Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 79

A563/13

OPINION OF LADY WOLFFE

In the cause

B J

Pursuer;

against

S C

Defender:

Pursuer:  Pugh;  Harper MacLeod LLP

Defender:  Paterson;  Clyde & Co

8 June 2016

Introduction

• [1]This matter called before me at a procedure roll debate on the defender’s first plea-in-law seeking dismissal of the pursuer’s action.Shortly before the debate the pursuer admitted on record that her action was time-barred in terms of section 17 of the Prescription and Limitation (Scotland) Act 1973 (“the 1973 Act”).At the same time, she added averments seeking to invoke the court’s discretion under section 19A of the 1973 Act to allow her action to proceed.The defender sought dismissal of the pursuer’s case, as amended, on the basis that she did not have relevant averments for such a case.

   

  Background

• [2]Given the admission that the pursuer’s action is time-barred, it is not necessary to set out the full details of the pursuer’s case.It will suffice to summarise the nature of the pursuer’s case, which is one for professional negligence.
• [3]Following treatment for breast cancer in about 2009 the pursuer underwent reconstructive surgery.There have been a number of post-operative problems following the two surgeries she had in early 2010.She underwent subsequent corrective surgery in July 2010.In this action the pursuer sues the defender in respect of alleged professional negligence in respect of an asserted failure by the defender to advise her of other possible surgical options; a failure to advise her of possible risks associated with reconstructive breast surgery and a failure to obtain informed consent.There are also criticisms of some of the surgical procedures.The pursuer avers that the consultation at which at least some of that advice was given, and which is criticised, took place on 18 December 2009.The pursuer avers that “she is unable to identify [any] record of that consultation”.

   

  The pleadings

• [4]The pursuer’s action was signetted and served on 18 July 2013.It is now accepted that it became time-barred in about February 2013.In order better to understand the arguments presented, I set out the relevant passages of the parties’ pleadings, as amended.Statement 6 is in the following terms (including the minor corrections moved at the bar):

