Prescription has an important role to play in any legal system; it creates an element of certainty for parties that they will not face action after a certain time limit has passed. Prescription gives closure to unresolved legal issues, but time-limits must be sufficient to give parties the choice of taking legal action, and strike a fair balance between competing interests. As a result of the importance of prescription, and some recent prescription cases, The Scottish Law Commission have published a discussion paper on the issue to identify areas in need of reform. This post looks at the history of prescription and the journey through time to strike a balance in the law.
Development of the Law of Prescription in Scotland
Before any legislative measures to implement prescription, the common law dictated that personal injuries and other civil actions were subject to the long negative prescription period of 20 years, with some exceptions. Most notably, the exception of only a six-month prescription period for bringing a claim against a public authority. There were two main areas of contention with the law of prescription at this time: that the period was too long to produce reliable witnesses, particularly in employment and road traffic cases, and that the six-month period was far too short to be fair to those who had been injured.
Following the Second World War, the law of prescription was examined by two committees, The Monckton Committee of Alternative Remedies which looked at prescription regarding claims against employers, and the Tucker Committee on the Limitation of Actions. The Monckton Committee was in favour of a three-year limitation period. However, a two-year period with a discretionary power to extend this up to six-years given to the courts, was preferred by the Tucker Committee, which also wished to remove the special protection for public authorities.
The Monckton Committee suggestion as preferred and, as a result, the Law Reform (Limitation of Actions etc.) Act 1954 was born, repealing the Public Authorities Protection Act 1893. The act applied to England and Wales as well as Scotland, and introduced a general period of prescription of three years. However, shortly after the Act was introduced, a number of issues arose. In Watson v Fram Reinforced Concrete Co (Scotland) Ltd 1960 SC (HL) the issue of when the period of prescription ran from became of issue, as the legislation implied that prescription would run from the date of the negligent action, not the date when the injury deriving from the negligent action was discovered creating difficulties in actions of asbestosis, for example. The House of Lords determined that late discovery of injury was to have no impact on the prescriptive period.
This issue was later examined by another committee, chaired by Edmund Davies. In the report, the committee recommended that the pursuer should no be time-barred where they commence proceedings within twelve months of discovering their injury. Section 8 of the Limitation Act 1963 implemented this proposal, but the 1963 Act was also heavily criticized. Firstly on the grounds that the 12-month extension was too short, and also that the act did not account for circumstances where in a fatal accident, the injured party remained unaware of what caused their injury. As a result, the committee recommended having the three-year period of prescription run from the date of knowledge, and in the event of a fatality, three years from death.
Why is it time for a review of prescription and limitation?
The law has remained largely unchanged in 40 years, but a number of recent cases have prompted the commission to revisit the topic.
The most notable case was the Supreme Court case of David T Morrison & Co Ltd v ICL Plastics Ltd in 2014, where Mr. Morrison was unable to seek civil compensation following the Maryhill plastic factory explosion of 2004, as his business was waiting for the outcome of the public inquiry into the disaster before making their claim.
The action was found to be time-barred, and it is estimated that the business lost out on £1.5m as a result. The Supreme Court in their judgment determined that the party merely had to be aware of the loss for the period of prescription to begin. It will be interesting to find out whether this interpretation of the law in considered to be fair and what proposals for reform may arise from the discussion paper.
The Discussion Paper is available at http://www.scotlawcom.gov.uk/publications/discussion-papers-and-consultativememoranda/2010-present/ where there is also a downloadable electronic response form. 28. You can also write to The Scottish Law Commission, 140 Causewayside, Edinburgh EH9 1PR. Or e-mail: firstname.lastname@example.org.