Faculty suggests changes to prescription Bill

 

The Faculty has offered comments on a number of clauses in a draft Bill which is part of the final stages of the Scottish Law Commission’s project on aspects of the law of prescription.

In response to a consultation on the Draft Prescription (Scotland) Bill, the Faculty told the Commission that many of the clauses appeared to achieve their aims satisfactorily.

However, there were areas where the effect was not what was intended, or where a lack of clarity existed.

The Faculty highlighted a particular concern about Section 11(3B) which proposed that “a separate prescriptive period is capable of applying in relation to each debtor”.

The response stated: “The question of whether there should be different prescriptive periods for different defenders arising from a single cause of loss was not canvassed in the Discussion Paper on Prescription.

“The terms of Section 11(3B) appear to permit a pursuer potentially to defer the prescriptive period against a potential defender whose identity they are aware of by choosing not to ‘enforce the obligation’ against that party, while pursuing an action against a defender in relation to loss which both have caused.

“Our view is that Section 11(3B) should be subject to the explicit qualification that no separate prescriptive period will run against a person of whose identity the creditor was, actually or constructively, aware at the same time at which the creditor was aware, actually or constructively, of the identity of the defender(s) against whom they chose to raise an action.

“Qualifying Section 11(3B) in this manner would strike a balance between the need to preserve the rights of pursuers in circumstances where a potential defender cannot be identified by the exercise of reasonable diligence, while providing potential defenders with some certainty as to when their potential liabilities should prescribe.”

The draft Bill and details of the SLC’s project are at https://www.scotlawcom.gov.uk/law-reform/law-reform-projects/aspects-of-the-law-of-prescription/