FREE CHAPTER from ‘A Practical Guide to the Law of Prescription in Scotland’ by Andrew Foyle

CHAPTER ONE

INTRODUCTION – WHAT IS PRESCRIPTION?

What Is Prescription and Why Do We Have It?

The subject matter of this book is the law of prescription in Scotland. In particular it is concerned with “negative prescription”, i.e. the loss of rights or extinction of obligations over time. That is to be contrasted with “positive prescription” – the acquisition of rights after a period of time, particularly in relation to heritable property. An exposition of positive prescription, whilst interesting, is outwith the scope of this book.

The intention is to offer an understanding to the practitioner of the operation of prescription and matters to consider when a practitioner approaches a potential claim. But let us start from the beginning: what is prescription and how does it differ from other forms of time bar?

Most legal systems contain a mechanism whereby claims can no longer be pursued through the courts after the passage of a specified amount of time. In most jurisdictions those periods can vary from claim to claim.

In French law1, for example, most claims require to be brought within 5 years, although claims arising from rights over heritable property are generally subject to a 30-year time bar period. Our nearest neighbours, England & Wales also have variable time limits, with the general rule for most civil claims being 6 years, but some claims such as actions under deed or enforcement of mortgages being prestable for up to 12 years.2

Scotland is therefore no different from most of our European neighbours in having periods after which a claim may not be brought to court. Unlike some, however (and including our compatriots south of the border), when our time bar limit is reached, the claim is entirely extinguished. In England the period is a limitation period, meaning it can’t be pursued through the courts, but – for example in debt cases – a party is still (subject to regulatory constraints3) at liberty to demand payment or report the matter to a credit reference agency. We return to this difference below.

One fundamental question is why legal systems need a time bar rule. It is obvious that such a rule might operate unfavourably on a claimant who would have an otherwise valid claim against his or her debtor. By definition it allows for the possibility of a person subject to a perfectly legitimate claim “to get away with it” if they simply sit tight for the requisite amount of time.

This is all true, of course, but there is a counter argument that having a sword of Damocles hanging over one’s head for an indeterminate period of time is equally unfair. As it was put by the Scottish Law Commission in their 1970 Report:

The law should not give countenance to latent and antiquated claims which may affect even the successors of the person responsible and, if revived after many years, may disturb the basis upon which they have arranged their lives.4

So, what a legal system is trying to achieve in setting its time-bar periods is a balance between a reasonable amount of time to get one’s case in order and pursue a claim, without the need for a potential defender to put their life on hold for an unreasonable interval whilst a pursuer gets organised.

The law in this area in Scotland goes back a very long way. Prior to examination by the Scottish Law Commission in 1970, the law of prescription remained governed by the Prescription Act 1474 and the Prescription Act 1617. The law had been amended and interpreted in numerous ways over the years but much of it was still written in old Scots.

Nevertheless, the Scottish Law Commission’s primary intention in 1970 was not to re-write the law of prescription – it was not seen as being broken – and nor was it intended that what became the Prescription & Limitation (Scotland) Act 1973 should be a radical departure from the pre-existing law. Rather the aim was that the whole of the law and practice should be brought within one Act and amended only insofar as common sense and clarity required. This explains why we have some particularly archaic wording and concepts in the Act, many of which are rarely, if ever, relied upon.

The outcome of the 1970 report was the Prescription & Limitation (Scotland) Act 1973 (hereinafter “the 1973 Act”). The 1973 Act, whilst not perfect, was undoubtedly an improvement on the ancient and obscure legislation which had gone before.

In 1983 the Commission looked again at this area of law, this time with a focus on personal injuries and aspects of private international law which were beginning to impinge upon Scotland.

