UK: Scottish appeal court upholds judge’s decision to permit a time-barred claim to proceed
In Betty Sophia Smith Ferguson and others v J & A Lawson (Joiners) Limited  CSIH 82, Lady Paton of the Court of Session Inner House dismissed an appeal from the defendants, who argued that the Lord Ordinary had erred in law at first instance. The judge had permitted a time-barred claim to proceed on the grounds that it would be equitable to so do. The court held that the Lord Ordinary had made no material error of law and had simply exercised his discretion in the manner to which he was entitled.
The first instance case had concerned a time-barred claim brought by the widow of a joiner against his former employer, following his death from mesothelioma on 31 August 2006. On 28 August 2009, two days before the expiry of the relevant limitation period, the claimant’s solicitors erroneously commenced proceedings against the similarly named J & A Lawson Limited.
The error was not discovered until J & A Lawson (Joiners) Limited’s insurer was identified by the Employers’ Liability Tracing Office and the claim intimated to them. The insurer, AGF, responded on 9 February 2012, stating that they did not insure J & A Lawson Limited. A second action was commenced, against J & A Lawson (Joiners) Limited, who pleaded a time-bar defence under s.18 of the Prescription and Limitation (Scotland) Act 1973. The claimants accepted that the claim was time-barred but argued that it should be allowed to proceed regardless due to s.19A of the Act, which provides that the court has the power to overrule time limits in situations where it is equitable to do so.
The Lord Ordinary hearing the case concluded that it was indeed equitable to permit the claimant to bring the action. The decision was subsequently upheld by the Court of Session Inner House.
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