Scottish Law Commission examines law of prescription

The Scottish Law Commission is beginning a new project, led by David Johnston QC, looking at various aspects of the law of prescription.

The first aspect which it is examining is the starting date for obligations to pay damages under the five-year prescription (sections 6 and 11(3) of the Prescription and Limitation (Scotland) Act 1973).

Until the decision of the Supreme Court in Morrison v ICL Plastics [2014] UKSC 48, the Scottish courts had followed a consistent line in interpreting section 11(3) as giving creditors five years to sue from the date when they first knew (or should have known) of both the loss and that it was caused by negligence.

The law is now different; one of the justices in Morrison expressed the view that the change in the law as previously understood is an issue worthy of consideration by the Scottish Law Commission.

This is an important topic, particularly in relation to the key area of latent damage to buildings. The Commission would welcome comments from anyone with an interest in this area.

Although there will be a formal consultation in due course, initial comments to assist the Commission in the formulation of its proposals are being sought. The Commission is also considering holding round-table discussions of this issue in late spring or early summer and would be grateful for an early indication of interest, however tentative, in this idea.

Further information on the project is available at www.scotlawcom.gov.uk

For comments or expressions of interest in round-table discussions, contact gillian.swanson@scotlawcom.gsi.gov.uk