The sands of time (or prescription)

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Prescription: terror of the legal profession

When I discuss prescription with students for the first time, I usually can’t resist making the (admittedly) lame observation that it has nothing to do with going to see your General Practitioner for a medical appointment. Though, these last few days, I have been talking a lot about the Coronavirus or COVID-19 and the legal implications of this outbreak for sickness absence from work and eligibility for sick pay.

No, prescription has nothing to do with medicine and is a concept that all lawyers should be familiar with – indeed live in terror of perhaps?

I well remember one developer of legal software informing me that his case management system for personal injury claims had a feature which regularly provided a countdown towards the last possible date when a prospective claim must be submitted to the appropriate court with jurisdiction to hear the matter (so no excuses then?).

Lawyers who fall foul of prescription may well be opening a can of worms for themselves because the clients will almost certainly attempt to sue them for professional negligence.

If the principle of prescription is being deployed by the opposing side in a legal action, you (and your client’s case) may be in serious trouble.

In what way?

Essentially, you have not submitted the claim or complied with court procedures (e.g. deadlines for submission of documents/evidence) within the required time allowance.

In terms of the Prescription and Limitation (Scotland) Act 1973, most delictual (tort) claims must be brought within five years of damage to property. In terms of contractual actions, a pursuer or a claimant who is contemplating legal proceedings in Scotland will usually have 5 years from the effective date of the breach to submit a claim (the quinquennium).

On the other hand, personal injury claims must usually be lodged within three years of the date of the incident which caused injury (the triennium).

In England, the prescription period for contractual claims is 6 years and for most other claims the period is 3 years.

Time limits for submission of claims will be strictly adhered to – unless the Scottish courts deem it just and equitable to extend them.

Sometimes, certain claims – principally Employment Tribunal claims – must be submitted by the claimant in a very short space of time. Normally, for most employment claims (including discrimination claims), the claimant must submit an ET1 application to the Employment Tribunal within 3 months minus 1 day of the act that she is complaining about. If the dismissal from employment took place on 5 March, a claim for unfair dismissal must be submitted by 4 June – at the very latest – otherwise it will be time barred. Admittedly, for equal pay claims, longer time limits apply i.e. 6 months minus 1 day from the discriminatory act complained about.

Prescription is an extremely powerful weapon that can be used by an opposing lawyer to knock out another person’s claim. If prescription is relevant, then the merits of the case will simply not be discussed. The claim is time-barred and that is usually that (see the UK Supreme Court’s decisions in David T Morrison & Co Limited v ICL Plastics [2014] UKSC 48 and Gordon v Campbell Riddell Breeze Paterson LLP (Scotland) [2017] UKSC 75).

Out of time!

In two fairly recent cases before the Outer House of the Court of Session, the issue of prescription was successfully argued by the defenders’ legal teams.

In the first case – Brian Alexander Gracie v Edinburgh City Council [2019] CSOH 6 – an incident which had allegedly taken place in 1965 was time barred (unsurprisingly) on the grounds of prescription. More bizarrely, Mr Gracie, the pursuer himself admitted that he had little recollection of the incident and there was scant evidence to support his assertions in any event. Gracie was alleging that, while at school in the 1960s, the teaching staff had failed in their duty of care to him by permitting him to run out from the playground on to the road where he was hit by a car. Needless to say, his claim for a staggering £650,000 in damages was swiftly dispatched by the council’s lawyers.

A link to the decision of the Outer House in the above case can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019csoh29.pdf?sfvrsn=0

In the second case – Midlothian Council v David Anderson Keith and others [2019] CSOH 29 – the council had built a housing development on land at Gorebridge which later turned out to be be dangerous because of gas leaks seeping from old coal mines at the site. The site was later demolished and rebuilt because of the risk to human health.

It had instructed a survey prior to the build and the engineering firm which carried this out had assessed the risk from gas to be very low. Due to this assessment, gas defences (e.g. a gas membrane) were not included in the build. In 2013, levels of gas harmful to humans were detected at a site property.

The council wished to sue the firm for allegedly providing negligent advice under their contract. The claim was dismissed by reason of prescription i.e. the contractual obligations between the two parties had become extinct. It’s worth noting that the engineers never accepted liability – the clinching argument of prescription made debate about liability completely irrelevant.

