‘A Practical Guide to the Law of Prescription in Scotland’ by Andrew Foyle
Published: 14th February 2020
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There have been a number of momentous changes to the law of prescription since the last major work in this area was published. The Supreme Court rulings in Morrison and Gordon’s Trustees, and the forthcoming changes in the Prescription (Scotland) Act 2018 have fundamentally altered an area of law which had been broadly unchanged for over 40 years.
This essential guide for practitioners discusses the law of prescription in Scotland. Topics covered include:
- Fundamental concepts of prescription and how it differs from limitation
- Prescriptive periods, suspensions and interruptions
- Imprescriptable rights
- Relevant claims and acknowledgements
- Fraud, error or legal disability
- Reparation for loss injury or damage
- Morrison -v- ICL Plastic and beyond
- The current position
- Contracts governed by foreign law
- Progress on reform of the law
- The Prescription (Scotland) Act 2018
ABOUT THE AUTHOR
Andrew Foyle is a solicitor advocate and the Head of Litigation for Scotland at Shoosmiths LLP, with over 17 year’s experience advising and representing financial institutions and insolvency practitioners at all levels of the Court system in Scotland. His experience in the financial sector involves both pursuing and defending claims, including secured and unsecured asset/credit recovery, regulatory issues, mis-selling claims, fraud, negligence and contractual claims. He has been involved in a number of recent high profile cases in the banking sphere and has spent periods on secondment with two major clearing banks.
Chapter One – Introduction – What Is Prescription?
What Is Prescription and Why Do We Have It?
How Does Prescription Differ From Limitation?
Fundamental Concepts of Prescription
Chapter Two – What Are the Prescriptive Periods?
The Ten-Year Period
The Two-Year Period
Proceeds of Crime / Criminal Activity
The 20-Year Period
The Five Year Period
Imprescriptable Rights and Obligations
Conclusion in Relation to the Prescriptive Periods
Chapter Three – When Does the Clock Start to Run?
Introducing Sections 6 and 7 and Schedule 2
A Series of Transactions
Contracts of Loan or Deposit
Contracts of Partnership or Agency
Payment by Instalments
Conclusions in Relation to the Start of the Prescriptive Period
Chapter Four – Interruption and Suspension of the Prescriptive Periods
Fraud, Error or Legal Disability
Chapter Five – Reparation for Loss, Injury or Damage – the Discoverability Test
Historical View of Discoverability Test
Morrison -v- ICL Plastic and Beyond
The Current Position
Chapter Six – Contracts Governed by Foreign Law
Chapter Seven – Law Reform – the Scottish Law Commission Report, and Progress Through Parliament
Rationale for Reform and Approach of the SLC
Scope of Five-Year and 20-Year Prescriptive Periods and Their Relationship With Statute
The Discoverability Test
Contracting Out of the Prescriptive Period
Burden of Proof
Fraud, Concealment and Error
Passage of the Bill
Chapter Eight – The Prescription (Scotland) Act 2018
Obligations to Pay Damages and Delictual Obligations
Prescriptive Periods in Other Statutes
Relevant Claims – Final Disposal
Burden of Proof
Transitional Arrangements and Coming Into Force