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Emma Louise Irving v The Advocate General for Scotland [2012] CSOH 103 - 19th June 2012


Time-Bar/Personal Injury/Sections 17(2) and 19A, Prescription and Limitation (Scotland) Act 1973/Balance of Equities

This case involved a simple application of the time-bar provisions contained in the Prescription and Limitation (Scotland) Act 1973.

A preliminary proof on the issue of time-bar, finding that the action could not be brought out of time because i) the pursuer had not brought herself within section 17(2) of the Prescription and Limitation (Scotland) Act 1973 and; ii) it was not equitable to allow the pursuer to do so per section 19A of the Act.

The pursuer sought damages in respect of personal injuries sustained in November 1999. The defenders pled that the action was time-barred per section 17 of the Act and that the pursuer had not advanced sufficient circumstances for the court to exercise its discretion under 19A of the Act to allow her to bring the action. Held; i) on a balance of probabilities she had sufficient knowledge in 2001 that her injuries were not her fault for her to make inquiries about the possibility of an action for damages; it was reasonably practicable for her to have become aware of the necessary facts in 2006. Her application for a war pension at that time indicated that she attributed her injuries to her military service; therefore she had failed to bring herself within section 17(2); ii) it was not equitable, on a balance of equities, to allow the pursuer to bring the action notwithstanding that it was time-barred by virture of section 19A. There was no real explanation for her not seeking legal advice earlier and as such the defender should not lose the protection of the time bar provision.