Prescription Bill Introduced

On 30 July 2014, the Scottish time bar applecart was not just upset but overturned by the Supreme Court. The apples in question represented around 30 years of what was thought to be settled case law on the interpretation of the Prescription and Limitation (Scotland) Act 1973. In the case of David T Morrison v ICL Plastics [2014] UKSC 48 the Supreme Court held on a three to two majority decision that the Scottish Courts had previously misinterpreted the statutory provisions for around three decades by putting a gloss on the Act. It had been understood that for the Scottish time bar (prescriptive) clock to run a party had to be aware that they had suffered loss, injury or damage and that the loss was actionable. The Supreme Court held that a party simply had to know they had suffered loss, injury or damage for the prescriptive clock to start running. There was no requirement that they also needed to be aware that the loss was actionable. The decision in ICL had far-reaching consequences as it meant that the time bar clock could start running much earlier than was previously thought, potentially leading to harsh consequences whereby a claim could expire before a party was able to identity of the person against whom they could make a claim.

In his dissenting judgement, Lord Hodge, who was one of the Scottish Judges on the bench, noted a Scottish Law Commission report, published in 1989, had made a number of recommendations. If those recommendations had been followed, then David T Morrison would have succeeded in its claim against ICL. Given that the decision in ICL changed the law as was previously understood he urged the Scottish Parliament to give fresh consideration to the Law Commission's recommendations.

It was not long before his call to action was taken up. The Scottish Law Commission was asked to consider the area anew in its next programme of reform. The Commission issued a Discussion Paper in February 2016, followed by its Report on Prescription in July 2017. The draft Bill was introduced on 8 February 2018. For the reform of such a fundamental area of Scots Law the process has been relatively swift.

New discoverability test

This new test has been devised to address the possible harsh effect on claimants following the decision in ICL. It does not however reinstate the law as it was previously understood in Scotland prior to ICL. Whether the claimant is aware that the act or omission that caused the loss, injury or damage is actionable...