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Report on prescription 14/07/2017 The Scottish Law Commission has published a new Report making recommendations for the reform of negative prescription.

Report on prescription

The Scottish Law Commission has published a new Report making recommendations for the reform of negative prescription. The aim is to bring more certainty and fairness to the law in this area and to reduce the need to resort to court action (with its consequential costs).

The Report explains that prescription plays an essential part in balancing the interests of the parties to a court action on the one hand and serving the public interest on the other. Justice between the parties to a court action means that after a certain period it is fairer to deprive a pursuer of a claim than to allow it to be pursued against a defender. This is related to concerns about stale or missing evidence and the difficulties facing a court in trying to administer justice in those circumstances. But in addition to justice between the parties, there is a wider public interest in court proceedings being raised promptly if they are to be raised at all. Even if in an individual case prescription seems to involve hardship, as long as the law of prescription strikes a fair balance overall, it serves the wider interests of fairness, justice and certainty.

“The Report addresses issues in the law of negative prescription which cause difficulty in practice,” said David Johnston QC, the Scottish Law Commissioner with lead responsibility for this project.

“The immediate impetus for taking on this project was concern about the date when prescription starts to run in cases of latent damage, such as when a defect emerges in a building long after it was built. It would be unfair for prescription to start to run against a claim before the person affected even knew that there was a claim to be made. The difficult question is how much knowledge that person should have before time starts to run. In fixing the date on which prescription starts to run, the law needs to strike a fair balance. The new test we recommend in cases of this kind is intended to do that,” he explained.

“We have also taken the opportunity to recommend certain other changes to the law of prescription. One is to authorise the use of standstill agreements, which are not currently permissible in Scots law. They allow parties to a dispute to agree to a short extension of the prescriptive period in order to avoid the need for litigation.”

The Report makes clear that it is not concerned with the question of time-limits for claims relating to historical sexual abuse. Such time-limits are established by the law of limitation and have recently been the topic of a Bill passed by the Scottish Parliament.

The Report can be found here, and a summary is available here.


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