Description
The Pursuer in this case sought equitable discretion under s.19 of the Prescription and Limitation (Scotland) Act 1973 to bring an action for damages resulting from medical negligence following the expiry of the three year time bar under s.17 if the Act. The court dismissed the action.
Lady Smith held that where the pursuer's solicitor was at fault, a full and frank explanation had to be provided of how advisors who ought to be aware of the risk of adverse consequences to their client if a time bar is missed failed to raise a timeous action. Where no excusable or attenuating circumstances have been avered, the court cannot grant equitable discretion. Likewise, where another remedy exists, it cannot be said that refusal of the equitable discretion would prejudice the Pursuer, even if that remedy consists of having to raise another action.
