Limitation of Actions

This was a court action raised after expiry of limitation period -Court power to override time limit - [Prescription and Limitation (Scotland) Act 1973 (c 52), s 19A] – Tamburrini (T), a serving soldier between June 1995 and December 2003, raised an action of damages against A, the Advocate General for Scotland as representing the Ministry of Defence, in respect of (a) an injury sustained to his hand and (b) hearing loss allegedly from his exposure to excessive noise levels as a result of live firing exercises. Ts action in respect of his hand injury was proceeding to proof in January 2007 and his action in respect of hearing loss came to a preliminary proof on the question of time bar. It was agreed that the triennium period in respect of the deafness action expired on 18 October 2005 in terms of s 17 of the 1973 Act, and T moved the court to exercise its discretion in terms of s 19A. A submitted that they would suffer prejudice where: they would lose the statutory right to Ts claim being time barred; while there would still require to be a proof between the parties in respect of Ts hand injury, the inclusion of the deafness action would render it both more complex and expensive; the deafness action was based on the failure to have a safe system of hearing protection, monitoring and assessment of risk and while preliminary work had been done, further investigation would be required; and in any event, T had an alternative remedy in that he had a reasonable prospect of success in an action against his solicitors, who had failed to return the summons for calling with the result that the instance fell.

Decision: Granting the motion, that the court's discretion should be exercised under s 19 A and T should be allowed to bring the action notwithstanding that it was time barred under s 17 given that there was to be, in early course, a diet of proof between the parties on the hand injury action and there was a likelihood that some evidence in relation to the issue of deafness would be included in that proof, along with the considerations that this could not be said to be a stale case, the Ministry of Defence were well aware of the allegations and had prepared defences, and there was no significant practical prejudice to A, all of which tended to tip the balance in favour of exercising discretion in Ts favour.

Quantum Claims were subsequently able to settle the case on behalf of the client, by means on negotiation.