenders' motion, I allowed their third plea in law to be dismissed. The pursuer, once more, sought leave to amend. Having heard her and the agent for the defenders, I granted leave to lodge a minute of amendment but assigned 20th. January, 2003 as a hearing on whether the minute of amendment should be allowed to be received into process. That was adjourned until 12th. February when I allowed a further seven days to adjust the minute of amendment and assigned 3rd. March as a further hearing on the question whether the minute should be allowed to be received. I made a further finding in expenses against the pursuer in respect of the further abortive diet. On 3rd. March, 21st. April and 30th. May, 2003, I heard submissions from Mr. Henderson, Advocate for the defenders, and from the pursuer personally. Mr. Henderson's principal submission was to the effect that I should refuse to allow the minute of amendment.
I have narrated the procedural history at length as that history itself inevitably has a bearing on the outcome of a motion to allow late amendment. Suffice to say the foregoing history appears to me to demonstrate that the pursuer was given every opportunity to get her pleadings into order over a very substantial period of time.
While it may be unfortunate that she has not had the benefit of legal representation since 1999, it is not for me to explore the reasons for that. I am bound to observe, however, that the contents of the proposed minute, No. 26 of...
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