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Brenda Louise Rennie on behalf of DMF v. The Lothian Health Board [2010] CSOH 61


Procedure Roll:- In this action the pursuer, a solicitor who had been appointed curator bonis of DMF, sought damages from the defenders of £5,000,000 in relation to alleged negligent acts and omissions in 1980 in relation to the birth of DMF on 18 July 1980 when, following her birth by emergency caesarean section, she had cerebral palsy and was incapax. At debate on the procedure roll the following pleas of the defender were considered:- (1) a plea in law that the action be barred as a result of mora taciturnity and acquiescence and the defenders should be assoilzied, which failing the action should be dismissed; and (2) having delayed unwarrantably in prosecuting the action and as a consequence through that delay the defenders were prejudiced in their ability to defend the action and the defenders should be assoilzied, which failing the action should be dismissed. It was agreed between parties as a matter of law that the present action had neither prescribed nor limited as DMF has always been incapax and would remain so and that for a period the non-age provisions also applied to DMF as part of the history of the action, albeit she had now reached the age of majority. Here the court considered the various elements of mora taciturnity and acquiescence and whether there was an effective plea of mora. Further, the court considered the effect and implications of prejudice to the defenders. The court also went on to consider the second plea of the defenders and whether there was anything in the delay in proceedings since the action was raised which would allow the court to conclude that the delay was inordinate, and if so, whether that delay was excuseable.