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Prescription in Scotland

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Prescription in Scotland

Postby stu1985 » Fri Aug 01, 2014 8:38 pm

I'm not sure that there are many Scottish visitors here but I thought I would point out a significant Supreme Court decision which came out this week in relation to prescription in Scotland - Morrison v ICL Plastics (http://supremecourt.uk/decided-cases/do ... dgment.pdf). It is significant in that it alters the position in relation to prescription which the Scottish courts had adopted until now.

The law is contained in the Prescription and Limitation (Scotland) Act 1973.

The case arose out of an explosion at a plastics factory in Glasgow back in May 2004. The pursuers (whose property was damaged) raised their action in August 2009 (3 months after the obligation to pay reparation had expired according to the 1973 Act). The defenders agreed that they were liable but that their obligation to pay damages had expired.

Under the 1973 Act, the obligation to pay damages is enforceable on the day the damage was suffered (in this case, May 2004). However, there is a carve out. If the person to whom damages would be payable is not aware that damage has been suffered, the obligation isn't enforceable until the date on which he does become aware of the fact that he has suffered loss.

The Court of Session held that the date on which the prescriptive period started running was in May 2004. It was obvious that damage had been suffered by the pursuers (they relied on the principle of res ipsa loquitur - the thing speaks for itself). The Inner House disagreed.

The Supreme Court reversed the Inner House and held that the prescriptive period runs from the date on which the damage was suffered, not the date on which the pursuers became aware that there was a breach of duty which was owed to them (which, in this case, would have meant that the prescriptive period started to run later than May 2004).

It's an interesting case and one which could have wide consequences. If loss is suffered on a particular date, the prescriptive period starts from them. It doesn't matter whether the pursuer only becomes aware of this 4 years, 364 days later, he only has one day to lodge his Initial Writ. So the question now for pursuers is: "When was the damage suffered?" not "When did you become aware that you had incurred this damage?".
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Re: Prescription in Scotland

Postby atticus » Fri Aug 01, 2014 9:22 pm

Is prescription Scottish for limitation?
atticus - a very stable genius
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Re: Prescription in Scotland

Postby stu1985 » Fri Aug 01, 2014 9:56 pm

Yes, you're right. The terms are interchangeable.
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