30th May 2022

Prescription Law in Scotland: Major changes ahead on 1 June 2022

On 1 June 2022, the Scottish legal landscape of prescription law will face one of the biggest changes since the introduction of the Prescription and Limitation (Scotland) Act 1973 (the “1973 Act”). The Prescription (Scotland) Act 2018 (Commencement, Saving and Transitional Provisions) Regulations 2022 come into force providing effective dates for the Prescription (Scotland) Act 2018 (the “Act”).

What is prescription?

In Scotland, prescription is the doctrine that claims expire (or in some cases are created) after a specific period of time. The time before a prescriptive right expires or is created varies depending upon the type of case. For example, for a personal injury claim, the injured party would usually have a period of 3 years to raise the claim. For other claims, such as property damage, a claim must be brought within 5 years of loss or damage. There are, of course, more specific rules regarding the types of cases and the knowledge of parties.

What are the key changes for the commencement of the prescriptive period?

As of 1 June 2022, section 5 of the Act comes in force. Section 5 of the 2018 Act amends section 11 of the 1973 Act, dealing with when the prescriptive period starts. Section 5 of the 2018 Act states that the prescriptive period does not start until certain facts have been established. The said facts are:

“(a)that loss, injury or damage has occurred,

(b)that the loss, injury or damage was caused by a person’s act or omission, and

(c)the identity of that person”.

This is a significant change to the application of prescription law. The 1973 Act stated that the start of the ticking of the prescriptive clock could be postponed in some circumstances, depending on the knowledge of the pursuer i.e. the individual suffering loss. However, the well-known case of Morrison v ICL Plastics previously raised questions about how this section was to be applied in practice. The decision confirmed that the prescriptive clock should start ticking when the person suffering the loss was aware or should have been aware with reasonable diligence, of the loss. Given the Morrison decision, the 2018 Act is a timely clarification on the legislation.

What are the key changes for extending the prescriptive period?

The second major change coming into force on 1 June 2022, is section 13 of the 2018 Act. Section 13 allows parties to agree to extend the prescriptive period when rights expire. This is often known as a standstill agreement. However, parties are not given free rein to reach alternative agreements. The standstill agreement can only extend prescription for a period of one year and can only be done after the commencement of the prescriptive period but before the initial expiry date. For this reason, it is really important to keep prescriptive dates at the front of your mind.

What does this mean for the future?

The subject of prescription is often confusing and one that practitioners have to grapple with on a daily basis. The changes have a positive impact on pursuers, and may in some circumstances mean that a case that was previously not able to be pursued has a second lease of life.

The remaining sections of the Act do not come into force until 2025, and therefore the legal landscape of prescription in Scotland is not yet finished with changes.

Given the nature of prescription, we would strongly recommend you seek legal advice on specific cases.

For information on any of the above, please speak to a member of the Blackadders Dispute Resolution Team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.

Susan Currie, Senior Solicitor
Dispute Resolution
Blackadders LLP
@DisputeLawSusan

www.blackadders.co.uk

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