Individual facts and circumstances are critical in deciding whether to allow a time-barred action to proceed
The case of Robert Kinghorn v Martin Acoustics Limited is the latest decision of the court to reject a pursuer's claim that he should be allowed to proceed with an asbestos related action despite it being time-barred. The sheriff found the pursuer's lack of explanation for inaction between his diagnosis in October 1996 and his initial consultation with a firm of solicitors in 2014 to be "the decisive factor against the exercise of discretion which the pursuer seeks in these proceedings".
The pursuer was formerly employed by the defenders. In October 1996 he attended his GP with a chest infection and was referred for an X-ray which took place later the same month. He was advised that he was suffering from a condition known as pleural thickening, and whilst there as was a risk that the condition may develop into something more sinister, such as mesothelioma, he was advised that it would not be for some time.
The pursuer complained of neck and shoulder pain in 2008, and again in 2013, at which point he underwent a further X-ray and a subsequent CT scan. On 3 April 2014 the pursuer was advised by his consultant respiratory physician that the result of his CT scan showed changes "in keeping with...pleural plaques as well as....asbestosis". It was on this date the pursuer received advice about a possible claim for asbestos related lung disease.
The following day, the pursuer spoke to an advisor at Clydeside Action on Asbestos. Following the meeting the advisor wrote to the pursuer enclosing an application form to apply for benefits, together with an offer to put the pursuer in touch with a firm of solicitors who could assist with a civil/personal injury claim. The letter contained a warning that the pursuer should seek advice "at the earliest opportunity" to ensure he did not lose the legal right to seek compensation.
The pursuer was thereafter referred to Thompsons Solicitors who advised on 30 April 2015 and on 5 May 2015 that the pursuer's claim was time barred. Thompsons asked the pursuer for further information in relation to his visits to his GP in 1996 and 2008. The pursuer said that he was told in 1996 of scarring on his lungs and pleural thickening as a result of asbestos exposure and that in 2008 there was no change from his previous X-ray results. In the same letter to Thompsons the pursuer stated that around 2008 he visited Clydeside Action on Asbestos, completed a form and paid a fee of £5, thereafter leaving the matter with them. He advised he could not recall if they contacted him again.
In March 2018 the pursuer consulted Digby Brown solicitors. They advised the pursuer that his claim arising out of pleural plaques or asbestosis was time barred.
The pursuer consulted his current agents around October 2020 and was referred by them to medical experts who advised they did not think the pursuer had asbestosis, but extensive pleural thickening and pleural plaques. The action was raised in September 2021. A specification of documents was enrolled with the court in August 2022 to recover all relevant records in the hands of Clydeside Action on Asbestos when the pursuer sought their advice and assistance. It was claimed that no records were available.
The pursuer submitted that he had raised proceedings out with the triennium because he was "justifiably ignorant of his legal rights" and therefore the court should exercise its discretion under section 19A of the Prescription and Limitation (Scotland) Act 1973 ("the Act") to allow the case to proceed.
Section 19A of the Act provides the court with the power to override time limits if it seems "equitable to do so". The pursuer submitted that he had provided a comprehensive explanation as to why proceedings had not been raised which was a "clear and compelling explanation for the delay".
The pursuer referred to Kelman v Moray Council REP LR 64 whereby the action was held to be raised timeously on the basis that the pursuer did "not have...actual or constructive knowledge" in 1999 that he was suffering from a serious injury. The pursuer had been diagnosed with pleural plaques in 1999 and proceedings were then raised within 3 years of a diagnosis of mesothelioma. It was therefore held that time did not begin to run in 1999 and thus the claim had been raised timeously in terms of section 17 and section 19A of the Act.
The pursuer submitted that there were no significant explicatory gaps in the pursuer's evidence and a sufficient explanation given for inaction between 1996 and 2014.
The defender submitted that insufficient evidence had been presented which would allow the court to even consider exercising its discretion under section 19A of the Act, and if it had, the pursuer had "failed to demonstrate that the facts and circumstances favour a decision to allow this action to proceed".
The defender made reference to Jacobsen v Chaturvedi  CSIH 8 wherein the Lord President highlighted that "it is not sufficient, for the exercise of the discretion, simply for a pursuer to assert that the triennium has expired and that the action should be allowed to progress on the basis that otherwise he cannot succeed in his claim for damages" and that the circumstances must "justify a revival of the right" to pursue a claim.
The defender finally submitted that there was a "glaring absence" of any reason for the pursuer's failure to raise an action before 2014.
The sheriff found the pursuer's evidence to be "somewhat dogmatic, inconsistent, unreliable and less than candid". There were discrepancies between the pursuer's evidence and the evidence recorded in his medical records. When questioned whether his recollection may, in fact, be incorrect the pursuer was reluctant to accept that his recollection of events could be incorrect. He continued to maintain that his recollection of a consultation that took place 25+ years ago was correct over the evidence of his medical records.
Another example of the pursuer's inconsistent evidence was the pursuer advising that the section of his letter to Thompsons which stated that he visited Clydeside Action on Asbestos, completed a form and paid a fee of £5, and thereafter left the matter with them, related to a visit to them in 1996. This appeared unreliable given the structure of the letter.
Finally, the pursuer's records from Clydeside Action on Asbestos were lodged with the court and contained therein was a copy of a subject access request letter dated 25 November 2020. The pursuer requests "any personal data they may have relevant to the original claim for compensation in 1997 and...any recorded advice" and also makes reference to a claim form for benefits dated 1997. This was put to the pursuer during cross-examination, at which point the pursuer appeared to become defensive at the suggestion he appeared to have made a claim of some description one year after the initial diagnosis of pleural thickening. He eventually but reluctantly accepted that he "must have done" when it was put to him that he had had contact with Clydeside Action on Asbestos in 1997. It was then put to the pursuer that if he had received and completed a claim form in 1997, his evidence that he had been advised in 1996 that he had no claim was incorrect, however the pursuer refused to accept this proposition.
The sheriff rejected the pursuer's submission that the clock should not start running in 1996 as the pursuer had accepted that he had sufficient knowledge following his own investigations that he had a serious injury. He also rejected the pursuer's events that an advisor at Clydeside Action on Asbestos had told him in 1996 that he did not have a claim on the basis that, firstly, the pursuer was the only witness to speak to such conversation and, given the inconsistencies in the pursuer's evidence, he was not a reliable witness. Second, given the pursuer's evidence that he completed a claim form in 1997, he cannot have been told the year previously that he did not have a claim. Furthermore, the sheriff considered there had been periods of inaction on the pursuer's part with no satisfactory explanation that would make it equitable to allow the pursuer to proceed with the action.
This is a helpful decision for defenders, demonstrating that actions will not be allowed to proceed solely on the basis that if they do not the pursuer will lose their only recourse to damages. It is evident from this decision that the individual facts and circumstances of each case are critical when a sheriff is deciding whether to allow a time-barred action to proceed.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.