  “This claim is based on the fault and negligence of the defender at common law.  With reference to the defender’s averments in answer, admitted that the action is barred by passage of time in terms of s.17 of the 1973 Act, under explanation that, for the reasons hereafter averred, the Court ought to exercise its discretion under s.19A to allow it to proceed.  Quoad ultra the defender’s answers are denied except insofar as coinciding herewith.  Not all surgery is successful; and an unsuccessful result does not necessarily imply fault.  The pursuer initially contacted Messrs Harper MacLeod in November 2010.  At that stage she remained in receipt of treatment.  The pursuer had a number of queries regarding her treatment.  Those had arisen from the advice she received in July 2010, as condescended upon.  In particular, the pursuer had concerns relating to her initial diagnosis and the way in which she had been informed of it; the advice given to her in relation to Herceptin treatment; the choice of sentinel node biopsy; information surrounding further axillary sampling; and the margin left following mastectomy all in addition to those relating to the appearance of the reconstruction, the choice and placement of the implant, and the advice given by the defender prior to surgery.  After receipt of instruction, the pursuer’s agents undertook significant investigation, including the recovery of primary and expert evidence.  Initially, the pursuer’s agents sought both Oncology and Surgical expert comment.  Given the range of the pursuer’s concerns it was not straightforward to identify one expert to deal with them.  A number of experts were not in a position to assist: either because of commitments or because they were not appropriately qualified to comment on the range of the pursuer’s concerns.  In mid 2011, a Mr Sivarajan was identified as possibly being able to comment on the pursuer’s concerns.  He was instructed.  In late 2011, his report was received.  It was not supportive.  The pursuer’s agent sent the report to her.  The pursuer was not satisfied with the report.  She prepared a detailed analysis, giving her reasons.  In addition, and though unsupportive, the expert report had suggested further lines of primary inquiry, including with the Glasgow Oncology Unit relating to Chemotherapy and Herceptin.  Those lines of inquiry resulted in seeking additional expert input.  In around August 2012, the pursuer’s agent met with Mr Sivarajan to discuss his report, the further investigation and the pursuer’s analysis.  His view in relation to the surgery did not change.  Again, the discussion highlighted potential further lines of inquiry – this time relating to the conduct of sentinel node biopsy.  Those lines of inquiry were followed through urgently due to concerns regarding limitation (the sentinel node biopsy having been undertaken in September 2009, as condescended upon).  Those inquiries did not result in support for an allegation of negligence surrounding the biopsy.  Following those investigations, agents made further attempts to discuss the matter with Mr Sivarajan.  In December 2012 Mr Sivarajan’s PA contacted the Pursuer’s agent to advise that he was on sick leave and would not be contactable before the end of January 2013.  In early 2013 the pursuer’s agents advised obtaining a further expert opinion.  That was instructed from a Mr Parkhouse in January 2013.  Mr Parkhouse advised for the first time in early March 2013 that he wished to meet the pursuer personally in London.  Mr Parkhouse subsequently met the pursuer in May 2013 – she having travelled from Denmark.  His report was made available to agents on around 15 July 2013.  It indicated, in particular, support for the pursuer’s concerns surrounding the advice she was given regarding risks of surgery.  It also indicated concern about the repair undertaken on 13 February 2010.  It is the basis of the present action.  The pursuer’s agent was, at all material times, conscious of the need to raise proceedings timeously.  He was also aware of the need for a proper basis upon which to make allegations of professional negligence.  Upon receipt of expert support for certain allegations in July 2013, the pursuer’s agent immediately intimated a claim to the defender.  He urgently instructed Counsel to frame the appropriate summons.  Counsel framed the summons urgently.  It was then signetted and was served on 18 July 2013.  He considered that upon raising the action was timeous.  Further and in any event, the defender will suffer no prejudice, in particular no forensic prejudice, in the event that the action is allowed to proceed.  Any prejudice due to the lack of proper recording (the existence of such prejudice being a matter not accepted by the pursuer but that being a matter relied upon by the defender) is, in any event, of the defender’s own making in not properly maintaining records of consultations.  On the other hand, in the event that the action is not allowed to proceed, the pursuer will lose her remedy for serious and ongoing injury.  Any purported alternative remedy the pursuer may have against her agents would be weak.  In the circumstances, the Court ought to exercise its discretion under s.19A of the 1973 Act to allow the action to proceed.”

   

• [5]At debate, the defender’s counsel focused on the apparent two-year period during which the pursuer’s agents had been instructed (from 2011 to 2013) but had failed to raise an action.He also referred to some averments of factors relevant to the exercise of the court’s discretion under section 19A, namely whether there is any prejudice to the defender and also about the prospects of any alternative action by the pursuer against her agents.
• [6]While the defender’s pleadings are not, strictly, relevant to a challenge to the pursuer’s case on the basis of relevancy, they set out the chronology and the call referred to in the arguments before me.The defender also avers matters relied upon as relevant to the exercise of the court’s discretion, including the real and forensic prejudice he would face if the pursuer’s case was allowed to proceed.The defender’s Answer 6 is in the following terms:

