Prescription And Limitation ' A General Comparison North And South Of The Border

• Published date: 21 April 2023
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution, Personal Injury, Professional Negligence
• Law Firm: Shepherd and Wedderburn LLP
• Author: Mr Iain Drummond and Ryan McCuaig

In an updated article which compares prescription and limitation in Scotland and England and Wales, Iain Drummond, Partner, and Ryan McCuaig, Solicitor, in our Construction, Engineering and Infrastructure disputes team examine the general position in the relevant jurisdictions.

Prescription and limitation apply to all claims in delict/tort and contract. Different rules apply north and south of the border, but the purpose of both is to ensure that a wrongdoer cannot be sued for a historic delict/tort or contractual claim, as a matter of public policy. Time-bar will operate against these 'stale' claims, in order to avoid the difficulties of proof created by delays and to prevent businesses and individuals from living with a threat of litigation hanging over them indefinitely.

This area has been subject to significant controversy in Scotland in recent times, resulting in new legislation to alter the position. This article looks at both jurisdictions and provides some tips on the main periods that generally apply and how and when to stop or delay 'the clock' running for time bar, especially in claims for latent defects.

This article does not deal with all prescription or limitation periods or all features of those periods. Whether the periods apply and if so how, is usually highly fact-sensitive. Also, there is a 'cliff-edge' aspect to prescription and limitation, in the sense that when the periods expire, the rights are lost; there is no tapering. For these reasons, it is important to obtain timely and comprehensive advice from a specialist.

Scotland: legislation

Historically, Prescription and Limitation was regulated by the Prescription and Limitation (Scotland) Act 1973, as supplemented by case law.

5-year prescription period

Under section 6 of the 1973 Act an obligation is extinguished after five years:

(a) without any relevant claim having been made in relation to the obligation; and

(b) without the subsistence of the obligation having been relevantly acknowledged.

In general terms, this applies to:

• obligations to pay a sum of money and other contractual obligations;
• obligations to pay compensation;
• breach of contract and negligence claims.

It was the 5-year prescription period which gave rise to controversy following the case of David T Morrison & Co Ltd v ICL Plastics Ltd & Others [2014] UKSC 19 and other cases that followed it, such as Midlothian Council v Raeburn Drilling 2019 SLT 1327. This resulted in the 1973 Act being amended by the Prescription and Limitation (Scotland) Act 2018, which is discussed in more detail below.

20-year prescription period (longstop)

A 20-year...