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News update

Claimants may get more time to sue

By Julia Bryden, MPS Claims Manager, Edinburgh

Claimants in Scotland currently have three years from the date of an incident to raise a court action seeking compensation for personal injury. Although there are some limited exceptions to this rule, a claimant generally loses the right to raise a court action after this period has expired.

Change is afoot, however, following a recent consultation by the Scottish Government regarding the civil law of damages. The government has now confirmed its intention to amend legislation to extend the limitation period from three to five years from the date of the incident.

The government has also signalled its intention to revise the current ‘date of knowledge’ test, which is objective and is based upon the principle of reasonable practicality. Although the exact wording still remains to be seen, initial indications suggest that courts will soon be entitled to take account of claimants’ education, intelligence and occupation, and the clock will not run while a claimant was “excusably unaware” of the severity of the injury, or that it was caused by an act or omission of the defender. This will make it easier for the claimant to argue that the time limit to bring a claim should be pushed back further.

The key impetus underlying the above changes is a desire on the part of the government to ensure that claimants have sufficient time to investigate liability in more complex cases, such as industrial disease cases. It is considered that those cases require a higher degree of investigatory work and an increased number of expert reports may be necessary prior to raising proceedings.

The Scottish Government and the Scottish Law Commission are therefore of the view that these proposals will provide a better balance between the rights of the claimant and the defender.

From an MPS perspective, the extension of the limitation period in particular is a disappointing development. Generally, three years is sufficient to allow claimants to investigate and prepare clinical negligence court proceedings. In many cases, delays often stem from a failure on the part of the claimants to seek legal advice following the event, rather than because there was a lack of time to investigate matters. There is also a concern that the extension will reduce the quality of witness evidence due to the passage of time, and that it will generally encourage unnecessary delays.

On the plus side, we may well see fewer cases in which (often unfounded) “triennium buster” proceedings are raised before all the necessary investigations have been completed and before expert reports are available. The draft Bill is due to be published later this year. Although there will be an opportunity for further comment as it passes through parliament, the reforms are expected to go ahead.

Notably, these developments mean that the position regarding clinical negligence claims arising in Scotland will be different to that in England and Wales, where the three-year limitation period will continue to apply.

*Note on terminology: Once legal proceedings are raised in Scotland, a claimant becomes known as a ‘pursuer’.

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