Graham Fleming v Derek Keiller - Court of
Session: 17 October 2006
Graham Fleming was one of seven guns taking part in a pheasant
shoot on 10 November 2001 near Inverurie. The participants were
walking forward in a straight line, taking their line from Alex
Alexander who was in the middle position, working a dog. Mr Fleming
was 30 metres to the right of Mr Alexander on slightly higher
ground. Derek Keiller was the gun immediately to the left of Mr
Alexander. Mr Keiller shot low to his right hand side hitting Mr
Fleming.
Mr Fleming raised an action in the Court of Session alleging
that Mr Keiller shot outwith his arc of fire, too close to the line
of shooters and too low. The summons was signetted and served on 11
November 2004, one day after the expiry of the triennium, the three
year limitation period, and it was admitted that the action was
time-barred in terms of Section 17 of the Prescription and
Limitation (Scotland) Act 1973. The pursuer sought to persuade the
court to allow the action to proceed, although time-barred, using
the equitable power contained in Section 19A.
Mr Fleming had been represented by a firm of solicitors, who had
entered into correspondence, obtained a note from counsel, and had
subsequently declined to act. Mr Fleming then met with a
representative of Quantum Claims on 22 October 2004. They in turn
instructed solicitors. The solicitor concerned instructed counsel
to draft a summons on 25 October 2004. The solicitor failed to
enter the case into the office diary and wall chart. Counsel's
clerk acknowledged the instructions but counsel did not actually
receive them until 11 November 2004. Counsel immediately drafted a
summons which was signetted and served that day.
In support of the Section 19A argument, it was also suggested
that the defender had investigated the accident, was aware of the
claim, and was not prejudiced by the delay in litigating. It was
suggested that, by contrast, Mr Fleming would be prejudiced if he
lost his right of action against Mr Keiller and that any action by
Mr Fleming against his solicitors would not be straight-forward and
would inevitably cause delay and inconvenience for Mr Fleming.
Section 19A conferred a discretion on the court to be exercised
according to equitable principles. The court required to have
regard to the conduct of Mr Keiller since the accident, including
any explanations for not having brought the action in time. Mr
Keiller was answerable for the acts of his agents, and any failure
on the part of his legal advisers would normally be held against
him.
The court also required to consider the likely prejudice to Mr
Keiller if the action was not allowed, and the likely prejudice to
the defender if the Section 19A discretion was exercised. The
prejudice to a pursuer is normally the loss of his right of action
against the defender. The prejudice to a defender is normally that
he will lose an unanswerable defence.
The onus was on Mr Keiller to establish that the limitation
period should be extended. If the prejudice to the parties is equal
and opposite and the pursuer does not have a good excuse for his
failure to raise proceedings in time, the defender's limitation
rights must normally prevail.
The fact that Mr Keiller had an alternative ground of action
against his legal advisErs was relevant to prejudice. It was not
necessary to decide that the pursuer was almost certain to succeed
in that action. The court also decided that the length of delay may
be relevant to the exercise of discretion, especially where a long
delay may result in evidence being lost and so the general quality
of justice will suffer.
It was decided that the existence of insurance was irrelevant to
the exercise of the court's discretion and insurers are entitled to
assert all rights and defences that are open to the insured. The
insurer is entitled to invoke any relevant period of
limitation.
Lord Drummond Young decided that Mr Fleming's solicitor had
received the instructions to act on his behalf fifteen clear days
before the expiry of the triennium. That was long enough to draft a
summons, since the facts were simple and Mr Keiller's identity was
clear. Mr Fleming's solicitor failed to follow the firm's practice.
Mr Fleming was answerable for the acts of his solicitor. It seemed
likely that there was a good case of professional negligence
against Mr Fleming's solicitor, but there was no need to decide
that the pursuer was almost certain to succeed in a claim against
his professional advisers.
The most striking feature of the case was the fact that the
action was raised one day late. There was therefore no serious
impact on the quality of justice, it was not oppressive to the
defender to allow the action to be brought against him. However, it
was still in the public interest that disputes should be settled as
quickly as possible and that people should be able to arrange their
affairs on the basis that after a certain time they are free of
claims. The judgment of Parliament was that the certain time
concerned was the three year period contained in the 1973 Act. An
extension could only be granted if the court had been provided, in
the written pleadings, with a basis upon which the court's
discretion could properly be exercised. No good reason had been
advanced and the action was dismissed.
It is always necessary to be vigilant in relation to limitation
periods. Depending on the background position a time-barred
challenge may well be successful.