Don’t wait when there’s an action to be raised
Time-bars are vital even in heart-wrenching cases
Time limits within which actions must be raised in Scotland are imposed for sound public policy reasons. Courts are often tasked with the unenviable exercise of applying the relevant legal principles to claims involving distressing circumstances.
In Marlene Simpson and Faye Campbell v Dumfries and Galloway Health Board, the pursuers were the mother and sister of Michael Crossan, who died by suicide on 20 August 2019.
On 20 December 2022, the pursuers raised an action against the Health Board, arguing its failure to provide appropriate care was the cause. The Health Board argued the action was time-barred, as it was raised outwith the three-year period permitted in Scotland.
Section 18 of the relevant legislation lays down the circumstances in which the three-year time limit will commence. Section 19A provides the court with the power to override the time limit “if it seems equitable to do so”.
Within two weeks of the death, the pursuers sought legal advice and made a complaint to the Health Board, which resulted in a Serious Adverse Event Review (SAER). Following the outcome of the SAER, the pursuer’s solicitors advised that in line with their business practice, the prospects of success were insufficiently high for them to continue acting but advised personal injury claims were subject to a three-year time limit.
The first pursuer appealed the SAER to the Scottish Public Services Ombudsman (SPSO) on 6 July 202. The complaint was upheld on 28 October 2022. The SPSO decision was passed to solicitors and an action was raised on 20 December 2022.
Applying the relevant test, the Sheriff found that by 21 September 2019, the pursuers were aware the death was due to the actions of the Health Board. They had repeatedly been advised of the limitation period but had “closed their minds to raising any proceedings until after the SPSO issued their final decision.” Even after the final decision was available, proceedings were not raised promptly.
The sheriff sought to balance the prejudice to each party. If the extension was not granted, the pursuers would lose their right to pursue their claim. If it was, the Health Board would be prejudiced by the deterioration of evidence due to the passage of time. He refused to grant the extension in the circumstances and the action was dismissed.
On appeal, it was held that it does not matter if a pursuer knew whether or not the acts or omissions were legally actionable. What is required is awareness that the death was capable of being attributed to those acts and omissions. This had to be a real possibility and not a fanciful one, a possible rather than probable cause. The Sheriff had not erred in identifying the starting date above.
Furthermore, a pursuer relying on section 19A must satisfy the court that it should grant the remedy and provide an explanation for the delay which is sufficiently cogent to justify depriving a defender of a complete defence. It was within the Sheriff’s discretion to find that this test was not met. The pursuers were advised repeatedly that they had a three-year period within which to raise litigation. Awaiting the decision of the Ombudsman was not justification not to raise proceedings.
This sad case serves as a stark reminder of the necessity to understand and comply with relevant time limits to preserve a right of claim and that public policy will be given effect where appropriate, even in harrowing claims.
Steven Smart is a Partner, Horwich Farrelly