The case Spencer v Cruddas  CSOH95 is available for you to read and then answer the following questions.
To fully comprehend the case, you might need to examine the general law that supports the legal dispute in this instance.
What were the RELEVANT facts?
(ie. identify and explain which facts are critical to an understanding the legal dispute.
What was the LEGAL issue that the Lord Ordinary had a need to settle?
What arguments were put forward by the pursuer or the defender?
How were the case laws used by the pursuer as well as the defender to support their arguments?
Please describe the judge’s reasoning, which ultimately led her to the conclusion she reached.
Lady Clarke’s insights impressed you as the Scottish Government.
So, you’ve decided to legislate to limit the judiciary’s discretion in applying s.19A of the Prescription and Limitation (Scotland), Act 1974 by mandating judges to use the factors identified by Lady Clarke.
Create a legislative section that accomplishes this.
Include a comment explaining your approach to this task.
Relevant Fact About The Case
This is a case where the passenger riding behind the first defender was injured.
The first defender tried overtake the Toyota MR2 motorcar that was being driven on Main Street, Castletown by the third defender. But the third defender turned right.
The motorbike and motorcar accident caused various injuries to the pursuer.
The first defender’s solicitor suggested that he claim damages from both the defenders separately or together (Journal Online 2018, 2018).
The court was trying to decide whether the current case should be allowed to proceed as per section 19A, 1973 Prescription and Limitation Act.
The accident occurred over three years, 6 July 2014. According to section 17 of the 1973 Act, the action was time-barred.
Lady Clark mentioned that there was a case against the solicitor as a result of professional negligence.
As the importance of the time-bar provision was well known, the solicitor had many options and strategies.
Because the summon was not being sent to the third defendant, the solicitor could ask the court officer to do so (Kemp 2018, 2018).
The solicitor did not seek permission from court to extend the three-month deadline for sending summons to the third defense because he had not served the summons yet.
It is unusual that this case was not because the first summons had been received within the triennium by the first and the second defenders. However, the defenders had been sent to them before the triennium expired.
It was technical that the formal service was not interrupted and it was also technical because the third defender was unable to receive summons due to postal issues. However, there was no problem for the second and first defenses.
A legal dispute that The Lord Ordinary had To Resolution
This case involves a chaser who was a passenger in a motorbike accident that resulted in him being injured on the 6th July 2014.
His solicitor advised him to file an action in court to obtain damages for both the individual and joint injuries from each of the three defenders responsible.
To do this, each defender must have a summons served on them individually (Demick (2018).
First, the fourth and fifth defenders served to summon without difficulty. The third defender failed to appear on two occasions due to postal issues.
Because the third defender failed to receive summon, the action could not be served on the third defenders within the deadline to present the defenders. It must be filed in court within three month of the day that the summons was being signed at the court.
The summons was requested by the solicitor of the pursuer, but it was refused by the General Department of the Court of Session in 2005 (Bell Rehwoldt).
The revised summons was successfully sent to the fourth and fifth defenders three years later after the personal injuries action had been filed.
The solicitor requested that the court officer serve the summons to third defenders because of the prior issue. This was done successfully.
The solicitor for the pursuer was dependent on section 19A (Prescription and Limitation (Scotland), Act 1973) which may require the court to permit the case continue from where it is now.
Arguments made by The Defender and the Pursuer
After the successful submissions of the second summons for all four defenders, third and fourth have resolved the matter out of court but the first two defenders decided to stick with the claim that was time-barred and the pursuer should not continue with the case.
The solicitor of the pursuer relied on section 19A (Prescription and Limitation (Scotland), Act 1973) to force the court into allowing the case continue from its current location (Evans (2018)).
The solicitor for the pursuer said that the court could allow the proceeding since the first summons had been sent to the first and second defendants in good time. They had also filed defences.
The solicitor also suggested that it was a technical matter that the summons was not sent to the third defense because there was a postal problem. This issue was not connected to the first and second defends.
The third and fourth defense attorneys have accepted liability. Damages have been also paid to remedy the problem.
Lady Clark noted that the 1973 Act allows the court to be broad in its analysis of the particular facts and circumstances of each case (Foulis 2018, 2018).
Her review revealed that the 1973 Act provides significant protection to the defenders.
Lady Clark noted that the first and last defenders appeared to have taken part in the action, and abided by the rules and procedures.
They may be subject to “significant prejudice” if they can’t defend themselves within the prescribed time limits.
As it might encourage late claims, the judge can’t rule in favour of a pursuer.
The Lady Clark considered that the Solicitor for the pursuer should be able to bare the claims. She stated that there was a strong prima facie case against the professionalism’s negligence (Jolowicz 64).
Because of the postal problem, the summons wasn’t being served to the third defense attorney. The solicitor for the pursuer might have asked the court officer the same as the second time to serve the summons.
Due to the additional cost involved, he did not do it again.