As the 1983 Report makes clear, the law was not in disarray. The Commission point out that:

Commentators on the consultative memorandum for the most part expressed satisfaction with the law, though not with its presentation. There is now wide acceptance of a short limitation period, running from the date of injury, but sufficiently flexible to take account of the claimant’s lack of knowledge of such matters as the existence and cause of his injury. We have therefore seen our main task as one of simplifying the law and eradicating a number of obvious defects, and this is something which we believe can be readily achieved.”5

The 1983 Report therefore recommended only minor changes, most notably imposing the short negative prescription to personal injury cases, where previously the 20-year period had applied. It also proposed to introduce a limitation period of three years for certain types of claim.


How Does Prescription Differ From Limitation?

As we have seen above, Scots law now has both prescriptive periods and, in relation to specific types of claim, limitation periods. Other jurisdictions only have limitation periods.

It is beyond the scope of this book to examine limitation in Scotland, but it is important to understand the difference between the two, particularly when considering the consequences of a claim having prescribed.

The difference is relatively straightforward. A limitation period imposes a time limit after which a claim may not be litigated – that is 3 years for most personal injury claims not resulting in death. The claim itself, however, still exists. In terms of Section 19A of the 1973 Act, the court has the power (although it is used sparingly) to waive the three-year period and to allow a claim to proceed.

Limitation can be contrasted with prescription, therefore. Prescription is where the claim itself is wholly extinguished and cannot be pursued by any means whatsoever – it simply no longer exists. If a claim has prescribed, the court has no power to waive the period. The consequences flowing from the existence of a claim, for example reports to credit reference agencies in the case of consumer debt, must likewise be considered to have fallen.

If a claim is to survive the prescriptive period it must fall within an exception to the general rule, whether through the period having been interrupted or suspended. This is discussed in more detail below.


Fundamental Concepts of Prescription

As a legal concept, prescription appears to be straightforward in principle: after a period of time a claim no longer exists. However there are a number of matters to be aware of when considering whether a claim has prescribed and numerous grey areas where the law is less clear than one would expect given its lengthy pedigree.

The period of time after which a claim prescribes is generally referred to as the “prescriptive period” and that terminology will be used throughout the rest of this work. The general principle is that a claim or obligation will expire following upon a period of 20 years without the obligation being insisted upon, unless it is either (a) subject to a different prescriptive period, usually of five years (although see below); (b) listed in the Act as being imprescriptible; or (c) subject to an interruption.

The length of the prescriptive period depends upon the nature of the obligation. For most purposes that period will be either five years or 20 years, however it is important to note the different periods contained in the 1973 Act for specific types of claim.6 We return to these, briefly, below.

It is also important to note that (for the time being) not all of the answers will be found in the four corners of the 1973 Act. There are a number of claims and obligations where other statutes set out different prescriptive or limitation periods which override the 1973 Act. Examples include claims for loss of goods at sea, where the period is one year,7 or claims for delivery up of goods infringing copyright under the Copyright Designs & Patents Act 1988, which has a six year limitation period.8 A number of time limits are also set in planning legislation and in claims before employment tribunals. A detailed examination of these areas is beyond the scope of this book, but a prudent legal practitioner should be aware of any limits set out in governing legislation at the outset of considering any claim that they may be taking on behalf of a client.

Turning back to the 1973 Act, it is submitted that the key to understanding the law of prescription comes from understanding:

  • which prescriptive period applies to which obligations in terms of the Act;

  • when the prescriptive period begins to run in each case; and

  • what events can interrupt the prescriptive period, either starting it anew or suspending it temporarily.

The 1973 Act deals with all of these rules within a few short sections. We shall now examine those provisions in more detail.

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1Loi No. 2208-561 of 17 June 2008

2See the Limitation Act 1980, part I

3See, e.g., The FCA’s Handbook, CONC 7.15

4Scot Law Com No. 15, Reform of the Law Relating to Prescription and Limitation of Actions, at Para 34(2)

5Scot Law Com No. 74, Report on Prescription and the Limitation of Actions, etc., at para 1.4

6i.e. the two-year period for claims for contributions between wrongdoers (Section 8A) and the ten-year period for damages arising from product liability claims (Section 22A)

7Carriage of Goods by Sea Act 1971

8Sections 113 and 203