Aspects of the law of prescription
David Johnston QC
Gillian Swanson, Project Manager
This project has been completed. Please see our Report on Prescription to which is appended a draft Bill and extracts from the Prescription and Limitation (Scotland) Act 1973 as that Act might look if our recommendations were implemented. The Report is a review of certain issues within the law of negative prescription which can cause difficulty in practice. A summary, business and regulatory impact assessment, and news release are also available. The Scottish Government gave their initial response on 12 September 2017 to the report. We are delighted that the Prescription (Scotland) Bill (implementing our recommendations) was introduced into the Scottish Parliament on 8 February 2018. See now the Prescription (Scotland) Act 2018.
What is negative prescription?
Negative prescription establishes a time-limit within which a person who is aggrieved must raise his or her claim in court. If the time-limit is missed, the ability to pursue the claim is lost, since once the prescriptive period has expired the underlying right or obligation is extinguished.
What does the Report cover?
The Report covers the following:
- The scope of the five-year and 20-year negative prescriptive periods: It is recommended that the 1973 Act is not to apply where other primary or secondary legislation makes its own provision for prescription or limitation. Various additions to and further exceptions from the five-year prescription are also recommended; the policy is that all obligations should be covered by prescription unless there are policy reasons for excepting them. (Chapter 2)
- The discoverability test, that is to say the knowledge which a pursuer must have before the prescriptive period begins to run where damages are sought for loss or damage which was initially latent: A new test is recommended to address concerns about the limitations of the existing test. The recommended test has three strands; the creditor must be aware, as a matter of fact, that loss, injury or damage has occurred, that the loss, injury or damage was caused by a person’s act or omission, and of the identity of that person. (Chapter 3)
- The starting date of the 20-year prescriptive period in relation to obligations to pay damages: In order to provide a more appropriate balance between the interests of the pursuer on the one hand and the defender on the other, the Report recommends that for obligations to pay damages in respect of loss, injury or damage caused by an act or omission, the 20-year prescriptive period should begin on the date of the act or omission giving rise to the claim. (The start date is currently the date on which loss, injury or damage flowed from the act, neglect or default.) (Chapter 4)
- Ensuring that the 20-year prescriptive periods operate as true “long stops”: It is recommended that the 20-year prescriptive periods should not be amenable to interruption either by relevant claim or by relevant acknowledgment (in the case of section 7) or by relevant claim (in the case of section 8). It is also recommended that, in the interest of fairness, these prescriptive periods should be capable of being extended, where a claim has been made during the prescriptive period, until such time as that claim is finally disposed of or the proceedings otherwise come to an end. (Chapter 4)
- Contracting out: It is recommended that it should be competent to extend the five-year prescription of section 6 and the two-year prescription of section 8A but only for a limited period and subject to certain other conditions. Such agreements would enable parties to seek to negotiate an end to their dispute without the need to raise proceedings to preserve their rights. The Report also recommends that, except as provided by the foregoing recommendation, agreements to disapply or in any way alter the operation of any of the short prescriptive periods or the long-stop prescriptive periods, for example by shortening them, should not be permitted. (Chapter 5)
- Burden of proof: To clarify the law, it is recommended that where a question arises as to whether an obligation or right has been extinguished by prescription, it is for the creditor to prove that the obligation or right has not been so extinguished. (Chapter 6)
- Miscellaneous issues: The miscellaneous issues covered include the reformulation of section 6(4) of the 1973 Act (which deals with fraud, concealment and error), the extension of the definition of “relevant claim”, and clarification of the effect of a relevant claim. (Chapter 7)
The aim of the Report is to bring increased certainty, clarity and fairness resulting in a reduction in the need to resort to court action; and to promote a more efficient use of resources.
Our project on aspects of the law of prescription was Item No 7 of the Commission’s Ninth Programme of Law Reform.
Published project papers
July 2016 Collated responses
Media coverage of the project
If you require any further information about the Prescription project, or if there are matters you wish to raise, please email: firstname.lastname@example.org.
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