A lady who was paralysed in a motor vehicle accident, when she was only 4 years old, has been given permission by the Supreme Court of Appeal to sue her former attorneys for under-settling the case. The judgment of Kweyiya v Charles MacLeod was delivered on 27 March 2013 and a copy of the judgment can be downloaded here.

The attorney defended the case on the basis that she should have sued him within one year of turning 21 years old and her defence was that when the case was settled, she was only 12 years old, and it is perfectly reasonable that at that time she relied on her mother to act in her best interests and had no reason to believe the case had been settled any other way than appropriately. She came across information in April 2006 which indicated to her, at that time, that the matter had not been properly settled and she had sued within three years of that date. The Court held that prescription only began to run when she discovered the information about how her case had been settled and concluded that there was no basis on which to suggest she should have known she had a claim against her previous attorney, until such time as they supplied her with the documentation relating to the settlement of her case.

The judgment makes it clear that a case for negligence does not automatically prescribe three years later but only once the person who is alleging the negligence has knowledge of the minimum facts that are necessary to institute action. It does not mean, as the Court suggested, that a person can simply sit back and do nothing at all, and that will postpone the commencement of prescription. The test is what a reasonable person in that position would have done and the onus is on the defendant to prove a plea of prescription including the date on which the plaintiff obtained actual or constructive knowledge of the debt. The attorney, or the Fidelity Fund, will now have to, some 25 years after the settlement, pay out.