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Chinn v Cyclacel Ltd [2013] CSOH 17 - 30th January 2013


Application requesting the court exercise its discretion under s.19A, Prescription and Limitation (Scotland) Act 1973 after a timeous action for damages in an upper limb claim failed. S. 19A was invoked to a material degree out of the conduct of the pursuer's legal representatives. The court noted that nothing in the conduct of the defenders occasioned delay.

Application refused. Held: The burden of satisfying the court that discretion under s. 19A be exercised rests on the pursuer. Although unqualified, the discretion must be exercised within certain limits (per Donald v Rutherford 1984 SLT 70; Anderson v City of Glasgow District Council 1987 SLT 279). Even if no personal blame attaches to a party, they are answerable for the acts of their legal advisors (there was no reason to distinguish between solicitors or counsel). The existence of an alternative remedy strongly influences the court when deciding whether to exercise its discretion. The scope of s. 19A cannot be expanded to include any attempt to re-litigate. In the present case, the pursuer had a prima facie case against her former legal advisors and to allow the action would be prejudicial to the defenders. It was not possible to arrive at a final view of the risk of deterioration of the quality of the evidence and most importantly, the pursuer had had a full opportunity to establish her claim.