Wednesday, November 16th, 2016
Perth & Kinross Council v Scottish Water & Millglen (Glasgow) Limited [2016] CSIH 83
The Inner House has clarified the considerations when a party seeks to amend after the expiry of the prescriptive period by changing the identity of the defending party. In summary, after the prescriptive period had expired, the pursuers’ solicitors realised that they should have sued Scottish Water (a statutory body) and not Scottish Water Limited (an essentially dormant company).
The Lord Ordinary allowed the amendment, and the Inner House agreed with him as to the considerations to apply. The Inner House indicated that what the courts must do is to look at the reality: the substance and not the form. As both parties knew who was intended to be sued, it would be artificial to apply the rules on prescription too rigidly. Accordingly, despite the passing of the five year period, the amendment could be allowed even though in a highly technical sense a new party was being sued after the expiry of the quinquennium.
Andrew Smith QC of Compass Chambers appeared for the successful Pursuers and Respondents in both the Outer House and the Inner House. A copy of the Opinion can be found here.