What was believed to be the established legal position in relation to claims for latent damage and when the right to make such claims might become time-barred was changed by the case of David T Morrison & Co Ltd (t/a Gael Home Interiors) v ICL Plastics Ltd [2014] UKSC 48.

In order to address the concerns that have arisen as a result of this case, the Scottish Law Commission has published recommendations for the Reform of the Law of Negative Prescription. Its Report comments upon the scope of the five year and twenty year periods of negative prescription which broadly arise under Sections 6, 7 and 8 of the Prescription and Limitation (Scotland) Act 1973. The recommendations are set out in a Report which can be found here.

This Report runs to some 124 pages, but of key interest is that the Report recommends that before the five year prescriptive period begins to run (1) the creditor must be aware that loss, injury or damage has occurred; (2) that the loss or injury or damage was caused by act or omission; and (3) of the identity of the person responsible for the act or omission.

The Scottish Law Commission

The Scottish Law Commission also notes that in the Morrison decision reference was made to their unimplemented 1989 Report.

The repercussions of the Morrison decision continue to be felt and another prescription case Gordon and others, as the Trustees of the Inter Vivos Trust of the late William Strathdee Gordon (Appellants) v Campbell Riddell Breeze Paterson LLP (Respondent) (Scotland) UKSC2016/0142 was heard by the Supreme Court on 19th July 2017 and the decision is awaited.

It does of course remain to be seen whether or not the Scottish Parliament find time in its legislative programme to implement the recommendations. One can only hope that it does as clarity in the law of prescription is fundamental to providing advice to clients regarding their rights and remedies in contentious or potentially contentious situations.