Hansard

I thank all the members today for their speeches in what has been an important debate. I have listened to what has been said and I welcome the support offered for the provisions of the bill by members of parties from across the chamber.

In closing the debate, I will pick up on a few of the provisions that have been discussed this afternoon, which aim to bring clarity, legal certainty and fairness to the law of negative prescription in Scotland.

As has already been mentioned, section 3 of the bill extends the five-year negative prescription to cover all statutory obligations to make payment that are not already subject to that rule, with some exceptions. That general rule provides a more straightforward means to establish whether an obligation prescribes after five years or after 20 years.

We have already spent a lot of time this afternoon discussing some of the exceptions to the general rule, so I will not go over them again. It is enough to say that there are some exceptions to the rule—obligations that are primarily of a public nature—and that they maintain the status quo.

Section 5 is an important section because it has caused some anxiety among practitioners. The bill seeks to restore a more equal balance between a pursuer and a defender where damages are sought. It does that by laying out a three-part test that, when met, begins the five-year prescription clock. That clock will now not start until pursuers discover the identity of the person responsible for the loss, injury or damage caused or could reasonably be expected to have identified the person responsible.

Equally, the 20-year prescription clock does not carry on indefinitely against defenders. That creates a fine balance between the rights of a pursuer seeking to enforce their obligation and the duties of a defender to undertake their obligation.

In the case of obligations to pay damages, the 20-year prescriptive period begins on the date of the act or omission giving rise to the claim. It makes the 20-year prescription no longer amenable to interruption either by a relevant claim or by a relevant acknowledgment, while allowing the 20-year prescriptive period to be extended in cases where a relevant claim has been made during the prescriptive period and where, by the end of that period, that claim has not been finally disposed of and proceedings are on-going.

Finally, I want to mention the extension of the five-year negative prescriptive period by agreement that the bill allows. The provision recognises the need to balance the interest of legal certainty with a way of resolving disputes that does not require going to court in the first instance. Such agreements can be entered into only after a dispute has arisen and would allow the prescriptive period to be extended by a maximum of one year. I was glad that the committee recognised the merit of such agreements at stage 1.

I again thank members who contributed to today’s debate. I am pleased to hear members express their support for the principles of the bill, which aims to provide fairness, clarity and certainty to areas of the law of negative prescription that have caused practical difficulties in their operation.

The bill’s provisions protect those who have a claim from running out of time in which to proceed with it, change the current situation of possible perpetual liability, including for people who have historical council tax debt, and make clearer which obligations prescribe after five years.

I commend the motion in my name.