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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Brouwers v. Tartaglia [2007] ScotCS CSOH_115 (06 July 2007)
URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSOH_115.html
Cite as: [2007] CSOH 115, [2007] ScotCS CSOH_115

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OUTER HOUSE, COURT OF SESSION

 

[2007] CSOH 115

 

PD1606/06

 

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD EMSLIE

 

in the cause

 

MR BEN BROUWERS

 

Pursuer;

 

against

 

MR RAYMOND DAVID TARTAGLIA

 

Defender:

 

 

ญญญญญญญญญญญญญญญญญ________________

 

 

 

Pursuer: Wilson; Simpson & Marwick

Defender: Henderson, solicitor advocate; Harper Macleod, LLP

 

6 July 2007

 

Introduction

[1] In this action the pursuer, a Dutch national, seeks damages from the defender in respect of a road accident which occurred on 4 September 2003. In that accident the pursuer sustained leg injuries when his motor cycle ran into the rear of the defender's car which was allegedly reversing round a sharp bend on the A82 road between Tarbert and Crianlarich. His claim encompasses solatium for pain and suffering together with certain costs and outlays.

[2] These proceedings were originally raised against the wrong party on 31 August 2006, some four days before the triennium expired. Instead of suing the defender as the driver of the car, the pursuer sued the defender's wife, Mrs Joyce Tartaglia, who owned the car and was travelling in it as a passenger when the accident occurred. When defences were lodged at the beginning of November 2006, the pursuer realised than an error had been made, and an amendment to convene the correct defender was allowed by the court on 19 December 2006.

[3] It is accepted that in the foregoing circumstances the action as laid against the present defender is time-barred by virtue of section 17 of the Prescription & Limitation (Scotland) Act 1973. Under section 19A of that Act, however, the pursuer seeks leave of the court to bring that action out of time, and the debate which I have now heard on the procedure roll concerned the disputed issue as to whether or not section 19A could properly be operated in the pursuer's favour. That section is in inter alia the following terms:-

"(1) Where a person would be entitled, but for any of the provisions of section.... 17 of this Act, to bring an action, the court may, if it seems to it equitable to do so, allow him to bring the action notwithstanding that provision."

 

The pleadings and supplementary information provided

[4] So far as relevant for present purposes, the pursuer makes averments on the course of correspondence between, on the one hand, his own agents and representatives and, on the other, the insurers acting under the motor policy which was held by Mrs Tartaglia as the owner of the car, and which inter alia covered the driving of that vehicle by the defender. Initially a claim was intimated on Mrs Tartaglia's behalf against the pursuer in September 2003, and at that stage the correspondence correctly identified her as the insured. In about June 2004, however, the pursuer's personal injury claim was intimated to the same insurers, and one of the oddities of this case is that throughout the succeeding period until the action was raised Mrs Tartaglia's name continued to appear in the heading of all correspondence. In their letter of 17 June 2004, the pursuer's agents asserted that "your client" (ex facie Mrs Tartaglia) "... appears to have been reversing in Mr Bouwers lane and thus causing serious injuries and loss to our client". On 14 July 2006, a further letter from the pursuer's agents enclosed ".... a report and photographs from.... our Investigation Specialist who has concluded that this accident to our client was caused as a result of your insured's negligence." That letter went on to intimate awareness of the impending expiry of the triennium, and an intention to commence proceedings if a prompt admission of liability was not forthcoming. At no stage, however, did the insurers point out that it was the defender, and not Mrs Tartaglia, who had been driving the car at the material time. By telephone in the course of August 2006, the insurers provided the pursuer's agents with the Tartaglias' Edinburgh address, and confirmed that in any event their solicitors had been instructed to accept service of a summons in due course. The insurers at that time also held out the prospect of agreement on the quantum of the pursuer's claim.

[5] At page 9E of the Record, the pursuer further avers that in September 2004 his representatives obtained an initial precognition from the reporting police officer who attended at the scene of the accident, in terms which... "referred to Mrs Tartaglia driving throughout", together with a further precognition to the same effect from a lorry driver who was present at the scene. I was informed, however, that although this latter precognition mentioned a car "driven by Mrs Tartaglia", asserting that "her car" was stationary, it went on to describe ".... an old couple driving"!

