Prescription (Scotland) Act 2018 commencement regulations: consultation

1. Introduction

1.1 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. The rules of negative prescription^[1] as they currently stand are, for the most part, to be found in the Prescription and Limitation (Scotland) Act 1973 (“the 1973 Act”).

1.2 The Prescription (Scotland) Act 2018 (“the 2018 Act”), when commenced, will make a number of changes to the rules of negative prescription, addressing certain issues which have caused or may cause difficulty in practice.

1.3 The 2018 Act takes forward the legislative recommendations contained in the Scottish Law Commission (“the Commission”) Report on Prescription of July 2017 (“the Report”).^[2] Greater detail as to the legal and practical issues which informed the Act are set out in the Report and also in the Discussion Paper on Prescription of February 2016.^[3]

1.4 Scots law, like many legal systems, recognises that it is fair, in certain circumstances, for legal rights to expire with the passage of time. Prescription is justified by a number of policy considerations. There are clear benefits to bringing actions early, in particular, delay may adversely affect the quality of justice. Evidence may deteriorate or be lost, including witnesses dying or becoming incapacitated. It may be unfair for a debtor to have an action raised against them long after the circumstances that gave rise to it have passed. It is reasonable that debtors should be able to organise their affairs and resources on the basis that, after a definite period of time, their obligation is extinguished.^[4] The public interest also lies in disputes being resolved as quickly as possible. Considerations of legal certainty justify, as a general rule, a cut-off beyond which obligations are extinguished and therefore claims may not be litigated. Prescription is an essential part of balancing individual interests on one hand and serving the wider public interest on the other. This means that there will be individual cases where prescription appears to operate harshly to extinguish a creditor’s right but, in the wider interests of fairness, justice and certainty, prescription needs to strike a fair balance overall.

1.5 The changes made by the 2018 Act are designed to increase clarity, legal certainty and fairness as well as promote a more efficient use of resources, such as pursuers being less likely to have to raise court proceedings to preserve a right, and reduce costs for those involved in litigation and insurance. The Act makes these changes by amending the 1973 Act. Most notably, the 2018 Act makes changes in the following areas:

• the scope of the 5 year negative prescription;
• section 11(3) of the 1973 Act and the discoverability test;
• the long-stop prescriptive periods under sections 7 and 8 of the 1973 Act; and,
• contracting out and standstill agreements.^[5]

1.6 Very little was said about commencement of the 2018 Act during parliamentary passage, except that sufficient time be given to creditors/debtors to arrange their affairs and that any such provisions should avoid the potential for claims which have already prescribed under the current law from being revived as a result of any provisions in the 2018 Act.^[6]

1.7 The purpose of this consultation is to seek the views of interested parties on the Scottish Government’s proposed commencement regulations.

Responding to this Consultation

1.8 We are inviting responses to this consultation by 14 October 2020.

1.9 Please respond to this consultation using the Scottish Government’s consultation hub, Citizen Space (http://consult.gov.scot). Access and respond to this consultation online at https://consult.gov.scot/private-law-unit/prescription-commencement-regulations/. You can save and return to your responses while the consultation is still open. Please ensure that consultation responses are submitted before the closing date of 14 October 2020.

1.10 If you are unable to respond using our consultation hub, please complete the Respondent Information Form to:

Private Law Unit, Civil Law and Legal System
Scottish Government
GW.15
St Andrew’s House
Edinburgh, EH1 3DG

Handling your response

1.11 If you respond using the consultation hub, you will be directed to the About You page before submitting your response. Please indicate how you wish your response to be handled and, in particular, whether you are content for your response to published. If you ask for your response not to be published, we will regard it as confidential, and we will treat it accordingly.

1.12 All respondents should be aware that the Scottish Government is subject to the provisions of the Freedom of Information (Scotland) Act 2002 and would therefore have to consider any request made to it under the Act for information relating to responses made to this consultation exercise.

1.13 If you are unable to respond via Citizen Space, please complete and return the Respondent Information Form included in this document.

1.14 To find out how we handle your personal data, please see our privacy policy: https://gov.scot/privacy/

Next steps in the process

1.15 Where respondents have given permission for their response to be made public, and after we have checked that they contain no potentially defamatory material, responses will be made available to the public at http://consult.gov.scot. If you use the consultation hub to respond, you will receive a copy of your response via email.

1.16 Following the closing date, all responses will be analysed and considered along with any other available evidence to help us. Responses will be published where we have been given permission to do so. An analysis report will also be made available.

Comments and complaints

1.17 If you have any comments about how this consultation exercise has been conducted, please send them to the contact address above or at michael.paparakis@gov.scot.

Scottish Government consultation process

1.18 Consultation is an essential part of the policymaking process. It gives us the opportunity to consider your opinion and expertise on a proposed area of work.

1.19 You can find all our consultations online: http://consult.gov.scot. Each consultation details the issues under consideration, as well as a way for you to give us your views, either online, by email or by post.

1.20 Responses will be analysed and used as part of the decision making process, along with a range of other available information and evidence. We will publish a report of this analysis for every consultation. Depending on the nature of the consultation exercise the responses received may:

• indicate the need for policy development or review
• inform the development of a particular policy
• help decisions to be made between alternative policy proposals
• be used to finalise legislation before it is implemented.

1.21 While details of particular circumstances described in a response to a consultation exercise may usefully inform the policy process, consultation exercises cannot address individual concerns and comments, which should be directed to the relevant public body.