Pensions litigation in Scotland
Produced in partnership with Frances Ennis of Bellwether Green

The following Pensions practice note produced in partnership with Frances Ennis of Bellwether Green provides comprehensive and up to date legal information covering:

  • Pensions litigation in Scotland
  • Prescription
  • General principles
  • Example
  • How the Scottish courts deal with pension schemes
  • Definition of ‘deed’
  • Low & Bonar v Mercer—the facts
  • Arguments made by the pursuer and defender
  • The court’s decision
  • Wider impact of the case
  • More...

Pensions litigation in Scotland

Prescription

The starting point for any legal advisor in considering raising an action is ascertaining the timeframe within which any claim(s) must be brought. In Scotland, this is covered by the Prescription and Limitation (Scotland) Act 1973, which deals with the ‘prescription of obligations’ (as opposed to the ‘limitation of actions’ in England and Wales).

General principles

Before considering any timeframe within which a claim in respect of an obligation ought to be brought, it is necessary first to consider the type of obligation in question and consequently, the section of the 1973 Act to which such an obligation relates. In general terms, claims relating to the administration of pension schemes may well fall within the Prescription and Limitation (Scotland) Act 1973, s 6 although of course, potential issues can range from professional negligence claims against scheme administrators to liability for contingent debt.

The types of obligations covered by section 6 are found in Schedule 1 of the Prescription and Limitation (Scotland) Act 1973. For present purposes, they include ‘any obligation arising from, or by reason of any breach of contract’.

Section 6 provides that an obligation will be extinguished if, after a continuous period of five years:

  1. no claim has been brought in respect of it, or

  2. no relevant acknowledgement of the subsistence of the obligation has been made

The point at which the clock starts

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