  “Admitted that not all surgery is successful; and that an unsuccessful result does not necessarily imply fault.  The basis of the pursuer’s claim is not known and not admitted.  Quoad ultra denied.  Explained and averred that the defender fulfilled all duties incumbent upon him.  Explained and averred that the action is barred by passage of time in terms of Section 17 of the Prescription and Limitation (Scotland) Act 1973.  On the pursuer’s hypothesis of fact, she sustained injury on or before 13 February 2010.  When the pursuer saw Dr Rainey on 1 July 2010 she reported constant twitching and pain in her flap reconstruction.  She was aware that her symptoms were due to her breast reconstruction surgery.  She was aware that that surgery had been carried out by the defender.  Moreover, on the pursuer’s hypothesis of fact, she discussed her ‘concerns’ with the defender on various occasions, in particular on 24 February and 4 and 24 March 2010.  The summons was served on 18 July 2013.  By that time the triennium in terms of Section 17(2) of the Prescription and Limitation (Scotland) Act 1973 (‘the Act’) had expired.  Further explained and averred that the defender would face real and forensic prejudice in the event that the action was allowed to proceed in terms of section 19A of the Act.  The defender would be forced to defend a claim based upon the memories of the witnesses relative to events that took place in 2009 and 2010.  As hereinbefore condescended upon, certain medical records cannot be found.  The defender would lose the right to plead limitation in terms of section 17(2).  On the other hand, the pursuer would face no prejudice.  On the basis of her averments made in answer to the defender’s call which follows, ex facie she would have a right of action against her solicitors for failing to raise proceedings timeously.  She instructed them in November 2010.  Accordingly her solicitors have had over two years to raise proceedings against the defender.  They did not intimate a claim to the defender until 16 July 2013.  The pursuer has averred no cogent explanation for that or for not raising proceedings timeously.  The pursuer’s solicitors first intimated the pursuer’s claim to the defender by email dated 16 July 2013 at 10.21.  That email stated inter alia that the pursuer had advised her solicitors ‘of concerns that she had regarding 2 reconstructive procedures that she underwent in January and February 2010, following a surgical procedure undertaken by [the defender].’  The defender telephoned the pursuer’s solicitor, Mr James Kelly, that morning.  The defender advised Mr Kelly that he intended to notify his indemnity providers.  On the same day Mr Kelly emailed the defender’s solicitors at 13.42.  That email stated inter alia that the information in the pursuer’s solicitors’ possession ‘leads us to conclude that we require to intimate a Summons upon SC by 22^nd July 2013.’  That conclusion was plainly wrong, as the pursuer, by minute of amendment intimated on 8 January 2016, now accepts.  The pursuer is called upon to specify and aver when and whom she appointed as solicitors to act on her behalf relative to any claim that might arise from the surgery performed by the defender.  The pursuer is called upon to aver and specify, with candour, what was done to progress her claim in the period November 2010 to ‘mid 2011’.  She is called upon to aver and specify all advice that she received from her solicitors regarding the issue of time bar, and when that advice was received.  In particular, she is called upon to aver and specify the advice that she received from her solicitors regarding the obtaining of a ‘further expert opinion’, and time bar, once it became clear that Mr Sivarajan would not support a case against the defender.  She is called upon to aver and specify when she received that advice.  She is called upon to produce Mr Sivarajan’s report.  The pursuer is further called upon to aver and specify, with candour, the basis upon which she asserts ‘any purported alternative remedy the pursuer may have against her agents would be weak.’  She is called upon to produce any expert evidence upon which she intends to rely to vouch that averment.  The pursuer’s failure to answer the foregoing calls will be founded upon.”

   

