The Scottish Law Commission is to review time bars on civil actions in Scottish courts. This is the first review of this area in decades. It comes on the back of host of cases which saw litigants fall foul of the limits. David Johnston QC, leading the project, said: “The law of prescription plays an important role in balancing the interests of the parties to litigation. As part of our current programme of reform we were encouraged to review the main areas in which change might be considered. This consultation paper is the result.”
One of the most topical issues to be reviewed, especially following the decision of the Supreme Court in the case of David T Morrison & Co Ltd v ICL Plastics Ltd ( UKSC 48, is that of prescription in respect of claims relating to latent damage. Until the Morrison judgement the courts in Scotland had been consistent in interpreting section 11(3) of the Prescription and Limitation (Scotland) Act 1973 as giving creditors five years to sue from the date when they first knew (or should have known) of the loss and that it was caused by negligence. The law is now different of course and the discussion paper asks whether the law after Morrison is fair, and explores other options for the discoverability test of section 11 (3).
It has been suggested post Morrison that the starting of the time period when the creditor is not aware of the facts of the loss, the act or omission that caused it or the person who caused it maybe be too onerous on the pursuer and in turn more favourable to the defenders. Certainly this seems to be the preliminary view of the Scottish Law Commission and the starting point from which they intend to review the test as a whole. Other topics to be examined in the paper include the scope of the five-year prescription period; the structure of the 20-year prescription; whether it should be possible to contract out from the statutory prescriptive periods; and the burden of proof. The consultation exercise will run until 23rd May 2016.
It should be noted that the project is only concerned with prescription, which principally relates to property damage, and not with limitation of actions. Since in Scots law limitation applies principally to actions for personal injuries, it follows that the scope of the current review will not extend to actions for personal injuries or claims relating to historical sexual abuse.