Accident Victims - Delay in Consulting a Solicitor Could be Fatal to Your Claim

If you have suffered an accident, you should contact a solicitor without delay to avoid running a real risk of your compensation hopes being stymied. In a case on point, a man who was catastrophically injured whilst on a motorcycling tour of Scotland came within an ace of having his multi-million-pound damages claim dismissed.

The middle-aged man, an English resident, suffered spinal injuries in a collision with a car near John O'Groats and will always require round-the-clock care. His claim against the car's driver was valued at in excess of £9 million. The driver and his insurers denied liability for the accident.

Although proceedings were issued on the man's behalf in England, the location of the accident meant that Scots law applied to the case. Under the legal regime north of the border, the claim had to be formally served on the defendants within a three-year limitation period, with time beginning to run on the date of the accident. That deadline was, however, missed by about seven weeks. In those circumstances, the defendants argued that the claim should be dismissed.

Ruling on the issue, the High Court noted that the failure to serve the proceedings within the limitation period provided the defendants with what would ordinarily be a complete statutory defence to the claim. Scottish law, however, provided the Court with a discretion to waive the time limit if it seemed equitable to do so.

Exercising that discretion in the man's favour and permitting his claim to proceed to trial, the Court noted that both sides had done much preparation and investigatory work in respect of the case prior to service of the proceedings. Although negotiations with a view to settling the claim had stalled after the man suffered a heart attack, they had previously reached an advanced stage.

Given the severity of his injuries and his lifelong care needs, the real prejudice to the man if his claim were dismissed without a full hearing was clear. The delay in serving the claim was not trivial but, if the case were allowed to proceed, the only significant prejudice that would be suffered by the defendants would be the loss of their statutory limitation defence. The balance of justice weighed in favour of granting the short extension of time required to validate the claim.