  Defender’s submissions

• [7]Counsel for the defender, Mr Paterson, sought dismissal of the pursuer’s action in terms of the defender’s first plea-in-law.For the purposes of the debate, he confined himself to the relevancy of the pursuer’s averment under section 19A.He reserved his preliminary plea in respect of other matters for another day, if the pursuer’s case were allowed to proceed.In the alternative to his primary motion for dismissal, he sought a preliminary proof on the question of limitation.He summarised his position as follows: it was for the pursuer to plead a relevant case in order to invoke the court’s discretion under section 19A.She had failed to do so.Her averments for the purpose of section 19A of the 1973 Act were irrelevant.She provided no proper explanation for the failure to raise proceedings timeously.The matter could be determined on the pleadings.
• [8]Reference was made to the observations of the court in Clark v McLean 1994 SC 410 at 413.In that case, as here, the defenders sought to have the pursuer’s case dismissed at debate inter alia on the basis that the pursuer had not pled a relevant case.The court in Clark observed that if the pursuer has pled a relevant case, the next step is to consider whether there is sufficient agreement on the material facts to enable the court to decide on the applicability of section 19A.If not, a preliminary proof was required.If there was sufficient agreement as to the material facts, then the court should adjudicate on the matter.
• [9]Mr Paterson developed his submissions and presented these in two chapters.In the first, concerning the legal principles, he looked first at the “high level” principles derived from the cases and he then took the court to other cases as illustrative of those principles.In his second chapter he examined the pursuer’s pleadings.
• [10]Mr Paterson began by making extensive reference to the opinions of the Second Division in the case of Forsyth v A.F.Stoddart & Co Ltd 1985 SLT 51.The outcome of that case was to hold that the lower courts had erred by adopting too restrictive an approach to cases under section 19A, either by confining themselves to the three factors referred to by Lord Ross in Carson v Howard Doris Ltd 1981 SC 278, or by approaching the application of the power under section 19A as one to be used “sparingly”.With these correctives in mind, Mr Paterson referred to other passages in Forsyth to the effect that:
  1. The onus is on the pursuer to persuade the court that it is equitable to exercise the discretion under section 19A in her favour;
  2. The discretion is unfettered;
  3. The court should look at all of the circumstances (i.e. it should not confine itself to the three factors identified by Lord Ross in Carson);
  4. A pursuer is responsible for the acts and omissions of her own agents;
  5. The court can consider the weight and strength of any alternative remedy; and
  6. It is in the nature of every case that either the defender will lose the benefit of a cast iron defence of time-bar, or, if the discretion is refused, that the pursuer’s case will end.
• [11]In relation to an alternative remedy a pursuer may have against her agents, it was relevant to consider the fact that a pursuer would have to prove the negligence of her own agents, and would also have to prove the negligence of the original defenders.However, the alternative remedy against her agents represented a “second string to her bow”, whereas a defender had only one string, being the limitation defence.
• [12]He next turned to a decision of Lord Drummond Young in the Outer House in the case of B v Murray 2005 SLT 982, and the subsequent report of it in the House of Lords sub. nom. AS v Poor Sisters of Nazareth 2008 SC 146.In B, after a review of a considerable body of caselaw from the UK and the commonwealth, Lord Drummond Young set out the policy rationale underlying limitation statutes: see paragraphs [20] to [29].Among the factors Mr Paterson emphasised from these passages were the loss of evidence, both in terms of actual loss of material but also comprehending the decline in quality of the evidence that is available, and the fact that evidence might also have disappeared without anyone now knowing that such evidence had once existed.Further, the enactment of a limitation period should not be regarded as an arbitrary cut off point, but as reflecting the considered judgment of the legislature that disputes should be litigated within a particular time.It should be regarded as the general rule, and any extension provision was to be regarded as the exception.The corollaries to these considerations were that the onus was on the prospective pursuer to justify the extension and, second, the court must consider the injustice or prejudice that would be suffered by the parties having regard to the policy rationale underpinning the limitation statute.In respect of that last matter, Mr Paterson also founded upon the observation of Lord Drummond Young, at para [27], that “if a defender can show actual prejudice in defending the action or, the real possibility of significant prejudice, it will normally not be appropriate to grant an extension”.The House of Lords had approved Lord Drummond Young’s observations.
• [13]A further factor that was relevant, Mr Paterson submitted, was the failure of the prospective pursuer or her agents to take any (or adequate) steps during the triennium.In this case, he said, there was no notice of any kind to the defender until well after the expiry of the triennium.
