The Scottish Government is seeking views on the commencement of The Prescription (Scotland) Act 2018, which makes changes to the rules of negative prescription.

The doctrine of prescription serves a vital function in the civil justice system. Negative prescription sets time-limits for when obligations (and rights), such as obligations under a contract, are extinguished.

The rules of negative prescription as they currently stand are, for the most part, to be found in the Prescription and Limitation (Scotland) Act 1973.

The Scottish Government is seeking views on the commencement of The Prescription (Scotland) Act 2018 which makes changes to the rules of negative prescription.

The 2018 Act takes forward the legislative recommendations contained in the Scottish Law Commission Report on Prescription of July 2017

Greater detail on the issues that informed the Act are set out in this Report and the Discussion Paper on Prescription of February 2016.

The changes made by the 2018 Act are designed to increase clarity, legal certainty and fairness as well as promote a more efficient use of resources, such as pursuers being less likely to have to raise court proceedings to preserve a right, and reduce costs for those involved in litigation and insurance. The Act makes these changes by amending the 1973 Act. Most notably, the 2018 Act makes changes in the following areas:

  • the scope of the 5 year negative prescription;
  • section 11(3) of the 1973 Act and the discoverability test;
  • the long-stop prescriptive periods under sections 7 and 8 of the 1973 Act; and,
  • contracting out and standstill agreements.

The new consultation is seeking the views of interested parties on the Scottish Government’s proposed commencement regulations.

You can respond using the Scottish Government’s consultation hub, Citizen Space, at: https://consult.gov.scot/private-law-unit/prescription-commencement-regulations/ 

Responses should be submitted by 14 October 2020.