Scottish Court of Session Decisions

 

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

 

[2017] CSIH 8

A563/13

 

Lord President

Lord Menzies

Lord Brodie

 

OPINION OF THE COURT

 

delivered by LORD CARLOWAY, the LORD PRESIDENT

 

in the Reclaiming Motion by

 

BODIL BIRGITTE LUND JACOBSEN

 

Pursuer and Reclaimer

 

against

 

SHAILESH CHATURVEDI

Defender and Respondent

 

 

 

Pursuer: Milligan QC, Pugh; Harper MacLeod LLP

Defender: McBrearty QC, Paterson; Clyde & Co LLP

24 January 2017

Introduction
[1]        This reclaiming motion (appeal) is concerned with whether the pursuer has made sufficiently specific and relevant averments to justify the court allowing her to proceed under section 19A of the Prescription and Limitation (Scotland) Act 1973 in circumstances where her claim against the defender is admittedly time barred under section 17.  The Lord Ordinary has held that she has not pled a relevant case and the pursuer challenges that determination.

 

Averments
[2]        During the period September to December 2009 the pursuer underwent three surgical procedures to excise a cancerous tumour in her right breast.  In December 2009, she was advised to undergo a right mastectomy with immediate reconstruction.  She agreed to the procedure recommended and underwent surgery on 9 January 2010.  She maintains that, prior to that, she was not advised appropriately by the defender about several risks of the operation which, in due course, manifested themselves.  She experienced post-operative problems.  On 12 or 13 February 2010, remedial surgery was attempted by the defender.  Further surgery was carried out by the defender on 20 February 2010 to remove and replace an implant and to correct problems with necrotic skin. 

[3]        The pursuer had been concerned about the treatment which she had received.  Ultimately she was advised to undergo further corrective surgery in order to improve the cosmetic appearance of the breast and to correct certain cramps and muscle jumping problems.  On 22 July 2010, she had been advised by a new medical team that she had had a poor reconstruction of her right breast.  She underwent further corrective surgery on 17 August 2010. 

[4]        The pursuer initially contacted Messrs Harper MacLeod, Solicitors, in November 2010.  Work then commenced to find evidence which might establish a claim of negligence against the defender.  By mid-2011 an expert had been identified.  His report was received in late 2011, but was not supportive of a claim.  In August 2012, the pursuer’s solicitors discussed the matter further with this expert, but his views did not change.  Some potential further lines of enquiry were mooted.  These did not produce any better result from the pursuer’s perspective.  In December 2012, the pursuer’s solicitors decided that they wished to discuss the matter yet again with the same expert.  However, he was not to be available before the end of January 2013.  The solicitors then instructed a different expert.  His report was only made available on 15 July 2013, after he had seen the pursuer in May. 

[5]        The new expert provided support for the pursuer’s claim; in particular about the surgery undertaken on 13 February 2010.  Immediate steps were then taken to instruct a summons.  This was signetted and served on 18 July 2013.  The solicitors considered that service had been made within the triennium; ie that it ought to have been calculated from the point at which the pursuer had been advised that she had had a poor breast reconstruction.  However, shortly before the Procedure Roll debate before the Lord Ordinary, the pleadings were amended to admit that the action was time barred.  It is accepted that the triennium fell to be calculated from 13 February 2010. 

[6]        The pursuer contends that the court should find that it is equitable that her action should proceed in terms of section 19A of the 1993 Act.  She states that the defender will suffer no prejudice and, in particular, no “forensic prejudice”.  On the other hand, she would lose her remedy for “serious and ongoing injury”.  She avers that any “purported alternative remedy the pursuer may have against her agents would be weak”. 

[7]        Although of limited value in considering the relevance of the pursuer’s averments, some context for these averments is given by what the defender says by way of answer.  His position is that the claim was only intimated to him shortly before service of the summons.  The lateness of the intimation meant that he would be required to defend the allegations based on memories going back to 2009 and 2010.  Some of the medical records could not be found.  Various calls were made on the pursuer to specify in more detail what her solicitors had done between their instruction in November 2010 and mid 2012 and why any claim against her solicitors would be “weak”.

 

Lord Ordinary’s Reasoning
[8]        The Lord Ordinary states that the question which she had to answer at the stage of the Procedure Roll debate was not whether the discretion under section 19A should be exercised, but simply whether the pursuer had pled a relevant and sufficient basis for that issue to proceed to enquiry by way of proof.  The critical part of her opinion is as follows:

“[33]    The pursuer’s averments disclose that from the start of the triennium she was dissatisfied with the medical advice or treatment she received, and that she took steps to investigate and support her position.  There is no suggestion that she was deflected in any way or that any delay was caused by the recovery of records.  It was the combination and complexity of her concerns that appear to have rendered it difficult to secure an appropriate expert and one who was supportive.  Indeed, at the point where the triennium expired, the pursuer’s agents had not yet secured a supportive expert report despite sustained efforts to do so.  What these averments disclose is, in a sense, what should be done by a prospective pursuer during the currency of a limitation period: to instruct lawyers about a possible complaint; to secure the necessary documentary evidence; to seek advice and, for the purposes of a professional negligence case, to ascertain whether one can marshal supportive expert evidence, too.  The fact that all of that was done, but to no avail, might be said to militate against it being equitable for more time to be afforded for this to be done.  To put it another way: not every case a party wishes to raise is well-founded.  Has the pursuer pled anything about this to invite the exercise of the discretion in her favour, notwithstanding the apparently problematic basis of her action?  Certainly there are no pleadings to invoke this history, as it were, as an equitable factor in favour of the extension of the triennium.  There is, in fact, a paucity of averments expressly setting out what is the equitable basis for allowing the pursuer’s case to proceed under section 19A.”

 

[9]        The Lord Ordinary noted that the pursuer had averred that she would be prejudiced because she would lose her remedy, but this could not suffice by itself since that would potentially deprive the limitation provisions of their force.  She did not consider that there were relevant averments that the defender would suffer no prejudice.  Her averments about the responsibility of her solicitors were equivocal.  They were not as candid as they might have been.  Once the prejudice to the pursuer, in not being able to proceed, was removed, there was, in the Lord Ordinary’s view, no sufficient basis pled which, even if proved, would afford an equitable basis to justify the court exercising the discretion under section 19A in favour of the pursuer.

 

Submissions
[10]      The pursuer maintained that the case raised an important point of practical consequence; that is what solicitors should do when faced with an imminent expiry of the triennium when they had insufficient material upon which to found averments of negligence.  In that situation, they could not raise an action (Tods Murray v Arakin 2011 SCLR 37 at para [92]; Hamilton v Merck & Co [2012] CSOH 144 at para [15]).

[11]      The Lord Ordinary had required to determine whether the pursuer’s case was relevant, not whether she ought to exercise her discretion (Clark v McLean 1994 SC 410 at 413).  The Lord Ordinary had failed to apply the correct test in this regard.  She had quoted from the defender’s answers, which were irrelevant for this purpose.  It was only if it could be said that, even if all the pursuer’s averments were proved, the court would still be bound to refuse to exercise its discretion in her favour that the action should be dismissed (A v N 2009 SC 449 at para 11).  The Lord Ordinary had not applied that test either.  She had erred in five specific ways.  First, her discounting the loss of the pursuer’s claim as a form of prejudice was plainly wrong.  Secondly, there was no forensic prejudice to the defender.  The only issue raised concerned the absence of records kept by the defender.  Thirdly, there had been relevant averments about an alternative remedy against the pursuer’s solicitors being “weak”.

[12]      Fourthly, the Lord Ordinary had failed to recognise that what was relevant was the whole explanation as to why the action had been raised when it was.  In what was a complicated case, the pursuer’s solicitors had done all that was reasonably practicable to progress the case (see Scottish Law Commission: Report (No. 207) in Personal Injury Actions, Limitation and Prescribed Claims para 2.39).  The Lord Ordinary had acknowledged that, yet had found that the averment about any case against them being weak was irrelevant.  Finally, it was said that appearing to make an assessment of ancillary matters, such as the pursuer’s underlying prospects of success and making inferences about the difficulties which the defender might face was also an error, since none of these matters had been raised in the debate before her.

[13]      The defender submitted that, on the pursuer’s own averments, there was a strong case against her solicitors.  They had simply been working on the basis of an erroneous date in calculating the triennium’s expiry.  The pursuer’s averments, that the case against her solicitors was “weak”, were inconsistent with what she had averred about her solicitors being under the impression that they had raised the action timeously.  In this context, her averments had not been full and frank in stating why the case was weak.  As a result, the court required to discount that averment.  Once that was done, all that remained was prejudice in not exercising the discretion to allow the case to proceed, which could not of itself succeed (Bates v George [2012] CSOH 102).  Although having or not having an alternative remedy was a factor (Forsyth v AF Stoddard & Co 1985 SLT 51 at 55), there had to be relevant averments about it.  In that context, the test of relevancy (A v N (supra)) was not disputed.  The case was reminiscent of Leith v Grampian University Hospital NHS Trust [2005] CSOH 20.

 

Decision
[14]      The issue before the Lord Ordinary was whether the pursuer had made sufficiently relevant and specific averments to justify an exercise of the court’s discretion, under section 19A of the Prescription and Limitation (Scotland) Act 1973, to allow the action to proceed on the basis that it would be “equitable to do so” (Clark v McLean 1994 SC 410, Lord MacLean, delivering the Opinion of the Court, at 413).  The test for relevancy is not in doubt.  An action will only be dismissed if the court is satisfied that, even if the pursuer proves all her averments, she is still bound to fail (A v N 2009 SC 449; LP (Hamilton), delivering the Opinion of the Court, at para [11]).  In that regard, the Lord Ordinary applied the correct test.

