Wednesday, September 13th, 2017
Christopher Brits v Kilcoyne & Co  CSIH 47
Robert Milligan QC of Compass Chambers appeared for the pursuer/respondent in this Reclaiming Motion heard by the Extra Division of the Inner House.
This was an action for damages for professional negligence in which the respondent sued his former solicitors - the defender/reclaimer - in respect of their failure to timeously raise an action for damages for personal injuries. The triennium expired on 9 April 2012. The defender had failed to raise a court action against the pursuer’s employers by that date. The pursuer instructed new solicitors to act on his behalf and a Summons was served on the employers. Defences were lodged on behalf of the employers, which contained a defence of time bar. That action was eventually concluded by extrajudicial settlement at a figure less than the full value of the claim and so the pursuer alleged he had sustained a loss as a result of the defender’s failure to raise proceedings timeously.
At first instance
The issue before Lady Stacey at Procedure Roll debate was the relevancy of the defender’s averments to the effect that an email from the employer’s loss adjuster to the pursuer’s solicitor stating the employer would ‘not be taking the time bar defence’ amounted to a waiver, and so the pursuer’s solicitor’s failure to plead that the email constituted a waiver broke the causal connection between the defender’s failure to raise proceeding timeously and the pursuer’s loss.
Having heard submissions for both parties the Lady Stacey sustained the pursuer’s plea-in-law as to the relevancy of the defender’s averments and refused to admit those averments to probation. It is against that decision that the defender reclaimed.
Counsel for the reclaimers submitted that the Lord Ordinary erred in law in reaching her determination; that the email in question constituted a valid, unequivocal, unambiguous and irrevocable waiver of the insurer’s rights to plead time bar at any time in the future and that the Lord Ordinary’s reasons for reaching the conclusion which she did were insufficient.
Counsel for the reclaimer further submitted that the Court required to construe the wording of the email in context and required to hear evidence on that context.
The Court in arriving at its decision emphasised, firstly, that for a statement to constitute a binding waiver of a legal right, it must be expressed in clear and unambiguous language, and, secondly, that it will often be necessary to construe the statement by reference to the context in which it was made on the basis of what a reasonable recipient, with knowledge of the background, would have understood by the document in question. It was emphasised however that if a party intends to rely on surrounding facts and background, as context for the proper construction of a document, it is necessary for that party to make averments as to what those facts and circumstances are and why they are relevant to the construction of the document.
The Court held that the reclaimer in this case made no such averments and, as such, it was unable to conclude that the email was a clear unequivocal, unambiguous, irrevocable waiver of the right to plead limitation in all time coming. Such a construction was said to be an inherently unlikely one.
The reclaiming motion was refused.
This case provides a reminder of the necessity, where a party intends to rely on surrounding facts and background as context for the proper construction of a document, to make averments as to what those facts and circumstances are and why they are relevant to the construction of the document.
A copy of the decision can be found here.