Prescription (Scotland) Act 2018 commencement regulations: consultation

Footnotes

1 For ease, when using the term “prescription” in the remainder of the consultation we will be referring to “negative prescription”.

2 Available at https://www.scotlawcom.gov.uk/files/3414/9978/5138/Report_on_Prescription_Report_No_247.pdf.

3 Available at https://www.scotlawcom.gov.uk/files/3514/5614/9429/Discussion_Paper_on_Prescription_DP_No_160.pdf

4 In relation to a debt, it is usual to refer to a creditor and debtor. For other rights and obligations to which prescription applies, such as in relation to personal injury, it is more often appropriate to refer to a pursuer and defender. To assist the reader, this consultation refers to debtors and creditors (unless the context otherwise requires), which are considered to be most easily understood.

5 This list is non-exhaustive.

6 In its Report the Commission briefly discuss potential arrangements for bringing into effect its recommendations to the law of prescription. See paragraphs 1.30 to 1.35.

7 See paragraph 1.30 of the Report.

8 See sections 1(2), 2(1), 2(2) and 3(2)(b) of the 2018 Act for instance.

9 In accordance with paragraph 1(d) of schedule 1 of the 1973 Act, as amended by section 1(2) of the 2018 Act.

10 Available at http://www.legislation.gov.uk/ukpga/1978/30/contents.

11 Wilson and others v. Secretary of State for Trade and Industry, [2003] UKHL 40, per Lord Roger at para 198.

12 Whether or not the changes to the law made by the 2018 Act apply to pending proceedings is thought to be of little practical significance. This is because the changes the 2018 Act makes, taken together with the saving and transitional provision proposed, are not thought to cause an obligation to prescribe while proceedings relating to that obligation remain ongoing. Both the 1973 Act as un-amended and as amended by the 2018 Act appear to produce the same effect in this respect.

13 Section 14(1)(c) of the 1973 Act provides that prescriptive periods run from the beginning of the day and, being calculated in full days, thus expire at the end of the day. Accordingly the transitional provision proposes to extend the prescriptive period to the end of the day before the day the when 2018 Act comes into force”, which is to say, the moment the 2018 Act comes into force.