Limitation

Commissioner 
Lord Sandison

Team Members 
Lorraine Stirling,  Project Manager 
Evie Innes,  Legal Assistant

Our project on limitation is focused on three specific issues:

• whether the reasonably practicable test in section 17 of the Prescription and Limitation (Scotland) Act 1973 (“the 1973 Act”) requires to be amended,

• whether the court could benefit from a list of relevant factors to consider in exercising its discretion to override the three-year time limit for personal injury claims in section 19A of the 1973 Act, and

• whether an asymptomatic condition should no longer result in a time-bar preventing recovery of damages for a later-developing symptomatic condition.

See further details in relation to each issue in the “Scope” section below.

A review of limitation was announced in the Commission’s Eleventh Programme of Law Reform, following responses received as part of our consultation exercise for new projects. The responses sought a review of the three issues referred to above.

We have carried out a preliminary scoping exercise, and we are in the process of putting in place an advisory group of experts to support our work on the project as it develops. 

We plan on holding scoping meetings with stakeholders and will continue to engage with interested parties as the project develops. The results of this engagement, together with our own detailed research, will inform a Discussion Paper which will seek views on these three issues and may include preliminary proposals for reform. This public consultation will remain open for approximately three months. Once we have analysed responses to that paper, and carried out any further research required, we expect to be in a position to provide the Scottish Government with a final Report detailing our recommendations and providing a draft Bill for their consideration.

The scope of this project will be limited to the three issues outlined below, which were raised by those responding to the Eleventh Programme consultation. It will not therefore consider any other any other aspects of the law of limitation: 

Reasonably practicable test

The project will review the “reasonably practicable” test for constructive knowledge in section 17(2) of the 1973 Act. Section 17(2) provides that no personal injury action shall be brought unless commenced within a period of three years after (a) the date on which the injuries were sustained or (b) if later, the date on which the person became, or on which, in the opinion of the court, it would have been “reasonably practicable” for them in all the circumstances to become aware of certain facts.

Factors for the court to consider in exercising its discretion  

The project will assess whether there should be a list of factors for the court to consider in determining whether to exercise the discretion available to it under section 19A of the 1973 Act to override the three-year time limit for personal injury claims. Section 19A(1) of the 1973 Act allows a person to bring a personal injury action, outwith the three-year time limit if it seems to the court to be “equitable to do so”.

Time-bar for damages asymptomatic conditions which develop into symptomatic conditions

The project will consider whether an asymptomatic condition should no longer result in a time-bar preventing recovery of damages for a later-developing symptomatic condition. The Commission recommended removing the time-bar in relation asbestos-related conditions in the 2024 Report on Damages for Personal Injury (recommendation 12): “For the purposes of section 17 of the 1973 Act, failure on the part of an injured person to raise an action within the limitation period for (i) asymptomatic asbestos-related pleural plaques, or (ii) asymptomatic asbestos-related pleural thickening or asymptomatic asbestosis, would not preclude that injured person from subsequently raising an action for a symptomatic asbestos-related condition, including asbestos-related pleural thickening or asbestosis which has become, but was not previously, symptomatic.” We will consider whether this recommendation should be extended beyond asbestos-related conditions. 

We are always keen to engage with stakeholders who might be affected by the subject matter of this project, and who wish to contribute.  For further information, enquiries, or if you would like to be added to our mailing list to be informed of future publications and events related to this project, then please contact info@scotlawcom.gov.uk.

A project to consolidate the law relating to nature conservation.