Limitation of Actions Consultation - Law Commission

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(b) Long Negative Prescription 10.18 The long negative prescription period is set at twenty years by the 1973 Act. 42 The period commences when the relevant obligation becomes enforceable. With the exception of latent damage, the same rules apply to the date of enforceability for the purpose of long negative prescription as apply to short negative prescription. 43 Subject to a few exceptions, 44 this section applies to obligations of any kind (including actions for contribution between wrongdoers and most claims relating to property). It also expressly includes claims which are also subject to the fiveyear short negative prescription period. 45 Although in the vast majority of claims in delict or breach of contract the short negative prescription will prevent a claim being made before the long negative prescription period becomes relevant, it is possible that where latent damage has occurred the short negative prescription period might still be running 46 when the long negative prescription period expires, in which case the long negative prescription will extinguish the claim, effectively acting as a long-stop. 47 10.19 As with short negative prescription, no judicial discretion exists to extend or disapply the prescription period, and the Scottish Law Commission has supported the continuation of this state of affairs. 48 10.20 The running of the long negative prescription period will be restarted by a part performance and acknowledgement, 49 but will not be suspended by fraudulent concealment or the pursuer’s disability. 50 10.21 A few types of action are excluded from the operation of the long negative prescription period, including claims under the Consumer Protection Act 1987 (where the provisions are modelled on those for personal injuries but subject to a special ten-year prescription period as provided by that Act); 51 actions for damages 42 Section 7. The Scottish Law Commission has recommended that the period in respect of an obligation to make reparation be shortened to 15 years: Report on Prescription and Limitation of Actions (Latent Damage and Other Related Issues) (1989) Scot Law Com No 122, paras 3.36 - 3.46. 43 See para 10.12 above. 44 See para 10.21 below. 45 Prescription and Limitation (Scotland) Act 1973, s 7(2). 46 Under s 11(3): see para 10.13 above. 47 See Report on Prescription and Limitation of Actions (Latent Damage and Other Related Issues) (1989) Scot Law Com No 122, paras 3.11 - 3.16. 48 Report on Prescription and Limitation of Actions (Latent Damage and Other Related Issues) (1989) Scot Law Com No 122, paras 3.17 - 3.19. 49 Prescription and Limitation (Scotland) Act 1973, s 7(1)(b). 50 The possibility of suspending the long negative prescription period for disability was rejected by the Scottish Law Commission: see Reform of the Law Relating to Prescription and Limitation of Actions (1970) Scot Law Com No 15, paras 28 - 30. See also Report on Prescription and Limitation of Actions (Latent Damage and Other Related Issues) (1989) Scot Law Com No 122, paras 3.43 - 3.45. 51 Prescription and Limitation (Scotland) Act 1973, ss 22A and 22B, inserted by Consumer Protection Act 1987, Schedule 1, para 10. 185
for personal injuries; actions for defamation; and a small number of actions (including recovery of stolen property from a thief and claims against trustees in respect of their own fraud) which are declared by Schedule 3 to the 1973 Act to be incapable of becoming prescribed at all. The last of these will be familiar to English lawyers as mirroring provisions in section 21 of the 1980 Act. (c) Personal Injuries 10.22 Personal injuries actions are governed by the amended sections 17 and 18 of the 1973 Act inserted by the Prescription and Limitation (Scotland) Act 1984. 52 They are similar in broad terms to those applying in English law, 53 and are clearly modelled on those provisions. The restriction which they create is a limitation period rather than a prescription period. 10.23 The limitation period is three years from the date when the injuries are sustained or, if later, from the date when the pursuer first became aware, or it would have been reasonably practicable for the pursuer to become aware, that the injuries were sufficiently serious to justify bringing an action, that they were attributable to an act or omission, and that the defender (or a person for whom he was responsible) was a person to whose act or omission the injuries were attributable. In deciding the seriousness of the injuries Scottish law requires the making of the same assumptions as does English law, namely that the defender does not dispute liability and is able to satisfy a decree against him. 10.24 "Personal injuries" are defined in the same way as in English law, that is, as including any impairment of a person's physical or mental condition, 54 but an important difference between English and Scottish law is that the personal injuries rules apply however the injury was caused. Section 17, dealing with personal injuries not resulting in death, applies to an action of damages where the damages claimed consist of or include damages for personal injuries and there is no requirement that the injuries be caused by negligence, nuisance or breach of duty. The apparent application of this section to claims in trespass would indicate that a case with facts similar to Stubbings v Webb 55 would be decided differently in Scotland. 10.25 Section 18 of the 1984 Act, mirroring section 12 of the 1980 Act, applies similar provisions in a case where the personal injuries result in death. Here, time runs from the date of the death or, if later, the date when the person bringing the action first knew or could practicably have known the facts mentioned above in relation to section 17. 52 Section 2. These replace the old ss 17 - 19 of the 1973 Act, and implement the recommendations in the Scottish Law Commission’s report on Prescription and Limitation of Actions - Report on Personal Injuries Actions and Private International Law Questions (1983) Scot Law Com No 74, Part III. 53 See paras 3.38 - 3.65 above. 54 Prescription and Limitation (Scotland) Act 1973, s 22(1); cf Limitation Act 1980, s 38. 55 [1993] AC 498: see para 3.32 - 3.35 above. 186
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PART I INTRODUCTION 1. WHY DOES THE
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Consumer Protection Act 1987. 12 Th
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periods applicable to them, 29 they
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whether a period of four or five ye
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have been damaged. 54 The Committee
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it is fair to assume that it reflec
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particularly where a defendant is o
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We apprehend that the law of limita
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1.41 Although, plainly, there are a
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(5) actions on a judgment or arbitr
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SECTION A: THE CURRENT LAW PART II
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TABLE 1 Limitation Periods under th
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Nature of Action Starting Point Len
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performed even after they are first
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promise by the guarantor that the d
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The fact that the damage was not at
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whether the ‘reasonable discovera
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limitation period that commission,
