Faculty finds flaws in Commission's Prescription Bill draft
Potential weaknesses in the draft Prescription Bill issued for consultation by the Scottish Law Commission have been identified by the Faculty of Advocates.
The bill will form part of the Commission’s report on aspects of the law of prescription, which is in the final stages of preparation. The exercise was prompted among other things by a UK Supreme Court decision that time could run before a claimant was aware that their loss was caused by another person's breach of duty of care.
In its response, published today, Faculty states that many of the clauses appear to achieve their aims satisfactorily. However, it believes there are areas where the effect is not what was intended, or where a lack of clarity exists.
A particular concern exists over a proposed new s 11(3B), contained in s 5 of the bill, which proposes that “a separate prescriptive period is capable of applying in relation to each debtor”. Noting that this was not discussed in the earlier consultation paper, Faculty responds that it appears "to permit a pursuer potentially to defer the prescriptive period against a potential defender whose identity they are aware of by choosing not to ‘enforce the obligation’ against that party, while pursuing an action against a defender in relation to loss which both have caused".
It calls for an explicit qualification that "no separate prescriptive period will run against a person of whose identity the creditor was, actually or constructively, aware" at the same time as their awareness of the identity of the person they choose to sue. This would strike a balance between preserving the rights of pursuers where a potential defender cannot be identified, and providing potential defenders with some certainty as to when potential liabilities should prescribe.
Other comments question the intention of the bill in relation to certain obligations in relation to land and on owners of tenements; when a "relevant claim" made in a liquidation or bankruptcy actually comes to an end; and whether a provision on negative prescription of real rights may have the opposite intention to what was intended.