Gwenan White | Trainee Solicitor

What is Prescription and how does it affect my claim?

Scots law contains a mechanism whereby claim can no longer be pursued through the courts after the passage of a specific amount of time. Once the time limit is reached the claim is entirely extinguished. Clearly the law of prescription can act against a person who otherwise would have a valid claim but it does provide certainty to claims and prevent claims that are antiquated and can even affect the successors of the responsible person.

Prescription can be relatively straightforward but has become more complex as it has been interpreted by different courts. The general principle is that a claim or obligation will expire following upon a period of either 5 years or 20 years without the obligation being insisted upon in the courts. The length of time will depend upon the nature of the obligation. Some claims, primarily for personal injury, are subject to a limitation of 3 years and claims for compensation for damage resulting from Scottish Water exercising their powers would not be maintainable after 2 years.

It is therefore important to establish which prescriptive period applies, knowing when the prescriptive period begins to run from and knowing what events can interrupt the period.

The starting point for identifying the correct prescriptive period is the Prescription & Limitations Act 1973. Section 6 of that the 1973 Act provides definitions and the obligations which are prescriptible and subject to the 5 year time limit. Some rights do not prescribe and are listed under Schedule 3 of the 1973 Act. Any obligations which are not listed by the act as prescriptible or imprescriptible are subject to a 20 years period by virtue of section 7 of the 1973 Act.

You will need to identify when the prescriptive period begins is the next important stage and if anything has caused the interruption of the period.

The two main ways in which a prescriptive period can be interrupted are if a relevant claim is made or a relevant acknowledgment of the obligation has been made by the debtor, both requiring to be made during the prescriptive period.

The Scottish Law Commission has made recommendations for reforms to the law of prescription and the Scottish Government have indicated that their intention is to implement the recommendations of the Scottish Law Commission. At present the law of prescription in governed primarily but the 1973 Act but that is set to change.

It is therefore important in any claim that you seek legal advice as soon as possible if you believe you have a legal claim as you will not be allowed to delay indefinitely.

Gwenan White

Gwenan White

Employment Law Team

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