• [14]He next turned to consider three Outer House cases said to illustrate the application of the foregoing principles.In each, a pursuer’s case under section 19A was dismissed as irrelevant.In particular, he referred to the unreported decision of Lord Brodie in Leith v Grampian University Hospital NHS Trust [2005] CSOH 20; of Lady Smith in Bates v Dr George and Others [2012] CSOH; and of Lord Uist in Irving v The Advocate General for Scotland [2012] CSOH 103.In Leith the court had dismissed a pursuer’s case at procedure roll because there were insufficient averments to establish a relevant case for the exercise of the discretion under section 19A of the 1973 Act.Mr Paterson urged the same result in this case.He referred to the following factors that were present in Leith: namely, a failure on the part of the pursuer to explain how time-bar had been missed; and the necessity of setting out fully how the agents had been negligent in missing the limitation period.Within that case reference was made to an observation of Lord Clarke that the power under section 19A was not an “automatic release” from the consequences of the pursuer’s representative’s negligence.
• [15]In that case it was contended that the pursuer would suffer prejudice if the discretion was refused, because the prospects for any action of negligence against her own agents were uncertain.(Parenthetically, Mr Paterson pointed out that, in contrast to the position in Bates, there was in this case not even an admission that the pursuer’s agents have been negligent.) In Leith, Lord Brodie had held that the uncertain prospects for the pursuer’s separate action based on the admitted negligence of her legal representatives was insufficient, as that was cancelled out by the prejudice to the defenders of the loss of the limitation defence.Mr Paterson disputed the correctness of this proposition.In Leith Lord Brodie had held that in the absence of any other factors which made it equitable to exercise the discretion, the court had declined to do so in the pursuer’s favour.Mr Paterson argued that the case was very similar to the present one, which should be dismissed.
• [16]From the case of Bates, Mr Paterson relied on the observations of Lady Smith that the absence of a full and frank explanation of how timebar had been missed was a factor that weighed against the exercise of the discretion.From the case of Irving, he relied on the fact that the pursuer in that case had not provided an explanation for her own delay.
• [17]From these cases he derived the following propositions:
  1. Any extension of a limitation period would impose a liability in a defender he otherwise would have escaped;
  2. That did not constitute a “windfall” for a defender, but was the appropriate balance reflected in the legislation;
  3. Any extension of the a limitation period under section 19A does result in prejudice to the defender and should be weighed in the balance against the pursuer;
  4. It is for the pursuer to satisfy the court that it is equitable for her action to proceed;
  5. The burden was on the pursuer to plead the facts and circumstances justifying the balancing of equities in her favour;
  6. The pursuer is answerable for the failure of her legal representatives;
  7. The fact that a pursuer has a remedy against her own solicitors weighs in the balance against her (this was the “second string” to her bow, as referred to in some of the cases);
  8. Where a limitation period is missed, the pursuer must plead a frank and full explanation of how that occurred;
  9. If the pursuer fails to do that, then this weighs against her in the balance; and
  10. If there is nothing to weigh in the balance in favour of the pursuer, the discretion must be refused.
• [18]Before turning to the pleadings, Mr Paterson set out the procedural background.I do not need here to repeat that, but the thrust of his submission was that the pursuer’s case was raised in July 2013 and no admission that it was time-barred was made until two and one-half years later, in January 2016.This delay was compounded by the fact that the defenders had intimated answers within days and had raised the issue of time bar.He also referred to the pursuer’s lack of averments under section 19A and to the defender’s call in the pleadings that had been unanswered.
• [19]In relation to the pursuer’s pleadings, his attack was on those averments I have set out above.Under reference to proposition (8), in para [17] above, he argued that the pursuer failed to set out a full and frank explanation of the failure to raise proceedings timeously.In particular, he noted that the pursuer’s expert had given his views in late 2011 and had consulted with the pursuer in August 2012, yet nearly a full year passed before the action was raised.Nothing appeared to be outstanding, in terms of investigations, from late 2011 or at least from August 2012.The delay thereafter was inexplicable.Mr Paterson also referred to an email from the defenders’ fifth Inventory, where the pursuer sought a sist because of the “present lack of expert evidence”.This, he said, compounded the pursuer’s agents’ error in misunderstanding the time-bar issue. In any event, this explanation in the email was not reflected in the pleadings.This was suggestive of a lack of candour.It cried out for an explanation, but none was given.In the absence of an explanation, these averments were irrelevant.The pursuer had an alternative remedy against her agents.This was a factor that weighed against the exercise of the discretion.Furthermore, the pursuer’s averments that that defender would suffer no prejudice were irrelevant.Looking at matters as a whole, there was nothing to tip the balance in favour of the pursuer.

