Law Society: Time to review time limits on raising court actions

In its response to a discussion paper published by the Scottish Law Commission (SLC) on prescription law, the Law Society has said that clarity on time limits could reduce time and money spent on raising cases which could be settled outside the courtroom.

The SLC paper examined issues within the law of negative prescription, which establishes the time limit within which someone must raise a clam in court. If the time limit is missed, the ability to pursue a claim is lost.

John Paul Sheridan, convener of the obligations law sub-committee at the Law Society, said: “We’re pleased the Scottish Law Commission has carried out its review on this area of law. At the moment there is a real lack of clarity in some cases as to when the clock will start to run.

“This can lead to proceedings being raised which could otherwise be settled out of court and result in unnecessary cost to the parties raising actions, insurers and the public purse by the use of judicial resources.”

The SLC has proposed that there should be a general rule that rights and obligations arising under statute should come under the five-year prescription period. There would then have to be policy decisions made on whether there should be specific exceptions to that rule which would allow a case to be raised within a 20-year period.

Mr Sheridan said: “Some of the statutory obligations which could be affected might include an obligation for a recipient of legal aid to make a payment to the Scottish Legal Aid Board from property which is recovered through successful legal proceedings. Another would be a statutory obligation to pay child maintenance.

“We also think that council tax would have to be looked at in relation to any change to time limits. At the moment a local authority can make a claim for unpaid council tax payment within a 20-year period. If the general rule were to be adopted then, unless an exception was made, council tax would be caught by the five-year prescription period.”

He added: “A 20-year period is not significantly longer or shorter than other legal systems and for this reason, and in the absence of any compelling reason for change, we would support its retention for certain circumstances.

“Clarity in this area of law, as well as the possibility of ‘standstill’ agreements to allow parties to consider the issues without the need for court action, would reduce the amount of time, money and effort otherwise wasted in bringing forward proceedings.”