[15]      Section 17(2) of the 1973 Act provides that, subject to section 19A, no action of the type involved here:

“shall be brought unless it is commenced within a period of 3 years after –

(a)        the date on which the injuries were sustained ... or

(b)        the date ... on which the pursuer ... became, or on which ... it would have been reasonably practicable for him in all the circumstances to become, aware ...

(ii)        that the injuries were attributable in whole or in part to an act or omission ...”.

 

That is the default position (Forsyth v AF Stoddart 1985 SLT 51, LJC (Wheatley) at 55; cf Cowan v Toffolo Jackson & Co 1998 SLT 1000, Lord Nimmo Smith at 1003).  When the court is asked to exercise its discretion, the pursuer has already, subject to section 19A, lost the ability to progress an action; the defender already has a complete defence.

[16]      The Lord Ordinary correctly determined that it is not sufficient, for the exercise of the discretion, simply for a pursuer to assert that the triennium has expired and that the action should be allowed to progress on the basis that otherwise he cannot succeed in his claim for damages.  The Lord Ordinary did not ignore or “discount” the fact that the pursuer would not be able to pursue her claim, but said that that factor could not suffice on its own.  This is particularly so given that the right to pursue a claim has already been lost at the point of the court’s determination of a section 19A application.  There require to be additional circumstances justifying a revival of the right.  It is not possible to circumscribe what these circumstances might be, but they do have to be sufficiently cogent to merit depriving a defender of what will have become a complete defence to the cause.  The interests of both parties and all the relevant circumstances must be considered. 

[17]      The Lord Ordinary was of the view that the pursuer’s averment that the defender would suffer no prejudice was not something susceptible of useful inquiry.  It is clear that a defender will suffer the loss of a complete defence to the action if it is allowed to proceed under section 19A.  The pursuer’s particular averment is that the defender would not suffer any “forensic prejudice” in the sense, presumably, of being able to present his defence adequately.  However, it is admitted that intimation of the claim to the defender was only made a few days prior to the summons.  It is impossible to fault the Lord Ordinary’s criticism of the pursuer’s bald averment of no forensic prejudice when it is known that the defender had first been made aware of a claim 3½ years and more after the events complained of.

[18]      One relevant factor militating against allowing a section 19A application is the existence of an alternative remedy, such as an action against the pursuer’s solicitors (Forsyth v AF Stoddart & Co (supra) at 54).  The stronger a pursuer’s case of professional negligence against his solicitors, the more likely it is that the court will refuse the application (cf Leith v Grampian University Hospital NHS Trust [2005] CSOH 20, Lord Brodie at para [12]).  The pursuer had suspected negligence at the outset.  She instructed solicitors and, as the Lord Ordinary found, apparently did all that she might reasonably have been expected to do by way of making a claim.  However, her solicitors did not manage, for whatever reason, to secure evidence to support her claim in the 3 years which elapsed after the last identifiable, potentially negligent, act by the defender.  It was asserted at the Bar, but it is nowhere averred, that the solicitors too had done all that they might reasonably have been expected to achieve by way of evidence gathering.  Such a contention, even if averred, would have to be supported by specific averments.  These are not present here, despite a call by the defender for greater specification.  After receipt of the non-supportive opinion in late 2011, very little of a positive nature was done, according to the averments, until a second expert was instructed at a point when, it is now admitted, any resultant expert opinion would come too late to form a basis for a summons prior to the expiry of the triennium.  That triennium was one which, it is effectively admitted, was not that to which the solicitors were working.  In all these circumstances, the Lord Ordinary was correct in holding that the averment that the case against the solicitors was “weak” was lacking in specification and hence to be regarded as irrelevant.  On the face of the pursuer’s existing pleadings, there is a prima facie case against her solicitors.

[19]      What was left was a case in which all that the pursuer could really say was that, although she had been unable to obtain evidence to support averments of negligence prior to the expiry of the triennium, she had since found such evidence.  The Lord Ordinary’s comments on this aspect, including remarks about the strength of the pursuer’s case, are simply directed towards the obvious fact that it may not be possible, in a difficult case, to find supportive opinion within the required period.  If that is so, it may be an end to the matter.  There are no relevant averments to explain why the evidence was not found within the three year limitation period.  Even if there were, it is difficult to contend that this alone could justify exercising the equitable remedy available under section 19A.  To do so simply on such a basis would fail to have regard to the interests of defenders in having reparation claims intimated to them within such a period as is regarded by the legislature as a reasonable one in which to conduct their affairs in an orderly manner.  In all these circumstances, the Lord Ordinary cannot be faulted for reaching the decision which she did on the pursuer’s averments.

[20]      The reclaiming motion is therefore refused.