The disagreement between the two sides centred around the point at which the five year prescription period began. The engineering firm argued that it began when the development was completed (June 2009); the council responded by arguing that the critical date was when the high levels of gas were detected at the site (7 September 2013).

Lord Doherty clearly relied upon the UK Supreme Court decision in Gordon v Campbell Riddell Breeze Paterson LLP (Scotland) [2017] UKSC 75. The key date from which the 5 year prescription period should run was the date of completion of the housing development. His Lordship was firmly of the view that the key event was the date when the council placed reliance on the engineering firm’s assessment that it was safe to build on the site. This reliance could be pinpointed to a period between December 2007 and June 2009 i.e. when the development was commenced and completed. The action against the engineers (who never admitted liability) was commenced on 4 September 2018 – nearly 9 years after the development had been completed. The council’s claim was, therefore, dismissed.

A link to the decision of the Outer House in the above case can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019csoh6.pdf?sfvrsn=0

Overriding prescription?

There is, however, a provision in Section 19A of the Prescription and Limitation (Scotland) Act 1973 which does permit a judge to override the normal rules about prescription. Claims which would normally be time barred may be permitted to proceed to a hearing under Section 19A if the judge believes that it is equitable to do so.

Such an approach was taken in the case of A v Glasgow City Council [2018] CSOH 116 which arose out of the events of the Glasgow Lorry Incident in December 2014. Relatives of the victims of this tragedy were permitted to proceed with their legal actions despite the relevant time limits having passed because it would not have been in the interests of justice to time bar the claims on a technicality.

A link to Lord Doherty’s Opinion in A v Glasgow City Council [2018] CSOH 116 can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2018csoh116.pdf?sfvrsn=0

Removal of the 3 year limitation period – historical child abuse claims

Sometimes Parliament will permit claims to proceed to court – even if they would normally be time barred or fall foul of prescription. This will be achieved by passing legislation and one recent example is the Limitation (Childhood Abuse)(Scotland) Bill.

Clearly, Parliament’s purpose in waiving the normal rules of prescription which are normally strictly adhered to by the Scottish courts is that it is just and equitable to do so. Put simply, the legislation is about righting an historic injustice.

On 14 March 2016, the Scottish Government published a draft Limitation (Childhood Abuse)(Scotland) Bill which was in response to the Consultation on the Removal of the 3 Year Limitation Period from Civil Actions for Damages for Personal Injury for In Care Survivors of Historical Child Abuse.

The draft Bill proposed to remove the triennium or 3 year time limit for cases of historical child abuse that allegedly took place after 26 September 1964.

This Bill was eventually passed by the Scottish Parliament becoming the Limitation (Childhood Abuse)(Scotland) Act 2017. It represents an exception to the normal rules regulating the limitation period for the submission to Scottish civil courts in relation to personal injury claims of this nature.

Conclusion

Time and tide wait for no one; delay is fatal; or tempus fugit (i.e.time flies) can all be applied to legal actions. If you don’t use it (i.e. your right to take court action), you lose it. This is quite sensible: it means that there is a natural cut off for legal actions and, consequently, the courts will not be swamped (well any more than they already are).

Another sensible viewpoint is that litigation should take place fairly quickly so that the evidence of litigants is fresh in the memory (the case of Brian Alexander Gracie v Edinburgh City Council [2019] CSOH 6 is an excellent illustration of this (see above).

Parties bringing claims to Scottish civil courts must be aware of the following:

  • The Triennium or 3 year period in which a claim for personal injury must be submitted; and/or
  • The Quinquennium or 5 year period in which contractual claims or delictual claims for property damage must be submitted.

Admittedly, Section 19A of the Prescription and the Limitation (Scotland) Act 1973 does allow Scottish judges to override the principle of prescription if it is just and equitable to do so.

Speaking of just and equitable grounds, the Scottish Parliament passed the Limitation (Childhood Abuse)(Scotland) Act 2017. This legislation represents an exception to the normal rules regulating the limitation period for the submission to Scottish civil courts of personal injury claims which involve historic child sex abuse allegations.

As a general rule of thumb, however, prescription remains the terror of the legal profession: get the client’s claim submitted on time or face a professional negligence claim.

Copyright Seán J Crossan, 6 March 2020