   

  Pursuer’s submissions

• [20]For the pursuer, Mr Pugh resisted the defender’s primary and alternative motions.Instead, he sought a proof before answer on all pleas.He argued that the pursuer had sufficient relevant averments to engage section 19A of the 1973 Act.
• [21]In relation to the case-law, he cited Carson and counselled again the error the court there fell into, which was to approach the discretion under section 19A too narrowly.Under reference to Forsyth, it was argued that the court had an unfettered discretion.He accepted the observations of the House of Lords in AS (at paras [23] and [25]) that if the defender could show prejudice, this operated with full force and must be given effect to and that the burden was on the pursuer.He accepted the legislative policy underpinning limitation statutes.
• [22]He rejected the contention from some of the cases, albeit not advanced by Mr Paterson, that the power under section 19A was to be used “sparingly”.The correct test was for the court to ask: was it equitable in all of the circumstances for the pursuer’s case to proceed? This was not, he argued, readily susceptible to discussion at procedure roll.For this reason, the court should allow a proof at large, not least because this was how the court would ascertain if there were real or forensic prejudice.It is only if the court concluded at this stage that the pursuer’s pleadings were fundamentally irrelevant could there be a dismissal.
• [23]Mr Pugh then referred to A v N 2009 SC 449.In that case, the Inner House had overturned the Lord Ordinary’s dismissal of the pursuer’s case as irrelevant.He relied on the court’s observation(at para [11]) that a pursuer’s pleadings will be irrelevant only if the defender is able to show that even if all of a pursuer’s averments were proved the court was bound to refuse to exercise the discretion in her favour.The court had noted that the strength or otherwise of the other factors could not be assessed without enquiry.
• [24]In relation to the cases of Bates and Leith, Mr Pugh argued that these were of little assistance.He accepted the 10 propositions advanced by Mr Paterson, with the following qualifications.The caveat for proposition (3) was that the court did not fall into the error identified in Carson.He accepted proposition (7) in the abstract but this is was not determinative, as A v N illustrated.In relation to proposition (8), it was not a question of candour.It was not appropriate for the defender to call for, in effect, privileged information and the pursuer was under no obligation to plead this.Finally, in relation to (10), he accepted this in the abstract, if the pursuer was unable to say more.However, the prejudice a pursuer can advance is that of the loss of her right of action, if refused.There was no other prejudice.There cannot be anything else in the balance for the pursuer, other than this prejudice.
• [25]Turning to the pleadings, he went through the averments in statement 4 setting out the chronology of the various treatments and procedures the pursuer underwent in 2009 and 2010.It was now accepted that time began to run from some point in February 2010.He also looked at aspects of the defender’s answers. He criticised the fact that the defender was not offering to prove what he did in relation to the pursuer, but what he would have done as a matter of practice. This, it was said, was relevant to the mode of inquiry. Under reference to Statement 6 of condescendence, he emphasised that the pursuer had numerous concerns. As a consequence, the pursuer’s solicitor did not have a clear time-bar date to work from. This was to be contrasted, for example, with a simple road traffic case.There was no lack of candour on the part of the pursuer. The pursuer’s agents had been faced with a detailed complaint. They had investigated it and there were grounds of concern for which there was no expert support. It was argued that up to January 2013 there was no negligence on the part of the pursuer’s advisers because, up to that point, they had been undertaking further investigations and there was, at that point, no support from an expert. The pursuer had supplied a full explanation of the instruction of her agents from the point of their instruction until the expiry of the triennium.
• [26]In respect of the defender’s averments, there was no forensic prejudice because the defender was not seeking to prove what he had actually done or advised, simply what he would have done. It was not said that the defender’s notes were missing.In relation to the defender’s calls in the pleadings, the defender could not rely on these for the purposes of a relevancy challenge.

   

  Defender’s reply

• [27]In his reply to Mr Pugh’s submissions, Mr Paterson argued that the mere fact that the pursuer’s claim had multiple complications did not justify the relaxation of the time-bar. He rehearsed the chronology of the pursuer’s abortive steps to secure support for her action. He was particularly critical of the period of inactivity from August 2012 to February 2013 following the unhelpful response of the pursuer’s then expert. He did not accept that any error by her agent as regards time-bar was not causative of the loss.
• [28]In respect of the cases referred to by Mr Pugh, Mr Paterson sough to distinguish A v N. He resisted the disposal in that case, which was a proof at large. In this case, he argued it would be grossly unfair to require the defender to give evidence until the section 19A issue had been resolved. The fact that there was a clear action against the pursuer’s agents in A v N was, it was said, another point of distinction.
• [29]In relation to the observation of Lord Brodie in Leith, to the effect that the prejudice to the pursuer in refusing to exercise the discretion cancelled out the countervailingprejudice to the defender if a time-bar defence were lost, he argued that this was wrong.This could be said in every case under section 19A, and did not advance matters. It was, he said, incumbent upon the pursuer to advance some additional consideration to justify the exercise of discretion under section 19A in her favour.In respect of her averment that the case against her own agents would be “weak”, there was no fair notice as to why this was the case. Her case should be dismissed.

