Time bar


Time bar Winsborough v Mullan & CIS General Insurance Ltd February 2010 The claimant sought damages arising from a road traffic accident. The insurers admitted liability and made an interim payment. The claimant's solicitors subsequently issued court proceedings a month after the claimant's right of action had become time barred in terms of s.17 of the Prescription and Limitation (Scotland) Act 1973. The claimant's solicitors admitted their negligence in not raising the court action timeously, but sought to rely upon the court exercising its discretion in terms of s.19A of the 1973 Act in the claimant's favour and allowing the court action to proceed. At first instance, the court found in favour of the claimant and held that the prejudice to the insurers was minor and that that the time bar was a 'windfall' to them.

The insurers appealed to the Sheriff Principal and were successful in arguing that the claimant's 'cast iron case' against his solicitors for negligence mitigated any prejudice that he may have in losing his right of action against the insurers. The claimant had also argued that the court should take into account that he would lose his right to claim interim and provisional damages, should the insurers succeed, neither of these being available in claims for professional negligence. The appeal court noted that the claimant had already received interim payments and, in any event, as his solicitors had admitted liability, his case should be capable of a quick resolution. With regard to provisional damages, the court considered that there was an insufficient basis for such a claim. The claimant has now marked a further appeal to the Court of Session.

Scottish Whiplash Case Law Update Simpson v Barlas September 2009 (unreported)

The claimant sustained muscular injuries to her back and neck and severe contusions over her stomach. Back and neck strains were symptomatic for around four months. Bruising to her breast was visible for around ten weeks post accident and she suffered from breathlessness for three months post accident which was expected to fully clear within nine months. She experienced travel anxiety and loss of confidence. The court awarded general damages of £3,800.

Noble v Barlas September 2009 (unreported) The claimant sustained muscular injuries to his back and neck, bruising on his arms and legs and contusions on his chest. The back and neck strains were symptomatic for a period of four months post accident. The...

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