After the solicitor of the pursuer requested that he submit the summons, and it was rejected by the General Department of the Court of Session at that time of the proceedings, he didn’t request permission to extend the three-month period so that the summons could be submitted for calling the defense attorneys which were not served up to that point.
The Defender and the Pursuer use case law in their arguments
Because of this oversight, the solicitor-in-suit failed to extend time for publishing summons.
Because the cost was not paid and summons were filed, the third defender was subject to the same time period.
The time bar required dismissal of the first and second defenders.
According to section 19 A of Prescription and Limitation Act 1973, the pursuer could argue that action should have taken place because the summons had been received by the defense within the prescribed time.
They had also sent their defenses within that time frame (Kirton, Madunic and 2009).
While the technical aspect led to the demise of the formal service, it did NOT affect the following defenders.
Indemnity was also claimed to have been paid.
The solicitors’ demand for a remedy will raise additional questions about quantification and delay. Special processes will not be available to the reparation action.
The summons was received as all the defenders were fast approaching the end of the limitation period.
General department did not accept the summons.
The solicitor filed a complaint under section 19A against both the defenders and the general department (Legislation 2018).
The defenders were paying the interim damages but admitting liability.
Judge noted that the solicitors for the pursuer could have taken many actions within the prescribed time frame to avoid the time bar problem.
Judge’s Reasoning, Which Ultimately Lead Her To Resolve This Case
The court session also included a procedural hearing in which the arguments were heard.
The terms and conditions set out in section 19A, Prescription and Limitation Scotland Act 1973, were the basis of the representation of the pursuer’s solicitors.
The provisions that allow the judge to exercise discretion in deciding whether the actions are taken can be used by the court if the personal injuries case is initiated after a three-year period (McCartney (2018)).
The circumstances can dictate the outcome.
Because the first summons was received on-time by the second and the first defenders, they also defended, it was argued that action should be taken to allow the proceeding.
Because of a technicality that did not apply to the second and first defenses, the formal service was not rendered for the third defender.
Lady Clark pointed out that section 19A, Prescription and Limitation Scotland (Scotland), Act 1973 gives the court discretion to act on the specific facts and circumstances of each case.
Her view was that it was important to assess and determine the statutory scheme, which is being set forth under the 1973 Act. This provides protection for the defenders.
Her observation of the first and second defenders was to verify that they had engaged in the actions and adhered to the rules and regulations. Scot Courts, 2018.
The judge deemed that injustice to the defendants will outweigh injustice for the pursuer.
Lady Clark also considered the possibility of a remedy for the pursuer.
Judge also noted professional negligence.
Lady Clark said that there were many actions that the solicitors of pursuer could have taken to address the problem of time bar.
Judge observed that neither the solicitor of the pursuer nor their insurers would have used pragmatic approaches.
Her statement also indicated that she had not considered the case since pursuer would not be entitled to a remedy (Scottish Government (2012)).
Lady Clark did not use the discretion, and she denied the claim.
The judge’s reasoning was focused upon the significance of imposing limitations that provide protections to wrongdoers when the defense had fully complied with the rules and regulations.
The limitation rule in Scotland also protects the defenders.
The judge examined the facts and circumstances in the case and exercised his discretion (Shaw (2003)).
Lady Clark was not able to use discretion in light of the facts and specific circumstances.
She observed a professional negligence. She expected the solicitors of her pursuer to adopt pragmatic approaches.
The case was not filed because the solicitors representing the pursuer had many options and actions to resolve the problem of the deadline bar.
Because the defenders had fully followed the legal procedures and rules, the judge’s primary focus was to protect them (Scottish News 2018).
The judge should exercise discretion depending on the facts and the circumstances.
Judges should not abuse their authority and can learn from Lady Clark’s decision.
Limitation is considered very important in the procedural rules.
The limitation restricts the court from proceeding with the action after the end of the specified time frame within which the law must be brought (Walker (2015)).
The sections 18 and 17 (Prescription and Limitation (Scotland), Act 1973) are monitored for personal injury damages actions.
The court may not allow the defense of the time bar to be raised by the defender.
The judge of court can decide on the basis the evidence and laws.
Lady Clark pointed out that section 19A of Prescription and Limitation Scotland (Scotland), Act 1973 grants the court wide discretion on the basis the particular facts and situations.
But, the judge recognized that section 1973 Act gives protection to defenders.
It is currently being determined and evaluated whether Lady Clerk was fair in her decisions while reviewing the case (Tomkins (2016).
Before she took on the case, she had carefully reviewed every aspect of the regulations and legal rules.
She didn’t abuse her power and applied law in a proper manner.
Lady Clark’s case should be an inspiration to all judges.
While the court has the discretion to act, it is crucial to make sure that the limitation rule of Scotland and regulation Scotland offer protection to the defenders.
Therefore, the court should examine the facts in each case when it exercises its discretion.
But, time-barred proceedings should not be rushed without fully considering whether they are fair to proceed.
Remember that pre-action negotiations take into account the limitations of each case.
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