   

  Discussion

• [30]In the light of the arguments presented, it may assist to recall the scope of the issue before me. This is a debate on the relevancy of the pursuer’s averments under section 19A of the 1973 Act. Notwithstanding this, parties’ arguments ranged wide over the cases and the issues that would be relevant for a later stage, if the pursuer’s averments are relevant, namely, whether the pursuer has established that the discretion under section 19A should be exercised in her favour. It is only at that later stage that a question such as that posed by the Mr Pugh (noted at para [22], above) would arise, and to which many of the principles set out by Mr Paterson (as I have recorded at paras [10] or ]17], above) would come into play. The question for the court at this stage is not whether the discretion under section 19A should be exercised; it is, put simply, whether she has pled a relevant and sufficient basis for that issue to proceed to proof -whether that be a preliminary proof (being Mr Paterson’s alternative position) or proof at large (Mr Pugh’s primary position).
• [31]It is apparent from the averments of facts relating to the period from the two problematic procedures in February 2010 and up to the corrective surgery in July 2010, that the pursuer was dissatisfied with the treatment she had received and that she was actively seeking to address this. It is stated that she contacted her agents in November 2010. What followed, it is said, were “significant investigations”, the recovery of medical records and approaches to experts. This was said to be “not straightforward” given “the range of the pursuer’s concerns”. There is then reference to a Mr Sivarajan, who was instructed in “mid‑2011”, but who, in late 2011 produced an unfavourable report. Further expert advice was sought, but not obtained, to support a case based on the sentinel node biopsy carried out in September 2009.Mr Sivarajan remained unsupportive, notwithstanding further concerns of, and a detailed analysis by, the pursuer. In December 2012, Mr Sivarajan advised that he was on sick leave until January 2013.
• [32]It would appear that the pursuer’s agents did not then appreciate the imminent expiry of the triennium in February 2013. Notwithstanding the approach of the expiry of the triennium, they advised the pursuer to obtain a further expert report. A Mr Parkhouse was instructed in January 2013. He met the pursuer in May 2013 and issued his report in July 2013.Against this background, it is averred that the pursuer’s agent was “at all material times, conscious of the need to raise proceedings timeously” and that the pursuer’s agent “considered that upon raising the action [it] was timeous”. However, those averments have to be read in the light of the admission, more recently made and recorded at the beginning of statement 6 (quoted at para [4], above), that the pursuer’s action was time-barred. It is correctly noted that the pursuer’s agent was “also aware of the need for a proper basis upon which to make allegations of negligence”. However, the averment in relation to the expert is put somewhat curiously: it is said that Mr Parkhouse “supports the pursuer’s concerns surrounding the advice she was given”. It is also averred that his report was support “for certain allegations”.If a party had a very strong case, that might be a relevant factor to aver to weigh in the equities in favour of the pursuer. That is not averred here. In the main, the pursuer’s averments narrate unsuccessful attempts over a period of time to secure the necessary opinion to support a case of professional negligence. On her own averments, the pursuer’s case required “significant” investigations; it was not “straightforward” and she struggled to secure a supportive expert opinion. While the pursuer nowhere avers the strength or otherwise of the prospects for this action, and which might be a relevant factor to aver in respect of the invocation of section 19A, the foregoing narrative is suggestive (I put it no higher) that if her action were to proceed, it will be a difficult one. From that one might infer, even on the basis of the present pleadings, that the proof is not likely to be a short one.It may also be inferred that the defender may face at least some of the same challenges as faced by the pursuer. Be that as it may, to paraphrase A v N (at para. 11), the question at this stage is: has the defender showed that even if all of the pursuer’s averments invoking section 19A were proved, the court would be bound to refuse to exercise the statutory discretion in her favour?
