I sustained serious injuries to my shoulder, neck and back. I have not been able to return to my old trade as a plasterer and I am now reliant on jobseekers allowance. I believed I had legal cover with my policy of insurance but apparently it excluded claims outside of the United Kingdom, so I instructed solicitors here in Scotland to pursue a claim against the Spanish driver.

I was originally impressed with my solicitors who sent very aggressive letters on my behalf. Liability was admitted after a few months by an English claims agent working on behalf of the Spanish insurers. After a year it went very quiet and knowing that the three year limitation period was coming up I asked my solicitors for an update and they told me that I did not have a case. They have also suggested that I take a second opinion from another solicitor.

I am not at all clear why what I thought was a straightforward case is now suddenly died. All they would say is that there were some procedural problems.

Name withheld

Unfortunately your Scots solicitors have dabbled. In Spain there is not a three year limitation period but a one year limitation period. Local Spanish practitioners have methods of extending the limitation period, and there is a general exception for ‘freezing’ the limitation period when there are meaningful negotiations going on.

However, as a foreign practitioner I insist on the issue of Spanish cases within the first year. I believe the Spanish insurers have rejected your case on the basis of the Spanish one year limitation period and it is the Spanish, not Scottish, limitation period which applies in your case. They are right to take the limitation point.

Secondly, as you were injured in Spain you cannot use the English or Scots method of compensation, which is markedly different to Spanish law. In Spanish law your injuries are assessed on the professional level of your work; and you are a skilled tradesman. You are only entitled, as a matter of European treaty law, to the Spanish measure of damages and these will be lower in Spanish law than they are in both Scots and English law.

Had your solicitors brought the claim in time, then you would have achieved a substantial sum. You have a pretty well cast-iron case in negligence against your former solicitors. You need to approach solicitors who are experienced In dealing with European claims work.

It would be better for you if you could resurrect your original Spanish claim. Your new lawyers will need to take advice from an experienced Spanish lawyer as to whether or not, in Spanish law, your claim could be resurrected under the ‘negotiation’ extension to limitation. If not, your new solicitors will have to sue your former solicitors in negligence, and you will achieve a sum pretty well the same as though the job had been done properly in the first place.

Andrew Dalton

Fast Bikes Mag October 2015