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the starting of time running from t
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had been no violation of the Conven
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has taken all reasonable steps to o
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3.44 The operation of section 14(2)
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(that is, the amputation). The Cour
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assess the intelligence of the plai
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approach taking into account an ind
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But there is a lack of solid and bi
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court will naturally be more inclin
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that the court will wish to exercis
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3.82 The basic provision is section
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enacted in the Latent Damage Act 19
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(2) the identity of the defendant;
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first has knowledge of those facts,
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“once he knew whether or not the
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3.113 The drafting of section 4 has
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(8) A Note on Bailment 3.116 A bail
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PART IV STARTING DATE, LENGTH OF PE
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Property Act 1925 where land is own
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express but implied and constructiv
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with the meaning of fraud in sectio
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was the expression “to recover mo
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from the other beneficiaries who ha
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The situation can therefore arise w
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elation to the apportioned cost) re
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defendant’s unjust enrichment has
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difference between this and the San
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money received will fall within thi
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PART VI STARTING DATE, LENGTH OF PE
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the limitation period running from
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a third party who has dispossessed
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in respect of which time will never
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It is not necessary, however, for t
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(1) where the land has been effecti
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title to the land of the person who
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limitation period is either sixty y
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6.50 Where a lender holds a second
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2. ARBITRATION (1) Arbitration Awar
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outside his control; whether the cl
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local authority entered on to the l
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such actions should be classified a
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7.25 Under section 10(4), where the
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expiry of the time limit; whether n
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(vi) Merchant Shipping Act 1995 (
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Act Nature of Action Starting Point
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Act Nature of Action Race Relations
Page 133 and 134: Act Nature of Action Compulsory Pur
Page 135 and 136: Act Nature of Action Companies Act
Page 137 and 138: Act Nature of Action Ibid, Schedule
Page 139 and 140: Act Nature of Action Town and Count
Page 141 and 142: PART VIII FACTORS WHICH POSTPONE TH
Page 143 and 144: (a) the period applicable in accord
Page 145 and 146: ended in 1993. 25 But, as the next
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Page 149 and 150: supported by the wording of this ph
Page 151 and 152: (4) Proviso to Section 32 8.23 By r
Page 153 and 154: 3. ACKNOWLEDGEMENT AND PART PAYMENT
Page 155 and 156: further agreement by the parties. 8
Page 157 and 158: of discrete debts, and those where
Page 159 and 160: (3) Acknowledgements and Part Payme
Page 161 and 162: PART IX ADDITIONAL ISSUES 1 WHAT HA
Page 163 and 164: 2 WHAT THE PLAINTIFF NEEDS TO DO TO
Page 165 and 166: that the defendants were also debar
Page 167 and 168: laches cannot be invoked where ther
Page 169 and 170: emedy, 52 so that, for example, a p
Page 171 and 172: granted. Under section 13(4) of the
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Page 177 and 178: 9.37 It appears, therefore, that su
Page 179 and 180: SECTION B: OTHER JURISDICTIONS PART
Page 181 and 182: Law Reform (Miscellaneous Provision
Page 183: (who may not be immediately identif
Page 187 and 188: corresponding English provision. 64
Page 189 and 190: 1980 78 ] are so obvious that the e
Page 191 and 192: 10.40 Under the 1991 Act, an action
Page 193 and 194: 10.44 There are two exceptions to t
Page 195 and 196: (7) Factors Postponing the Running
Page 197 and 198: except in the Northern Territory, w
Page 199 and 200: fraudulent breach of trust or the r
Page 201 and 202: (b) while he is, for a continuous p
Page 203 and 204: causes of action. A confirmation is
Page 205 and 206: action. 206 As in England and in ot
Page 207 and 208: discoverable. 228 Moreover, one sho
Page 209 and 210: (6) Actions in respect of Land 10.7
Page 211 and 212: 5. CANADA 10.85 Statutory rules of
Page 213 and 214: (3) Latent Damage 10.90 Nearly all
Page 215 and 216: Central Trust Co v Rafuse, 301 a pr
Page 217 and 218: the new Limitations Act in Alberta
Page 219 and 220: periods may apply for the different
Page 221 and 222: 10.112 Below we shall examine three
Page 223 and 224: product liability, 362 although the
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Page 227 and 228: general, parties cannot renounce fi
Page 229 and 230: (vii) A one-year period 425 applies
Page 231 and 232: prescription is suspended as agains
Page 233 and 234: the same manner as under the Limita
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10.155 In relation to hidden defect
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at achieving a settlement. 512 Simi
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evision and extension of the ground
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pursued in the tort of nuisance 6 b
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open to argument. It is also arguab
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Deliberate concealment (initial and
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11.22 In discussing the options for
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the chance of a limitation period e
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action does not accrue until the fa
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adopt the model of the Latent Damag
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liability in contract and tort - th
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which the demand was made. We would
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(c) that the injury, assuming liabi
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provision for vicarious liability.