[6] On 23 September 2004, the pursuer's agents received from the insurers a further copy precognition from the relevant police officer which "contained inconsistencies". As explained at the Bar during the debate, this was a precognition obtained by the insurers themselves, and the "inconsistencies" comprised two references to the defender having been the driver of the car at the time of the accident and, in between, a sentence which named Mrs Tartaglia as the driver. In the absence of further averments on this aspect of the matter, I was informed (a) that the pursuer's principal solicitor who received this precognition would have read it on receipt, or at least within the next few days, but (b) that owing to the passage of time it was not now possible to say whether the "inconsistencies" were noticed at that time or not. It was also accepted before me that by the time the insurers sent out the precognition in question, they must have had possession of Mrs Tartaglia's initial claim form which presumably identified the true driver at the time. In addition, it was accepted that the insurers had by then held a copy of the formal police report on the accident for some six months, and that that report also correctly identified the defender as the male driver of the vehicle.

 

The parties' submissions

[7] Against that background, which both parties agreed was properly before the court for the purposes of this debate, the point in dispute was ultimately quite a narrow one. For the defender, it was contended that no legitimate or reasonable explanation for the late service of proceedings had been advanced, and that furthermore the potential prejudice on either side from the grant or refusal of leave had simply not been addressed. Accordingly, by reference to Carson v Howard Doris 1981 SLT 273 and Bain v Philip (Lord Weir, unreported, 11 March 1992), there was no proper basis on which the court's equitable discretion under section 19A could be exercised in the pursuer's favour. The insurers' correspondence had contained no factual misrepresentation; the pursuer must bear responsibility for any errors by his precognition agents; the pursuer's agents had clearly failed to respond to the "inconsistencies" in the precognition submitted in September 2004; they had admittedly taken no steps to obtain the formal police report which would have clarified the situation; and in all the circumstances the pursuer and his own agents should be seen as the authors of their own misfortune. Even if the defender's insurers had apparently laboured under the same misapprehension until after the action was raised, it was not their responsibility to identify the correct defender to be sued. Moreover, by reference to Munro v Anderson-Grice 1983 SLT 295, the pursuer appeared to have an alternative claim in negligence against his own agents, or at least that possibility could not be excluded. By contrast, a decision in the pursuer's favour would deprive the defender of the important protection which Parliament had conferred upon him under section 17 of the 1973 Act. No point was, however, taken regarding any further delay on the part of the pursuer's agents in the period after the triennium had expired. In other words, the defender's submissions on section 19A concerned only the period up to 4 September 2006.

[8] In reply, counsel for the pursuer submitted that in the circumstances there was every reason why the court's equitable discretion should be exercised in his client's favour. So far as the law was concerned, the decision in Carson had subsequently been criticised as reflecting too narrow a view of the issues to be considered, and in Bain the primary issue had concerned a different section of the 1973 Act. Of greater significance, in counsel's submission, were the decisions of the Inner House in Donald v Rutherford 1984 SLT 70, Forsyth v A F Stoddard & Co Ltd 1985 SLT 51, and Clark v McLean 1994 SC 410. These confirmed inter alia that the court's discretion under section 19A was unfettered, that there was no artificial limit on the range of factors which could be taken into account, and that the court might proceed on ex parte submissions as well as averments on Record.

[9] Against that background, a reasonable excuse had been provided for the error in raising proceedings against the wrong individual. The pursuer himself was badly hurt and could not say who had been driving the other vehicle. Initial precognitions indicated that Mrs Tartaglia had been the driver, and this appeared to square with the inclusion of her name in the heading of all correspondence with the insurers between 2003 and 2006. Of particular significance was the fact that when the pursuer's agents in 2004 and 2006 disclosed their understanding that Mrs Tartaglia was the driver who should be sued, this met with no correction or other response from the insurers. Even more importantly, the insurers had positively contributed to the misunderstanding in September 2004 when they sent their own precognition containing "inconsistencies" to the pursuer's agents. Surprisingly, this step had been taken when the insurers already had access to the correct information from the police report, and presumably also from Mrs Tartaglia's initial claim form in 2003. If the insurers knew the true position all along, but chose to keep quiet about it, their conduct would be reprehensible. On the other hand, it seemed more likely that they were labouring under the same misapprehension themselves, and they could not therefore be too critical of the pursuer's agents in that connection. Importantly, the insurers could point to no actual prejudice in the situation which had developed. Following intimation of the claim in mid-2004, they had had every opportunity to investigate it before proceedings were commenced, and they had been in a position to lodge full defences to the initial summons in November 2006.

