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Opinion column: Cameron Fyfe

15 July 13

It is pointless to require a pursuer to raise an action to prevent a claim becoming time barred - the purpose of the law can be served more simply

by Cameron Fyfe

Can I propose a change in the law which would be of benefit to all of us? It concerns the time bar in reparation cases.

As we all know, the general rule in personal injury litigation is that a court action must be raised within three years of the accident. For many decades, this rule has lead to hare-eyed practitioners and sheriff officers running around in a panic to have writs warranted and served before the midnight hour on the day in question.

This is a hassle for the sheriff and sheriff clerk, who have to put work aside to deal with the urgent writ. It is also inconvenient for the defenders and their agents who need to lodge a notice of intention to defend and/or defences. Most of all, there must be sympathy for the pursuer who either has to sell the family silver to pay fees and outlays to have the action raised or, if eligible for legal aid, needs to complete and sign a pile of legal aid forms that would put HMRC to shame.

Very often, the action is raised and then sisted for investigation or negotiation. Under the ordinary procedure it can then remain sisted (sometimes for years) until investigations and negotiations have been completed. At that point, the vast majority of claims either settle or the pursuer decides to go no further. Either way, the case is then dismissed, which involves further fees and outlays. Is it not legitimate to ask: what was the point in raising the action in the first place, other than to comply with the current time bar rules?

Can I give a recent example? I had a case which was about to become time barred. I asked the defenders’ agents if they might extend the time bar date, as success would depend on the content of a medical report which I was still awaiting. The defenders refused. I had to obtain emergency legal aid (reg 18) to raise and sist the court action. The medical report then arrived. It was unsupportive. The defenders agreed to dismissal of the action with no expenses due to or by (and even agreed to pay the court dues for dismissal, as the client’s emergency legal aid did not cover that). I may be missing something, but who exactly benefited from the raising of the court action?

There is another potential problem for the pursuer. Under the personal injury procedure, the action can only be sisted for three months. Thereafter, the pursuer has to press ahead with the case, ready or not. A fee-paying client then has a tortuous choice. Do they throw in their hand, or proceed at the risk of financial ruin?

There is a solution. In the Netherlands, for instance, a pursuer simply needs to intimate the claim to the defender to avoid any time bar plea. One letter is all that is required. On the other side of the globe, in Singapore, they need only send a claim form to the court, which is similar to the procedure in England. Are these arrangements not more convenient for all concerned?

The principal reason for the time bar rule is to protect the defender from having to investigate a claim long after the time of the accident. That sounds fair enough, but in what way does raising a court action assist them? Surely intimation of the claim is the crucial factor.

The only argument I can think of in favour of the current system is that it prevents a client from intimating a claim and then sitting back while the respondent is left to wonder if they are intent on proceeding further. However, there are now rules under which a defender can have an action dismissed if there has been undue delay, and similar safeguards under the Human Rights Act. It would appear, therefore, that there is only one argument in support of the status quo – and it’s wrong.

If any practitioners out there agree that there is a need for change, you should contact the relevant authorities and press for reform. The fact that we have lived with this rule for a long time does not make it right.

Cameron Fyfe is a consultant with Drummond Miller LLP, Glasgow

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