Limitation of Actions Consultation - Law Commission

(who may not be immediately identifiable) to make reparation to [the pursuer].” 30
This connotes knowledge of the legal significance of the events, which in turn
suggests some knowledge of the relevant law. This is more favourable to plaintiffs
than the English position, where knowledge of the legal significance of the facts is
not required. 31
But knowledge of the defender’s identity is not relevant, 32
which is
less favourable to the pursuer than the English law. 33
The Scottish Law
Commission has recommended that the discoverability formula should expressly
include knowledge that the damage was attributable to the act or omission, and
knowledge of the defender’s identity, 34
but that knowledge of whether an action lies
in law in respect of the act or omission should be expressed to be irrelevant. 35
10.15 There is no judicial discretion to extend or disapply the short negative prescription
period. In its report published in 1989 the Scottish Law Commission
recommended that no such discretion should be introduced. 36
10.16 The running of the short negative prescription period is excluded where the
plaintiff refrains from making a claim because of fraud on the part of the defender
or his agent, 37
or because of error induced by the words or acts of the defender, 38
or while the original creditor is under legal disability. 39
It may be noted that the
form of words used here appears to allow for the suspension of a prescription
period which has already started to run, and for more than one suspension of the
same prescription period.
10.17 The running of a short negative prescription period is halted either by the bringing
of a claim or by the making of part performance which clearly indicates that the
obligation still subsists, 40
or by an acknowledgement. 41
The acknowledgement must
be “an unequivocal written admission clearly acknowledging that the obligation
still subsists”. As the short negative prescription applies generally to claims in
delict and contract, other than specifically excluded classes such as claims for
personal injury, defamation and defective products, it follows that
acknowledgement and part payment are available to stop the clock in a wider class
of cases than in English law.
30 Ibid, 345.
31 See para 3.95 above.
32 In Dunfermline DC v Blyth & Blyth Associates Lord McDonald said that the pursuer would
have “five years to identify the [defender] and bring his claim against him.” 1985 SLT 345,
345.
33 See para 3.94 above.
34 Report on Prescription and Limitation of Actions (Latent Damage and Other Related
Issues) (1989) Scot Law Com No 122, paras 2.32 - 2.51.
35 Ibid, paras 2.52 - 2.55.
36 Ibid, paras 2.81 - 2.83.
37 Prescription and Limitation (Scotland) Act 1973, s 6(4)(a)(i).
38 Ibid, s 6(4)(a)(ii).
39 Ibid, s 6(4)(b).
40 Ibid, s 10(1)(a).
41 Ibid, s 10(1)(b).
184