PE1860/A - New legislation for Prescription and Limitation Act
Thank you for your email of 12 May 2021 regarding the above petition. The doctrine of prescription serves a vital function in the civil justice system. Negative prescription sets time-limits for when obligations (and rights), such as obligations under a contract, are extinguished.
Limitation also sets time limits but is different from prescription in that it does not extinguish rights, rather it sets a procedural barrier for raising proceedings in court after a certain time. For example, a seller’s right to be paid the price of goods is extinguished by prescription: if no claim is made for the price within the prescriptive period, the right to payment ceases to exist. Claims for damages for personal injury, for example, are subject to limitation. If no claim is made within the limitation period, the claim still exists, but it will not be possible to proceed unless a court decides it is equitable to allow the case to do so. The court’s discretion must be exercised having regard to the interests and conduct of the parties and their advisers as well as the nature, circumstances and prospects of success in pursuit of the claim.
These two legal doctrines incentivise people to enforce their legal rights through the courts promptly, without delay. Delay may cause deterioration in the quality of evidence available in proceedings; essential documentary evidence may have been lost or destroyed; witnesses may have died, be untraceable or, even if they are found and able to give evidence, memories may have faded. Without prescription or limitation, these circumstances could cause insurmountable difficulties for the defender in a court action.
In addition, the two doctrines provide legal certainty – after all, there should be a point in time after which a person should be able to plan their affairs and resources knowing they will likely not be pursued over a particular matter.
In the case of negative prescription, to allow a retrospective action would mean reviving an extinguished legal right or obligation, thereby undermining any legal certainty and running up against the difficulties of evidence outlined above. It may also raise issues with Article 1 of the First Protocol of the European Convention on Human Rights – the right to peaceful enjoyment of one’s own property. In the case of limitation, as noted above, section 19A of the Prescription and Limitation (Scotland) Act 1973 already allows the courts to override the principal limitation time limits where they are persuaded that it is equitable to do so.
Whilst the Scottish Government cannot comment on the specifics of any given case, where a solicitor has failed to perform their responsibilities to the relevant standard and caused a person loss, then that person might be able to raise a claim against the solicitor at fault for professional negligence or, where appropriate, make a complaint to the Scottish Legal Complaints Commission (“the SLCC”). This failure might include, for example, failure to serve a writ timeously. It is possible that the loss suffered (that is, the benefit which the person has foregone by not being able to enforce their rights before prescription or limitation affected the right or claim) could be recovered in whole, or in part, in an action for professional negligence raised against the solicitor at fault, or (if within the limits of its powers) through the SLCC awarding compensation.
The Scottish Government recognises that in individual cases the law of negative prescription and limitation pursuers can be deprived of remedies they would otherwise be able to access, but encouraging prompt litigation (where litigation is appropriate) and legal certainty are of general benefit to the legal system. The Scottish Law Commission, an independent body advising the Scottish Government on law reform, recently looked at the law of negative prescription in Scotland, making a number of recommendations that were taken forward in the Prescription and Limitation (Scotland) Act 2018. In its 2016 Discussion Paper on Prescription, the Commission recognised the balance that the law must seek between the interests of pursuers and defenders on this issue:
“Justice between the parties to a litigation means that after a certain lapse of time it is actually fairer to deprive a pursuer of a claim than to allow it to trouble a defender. That is connected with concerns about stale or missing evidence and the difficulties facing a court in trying to administer justice in those circumstances. But there is more to prescription than justice between the parties to a litigation. There is a wider public interest in having litigation initiated promptly if it is to be initiated at all. The reason is that that is conducive to legal certainty.”
In another report, its 2006 Discussion Paper on Personal Injury Actions: Limitation and Prescribed Claims, the Commission describe why this legal certainty is needed:
“It is appropriate that there should come a point at which businesses, public authorities and insurance companies should be able, in reasonable safety, to "close their files" and dispose of records. People have an important interest in being able, after the lapse of a particular period of time, to arrange their affairs with some confidence that claims can no longer be made against them.”
It is the view of the Scottish Government that the current balance is appropriate between individual interests and the more general interests of legal certainty. To allow the retrospective raising of claims would run counter to the need for our laws on limitation and prescription, reducing legal certainty and potentially leading to decades old claims being pursued. Not only would it undermine the public interest in prompt litigation but is unnecessary where, in relevant circumstances, the law already provides alternative legal remedies for harsh cases.