[10] Counsel therefore maintained that the court's discretion under section 19A should be exercised in the pursuer's favour. Not only had the circumstances in which the error came about been fully explained, but it was clear that, in substantial measure, this error had been influenced by the conduct of the defender's insurers. It would be inequitable to allow the defender to take the benefit of a situation for which his own insurers must bear some responsibility. There were, moreover, other respects in which the equities favoured the pursuer. Since the insurers could assert no actual prejudice in the events which had occurred, refusal of the pursuer's application would represent a "windfall benefit" to the defender. The pursuer, by contrast, would be deprived of his right to recover damages from the party at fault; and moreover, it could not be said with any certainty that he would have an alternative claim against his agents. Negligence on their part was not a foregone conclusion, and in any event the pursuit of any such alternative claim would involve significant trouble and expense bearing in mind that the pursuer lived in Holland.

 

Discussion

[11] Although section 19A has often been said to confer on the court an "unfettered" discretion (cf. Donald, supra, per Lord Cameron at page 75), it must nevertheless in my view be construed and applied with the relevant primary limitation provision in mind. Parliament having envisaged that defenders should be entitled to "close their books" on a potential claim after a certain time, there must, I think, be a material onus on a pursuer who seeks to invoke the court's equitable discretion to override the statutory limitation. A pursuer must therefore aver facts and circumstances sufficient to raise an issue for determination under section 19A, after which it is for the court (with or without a proof on disputed facts) to decide that issue in the exercise of its equitable discretion. Among the principal factors for consideration by the court in that connection are (i) the circumstances in which the action was commenced out of time, (ii) the conduct of the parties generally, (iii) the prejudice, if any, liable to be sustained by the pursuer if the action were not allowed to proceed, and (iv) the prejudice, if any, liable to be sustained by the defender if the primary time-bar were to be overridden.

[12] Having reviewed the parties' pleadings and the other information placed before me in the course of the debate, I have reached the conclusion that the pursuer's application should, on equitable grounds, be granted notwithstanding the fact that this action was not directed against the correct defender until after the triennium had expired. The principal factors which lead me to that conclusion may be briefly summarised as follows:-

(i) In my view a reasonably full explanation is available for the error which occurred, even though it may be a little hard to understand how the triennium expired without that error coming to light. The pursuer's agents might perhaps have been expected to react to the 'inconsistencies' in the precognition which they received from the insurers in September 2004, and they might also have been expected to consider obtaining a copy of the formal police accident report which would have clarified the true identity of the driver. If the pursuer's agents had, by their own unaided efforts and without outside assistance, contrived to sue the wrong defender in August 2006, I think that it might have been difficult to justify the exercise of the court's equitable discretion in their client's favour.

(ii) As it seems to me, however, the conduct of the defender's insurers is an important factor in this case. From start to finish all of their correspondence was headed with Mrs Tartaglia's name, even though the primary subject-matter from mid-2004 onwards was the pursuer's personal injuries claim against whoever was driving the car. More importantly, perhaps, they sent out one of their own precognitions to the pursuer's agents which contained 'inconsistencies', and in particular an express reference to Mrs Tartaglia as the driver. This potentially confirmed the erroneous impression created by precognitions which the pursuer's agents already held, and might also have appeared consistent with the terms of all subsequent correspondence. If the insurers had known what they were doing all along, then obviously it would be inequitable to allow them to take advantage of the pursuer's error. The probability is, of course, that the insurers were labouring under the same misapprehension, but where their actings must have reinforced the pursuer's agents' misunderstanding to some degree I consider that the equities are still broadly in the pursuer's favour.

(iii) In addition, this is not a case in which any real prejudice can be asserted on the defender's behalf. A claim was timeously intimated in June 2004, and was subsequently investigated in full by the insurers before proceedings were commenced. Moreover, since the defender did not choose to take any point on the period of delay subsequent to the expiry of the triennium, this case can be treated as if the delay in convening the correct defender was very short indeed.

(iv) A further factor is that while the possibility of an alternative claim by the pursuer against his agents cannot on present information be ruled out, I do not think that the success of such a claim can be confidently predicted either. In any event, the pursuit of such a claim would involve the pursuer, who is a Dutch national, in considerable extra delay and expense.

 

Disposal

[13] It may be that some of the foregoing considerations would be insufficient in themselves to justify a discretionary decision to allow the pursuer's action against the present defender to proceed out of time. Cumulatively, however, it seems to me that they tip the balance decisively in the pursuer's favour. I shall therefore grant the pursuer's application for equitable relief under section 19A of the 1973 Act, and correspondingly repel the defender's contrary contentions. Standing the measure of agreement between the parties as to the relevant facts and circumstances, and their stated desire to have this matter disposed of on the procedure roll, I have felt able to reach this decision without having to consider the possibility of a preliminary proof on some aspects which were perhaps a little less clear-cut than others.


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URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSOH_115.html