Faculty of Advocates/Ampersand Advocates

This Practice Note explains the concept of limitation in Scots law. It covers the difference between limitation and prescription in Scotland and how to plead limitation. It summarises the law of limitation in relation to specific types of actions including personal injury claims, defamation actions and actionable types of malicious publication, harassment actions and recovery of property (proceeds of crime) and actions in respect of accidents caused by automated vehicles, construction products and product liability defects. It provides guidance on the interruption of certain limitation periods under Scots law and judicial discretion to override certain limitation periods.

This Practice Note explains the concept of negative prescription and positive prescription under Scots law, focusing on the five year negative prescription (or short negative prescription) and 20-year negative prescription (or long negative prescription) periods as provided for in the Prescription and Limitation (Scotland) Act 1973 and as amended by the Prescription (Scotland) Act 2018. It also considers some other negative prescriptive periods (such as for joint wrongdoers in contract and delict and in consumer protection). It covers imprescriptible obligations and offers guidance on key prescription concepts including calculation of the prescriptive period, the appropriate date in short negative prescription, suspension of the short negative prescriptive period due to fraud, error and legal disability, interrupting the prescriptive period with a relevant claim or relevant acknowledgment and the burden of proof where a question of prescription arises.

This Practice Note provides guidance on the special rules that apply in relation to the prescriptive period for obligations to make reparation/pay damages. It covers when such obligations become enforceable generally, modification due to a continuing act or omission and awareness of damage and causation (the ‘discoverability’ test). It provides an overview of the key cases on prescription in Scotland including the Supreme Court decisions in Morrison v ICL Plastics and Gordon’s Trustees v Campbell Riddell and the Court of Session decisions in Midlothian Council v Raeburn Drilling and Geotechnical Ltd, Loretto Housing Association v Cruden Building, WPH Developments v Young & Gault and C&L Mair v Mike Dewis Farm Systems Ltd. It also provides guidance on the statutory amendments to the discoverability test by the Prescription (Scotland) Act 2018 and notes the position regarding collateral warranties.