On 5 December 2007 the Scottish Law Commission published a
report recommending a new five year time limit for personal injury
claims. The Scottish Law Commission is a law reform body, which
exists to recommend ways of simplifying, updating and improving the
law of Scotland.
The report follows two references by the Scottish Ministers in
2004 and 2005 and separately two separate petitions to the Scottish
Parliament in 2002 and 2005. The references were driven by the
concerns of pursuers' representatives about prescription and
limitation in Scotland, particularly with reference to industrial
disease claims and alleged institutional child abuse claims. It is
therefore of little surprise that the recommendations were
announced as aimed at helping claimants and their
representatives.
The recommendations relate to proposed changes in the current
legislation contained in the Prescription & Limitation
(Scotland) Act 1973. The principal recommendations are:
? Extend the current three year limitation period to five
years
? Change the method of calculating the date from which the five
year time limit begins to run - often by extending it forward
? Continue the current judicial discretion to allow time barred
claims to proceed, but with an express list of factors to assist
the court in exercising its discretion
? Make no change to the current provisions relating to 'long
negative prescription' whereby claims which prescribed before
September 1984 can no longer be pursued.
This final recommendation means that the alleged victims of
institutional child abuse, whose claims prescribed before 26
September 1984 have not been able to persuade the Scottish Law
Commission to support their proposal that the law of prescription
should be abolished for all claims. However, the interests of
defenders and insurers appear to have played little part in the
thinking behind that recommendation. Instead it was driven by other
considerations: incompatibility with the ECHR; whether it could
competently be enacted by the Scottish Parliament; and whether the
claims would in any case be able to proceed as a result of the law
of time bar.
The report contains a draft Limitation (Scotland) Bill. If
enacted, it would reduce the circumstances in which a time bar
defence would be available to defenders. Similarly, the aim appears
to be to ensure that where a claim is time barred a more pursuer
friendly approach will be taken to the question of allowing the
action to proceed although late in terms of the current 'judicial
discretion'.
It remains to be seen what will come of the draft bill. In the
meantime, you should bear in mind that if the proposals are enacted
then there will be implications for claims handling. All files will
require to be retained open for longer, which will in turn have
implications for the responsibilities placed on your insured for
proposal and underwriting purposes. In addition you can expect an
increase in some types of claim particularly certain disease
related claims. These proposals, taken together with the ongoing
Civil Justice Review process reported in our Breaking News of 27
November 2007 and the apparent willingness of the Scottish
Parliament to legislate, mean that we certainly live in interesting
times.