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ecommended a definition of knowledg
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12.43 A final question is the exten
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actual knowledge of information was
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12.56 We are of the view that a sim
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the law of limitations and possibly
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negligently, and that the plaintiff
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a definition of who within an organ
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However, we do not believe that it
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to obtain the relevant information
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12.92 It should also be remembered
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We discuss in a later section the i
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(2) A period of 30 years from the a
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in connection with the provision of
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always protect plaintiffs. But a li
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a form of “disability” sufficie
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It is also provided that unless the
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(b) Supervening disability 12.126 B
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In practice a right of action again
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where the injury is known only to t
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isks precisely this injustice, and
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12.148 This leaves two issues for c
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view that deliberate concealment sh
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equirement is inappropriate. Whilst
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Commission felt that the difficulti
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limitation period by entering into
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those rights. 272 We recognise the
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any, the acknowledgement would have
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5 SHOULD THE COURTS HAVE A DISCRETI
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the actual hardships to both sides
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307 See also Deerness v John Keeble
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(1) Whether the core regime should
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13.10 Our provisional view is that
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of action was an intentional trespa
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is the subject of some controversy.
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or police officer to prove 10 years
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consequences, or has been led to be
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eduction in recent years to the lim
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If consultees do not agree, we ask
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(2) To What Extent should the Core
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if a thief’s identity and whereab
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13.59 It can be strongly argued, ho
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If consultees do not agree, we ask
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7 ACTIONS BY A SUBSEQUENT OWNER OF
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ange of disparate sections: and imp
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action, no loss can have occurred u
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13.95 So, for example, in a constru
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of discoverability, offers sufficie
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usually be the time when the land c
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in full to such actions. This would
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actions, and increasing the coheren
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13.125 The situation should also be
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13.131 If such actions are to be br
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12 ACTIONS ON A JUDGMENT 13.137 Und
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13.143 This protection was not comp
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when the distinction was swept away
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authorities and bodies levying char
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performance, injunctions, or other
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common law remedies. 233 This appro
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action have recommended that (contr
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egime but should continue to apply
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94; the Vaccine Damages Payments Ac
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(2) whether they consider that a li
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If a defendant can waive a limitati
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when it is brought to the knowledge
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the rule in land-related actions so
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great advantage in abolishing these
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which was considered determinative
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398
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(2) Definition of the Date of Disco
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(b) the individual would not be exp
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(2) whether, in addition, the defin
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Should an acknowledgement or part p
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6 ACTIONS FOR CONVERSION Are modifi
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and for dishonestly assisting or pr
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13.155 - 13.157. If consultees do n
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2. WHAT THE PLAINTIFF NEEDS TO DO T
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[13 November 1980] APPENDIX LIMITAT
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4A. Time limit for actions for defa
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varies the amount of damages awarde
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of his estate by virtue of section
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and knowledge that any acts or omis
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able to satisfy a judgment. (8) The
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preceding estate or interest or six
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(b) any land is held upon trust (in
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of trust property under the trust,
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ar, the assurance shall thereupon o
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Acknowledgment and part payment 29
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(4) Where in a case within subsecti
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Discretionary exclusion of time lim
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(3) In acting under this section th
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(as the case may be) by way of coun
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In this subsection "duty" includes
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(5) Subject to subsection (6) below
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SCHEDULES SCHEDULE 1 Provisions wit
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7. Accrual of right of action in ca
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corporation sole the right of actio
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9. (1) Nothing in any provision of
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Limitation of Actions Consultation - Law Commission

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