Current rules regarding the time within which a court action in Scotland must be raised are unclear and expose parties to unnecessary costs, the Law Society of Scotland said today.
In its response to a discussion paper published by the Scottish Law Commission on the law of prescription, the Society said it was "wholly supportive" of the review of this area of law.
"For many years in Scotland we consider that parties have been exposed to unnecessary legal costs due to the absence of standstill agreements and therefore the need for protective proceedings to be raised", the Society states.
This, and other issues, had been "exacerbated" by the UK Supreme Court decision in David T Morrison & Co Ltd v ICL Plastics Ltd in 2014, which had led to considerable uncertainty surrounding the date from which time started to run. "It seems to us that many actions are currently being raised to avoid a time-bar argument that could otherwise be dealt with out of court", the Society adds.
Regarding the knowledge needed in a claimant for time to start to run, the Society supports the Commission's option 3, under which the claimant would have to be aware of the loss, and of the act or omission which caused it, and of the identity of the person who caused it. "We consider that option 3 is the most logically consistent but also the most practical for those facing or advising in possible litigation", the response states.
Regarding a proposal that there should be a general rule that rights and obligations arising under statute should come under the five-year prescription period, with policy decisions being made on whether there should be specific exceptions allowing a case to be raised within a 20-year period, the Society comments that this might affect the obligation for a recipient of legal aid to make a payment to the Scottish Legal Aid Board from property recovered through successful legal proceedings, a statutory obligation to pay child maintenance, and council tax, which at present can be claimed at any time within a 20-year period.
