Ministers' Prescription Bill adopts SLC proposals
Scottish Law Commission proposals to reform the law of prescription are set to become law, after ministers introduced a Holyrood bill to give effect to the recommendations.
Last July the Commission published a report on issues causing difficulty in the law regarding calculation of the time periods within which a civil action must be brought before the claim is extinguished by lapse of time.
A particular issue has been the discoverability test, which applies where someone is not aware at the outset that they have suffered loss or damage, or if they have, that it was due to someone else's fault, or the identity of that person. A 2014 ruling by the UK Supreme Court decided that time could run against owners of a building damaged by an explosion on neighbouring premises even before they knew it had been caused by a breach of duty by another person.
The Commission recommended that the creditor in the obligation 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. Whether the creditor is aware that the act or omission that caused the loss, injury or damage is actionable in law should be irrelevant. The bill adopts that policy.
It also follows further proposals that:
the 20-year long stop prescriptive period should begin on the date of the act or omission giving rise to the claim, whether or not loss has yet followed;
it should not be possible to interrupt that period either by relevant claim or by relevant acknowledgment, though where a claim has been made during the prescriptive period, that period should be extended until such time as the claim is finally disposed of or the proceedings otherwise come to an end;
it should be competent to extend the short two-year and five-year prescriptive periods by agreement, but only for a limited period and subject to certain conditions, to enable parties to seek to negotiate an end to their dispute without the need to raise proceedings to preserve their rights;
other agreements to disapply or otherwise alter any of the prescriptive periods, should not be permitted;
it should be clarified that the burden of proof should be on the claimant to show that an obligation has not prescribed.
The bill does not deal with claims arising from personal injuries, to which separate rules apply.
Legal Affairs Minister Annabelle Ewing commented: "This new legislation, announced in our Programme for Government, supports our commitment to modernise civil law so that it is fit for purpose in the 21st century. The changes in this bill will increase clarity, certainty and fairness, and benefit persons or bodies in resolving disputes."