• [33]The pursuer’s averments disclose that from the start of the triennium she was dissatisfied with the medical advice or treatment she received, and that she took steps to investigate and support her position. There is no suggestion that she was deflected in any way or that any delay was caused by the recovery of records. It was the combination and complexity of her concerns that appear to have rendered it difficult to secure an appropriate expert and one who was supportive. Indeed, at the point where the triennium expired, the pursuer’s agents had not yet secured a supportive expert report despite sustained efforts to do so. What these averments disclose is, in a sense, what should be done by a prospective pursuer during the currency of a limitation period:to instruct lawyers about a possible complaint; to secure the necessary documentary evidence; to seek advice and, for the purposes of a professional negligence case, to ascertain whether one can marshal supportive expert evidence, too. The fact that all of that was done, but to no avail, might be said to militate against it being equitable for more time to be afforded for this to be done.To put it another way: not every case a party wishes to raise is well-founded. Has the pursuer pled anything about this to invite the exercise of the discretion in her favour, notwithstanding the apparently problematic basis of her action? Certainly there are no pleadings to invoke this history, as it were, as an equitable factor in favour of the extension of the triennium. There is, in fact, a paucity of averments expressly setting out what is the equitable basis for allowing the pursuer’s case to proceed under section 19A.
• [34]The pursuer avers that she will be prejudiced if her action is not allowed to proceed because she will “lose her remedy for serious and ongoing injury”.The prejudice to a pursuer by the operation of a time-bar is itself unremarkable.As Lord Drummond Young explained in B, it is in the very nature of a statutory limitation to cut off claims in furtherance of the objective that claims be litigated within a prescribed period of time.Every prospective pursuer whose case is cut off by the operation of a time-bar will be able to assert prejudice. That form of prejudice will itself clearly not suffice, and to hold otherwise would potentially deprive limitation provisions of their force.
• [35]What then of the other factors the pursuer avers?
• [36]The pursuer avers that the defender will suffer no prejudice if her action were permitted to proceed. Somewhat inconsistently with that, she then avers that “any prejudice due to lack of proper recording (the existence of such prejudice being a matter not accepted by the pursuer but being a matter relied upon by the defender)is…of the defender’s own making in not properly maintaining records of consultations”. This latter averment, acknowledging as it were (but not admitting) the defender’s assertion of prejudice, does call into question the basis for the pursuer’s bare averment that the defender “will suffer no prejudice”.Given the tension inherent in these two averments, and having regard to the very complex history of treatment and advice that is to be challenged, I do not accept that these are sufficiently specific averment to support any inquiry into this issue.
• [37]Finally, in relation to the responsibility of the pursuer’s agents, these averments are equivocal. On the one hand, there are the averments to the effect that the pursuer’s agents believed they were raising the action timeously in July 2013.There is a tension between this averment, and the earlier admission that the action was time-barred.There is no further explanation of how the pursuer’s agents held these seemingly inconsistent views. There is no explanation of when the pursuer’s agents changed their views, nor how these views are to be reconciled. It is implicit that the relative inactivity, or lack of alacrity, between January and July 2013 is attributable to the pursuer’s agents’ error regarding the expiry of the triennium. Taking the pursuer’s pleadings as a whole, the averments are not as candid or as full as they might have been. It is against this background that the averment, to the effect that “any purported alternative remedy the pursuer may have against her enemy would be weak”, must be assessed. While on the cases, the availability of a pursuer’s “second string” (being the action against her agents) can be a relevant factor informing the exercise of the discretion under section 19A, in my view, this averment is so fundamentally inspecific as to be irrelevant.Nothing more is advanced in support of any case under section 19A of the 1973 Act.
• [38]Once one removes the prejudice to the pursuer of not being able to proceed, which is a consideration that arises in all cases under section 19A, there is in my view no sufficient basis pled which (even if proved) would afford any equitable basis to justify the court in exercising the discretion under section 19A in favour of the pursuer’s case proceeding.

 

Decision
Approaching the matter as one of relevancy, I find that the pursuer has not pled a sufficiently specific or relevant case to satisfy the court (as the onus is on her to do) that it would be equitable to allow her action to proceed.  It follows that her action falls to be dismissed. I shall therefore sustain the defenders’ first plea in law, and shall dismiss the action. I shall meantime reserve any question of expenses.