Midnight deadlines: when does the clock start ticking in Scottish time bar claims?

If you are considering launching court proceedings in a dispute every day counts – as highlighted by a new UK Supreme Court judgment.

One day late and you will not be able to pursue your claim - no matter its size or its significance.

The case in question was one of professional negligence (heard in the context of the English law of limitation) in which something required to be done by midnight on a Thursday – and had not been.

It was unanimously decided that in a midnight deadline case, there is a complete undivided day (i.e. the Friday) following the expiry of the deadline, which should therefore be included when calculating the limitation period.

This meant that the six year limitation period (the relevant time bar period in this case) started to run on the Friday which, in turn, meant that a claim arising out of misleading information in a company report and rights issue prospectus brought on a Monday six years later was time barred.

That Friday really mattered.

What does this mean for the Scots law of time bar?

First off, it has to be recognised that the law of time bar in England and Scotland is different in a number of key respects.

It is not just that the terminology is different. The type of time bar considered by the Supreme Court is called “prescription” in Scots law rather than limitation.

Also, very significantly, the relevant period in the negligence scenario being considered by the Supreme Court would have been five years in Scotland – not six years as in England.

As for calculating the correct starting date, unlike English law, Scots law has a specific statutory provision – s14(1) of the Prescription and Limitation (Scotland) Act 1973 provides that “if the commencement of the prescriptive period would, apart from this paragraph, fall at a time in any day other than the beginning of the day, the period shall be deemed to have commenced at the beginning of the next following day”.

As a result of s14(1), the outcome in the scenario being considered by the Supreme Court would have been the same in Scotland - the day after midnight (i.e. the Friday) would be included in the computation of time.

However, the route by which Scots law gets there is different which means that the answer will not always be the same under Scots and English law in different scenarios.

English law focusses on when a cause of action accrues. In Scots law, there are other issues which can have a bearing on the assessment of when the prescriptive period starts to run in professional negligence scenarios including an assessment of when “loss” was suffered.

Loss can arise at a later time than the negligent act. Loss is viewed objectively, with hindsight, and interpreted very widely which means that it can include wasted expenditure. This is a very complex area of law in Scotland which is currently being considered by the Scottish appeal court.

A final point to highlight, is that in Scotland, the necessary act to stop the prescriptive clock is the service of the court documents on the person being sued. This means that in practical terms, additional time has to be factored in and in reality it is not possible to leave it to the last minute before midnight!

What does this mean for claimants in Scotland?

Be aware that the law of time bar in England and Scotland is different in significant respects.

But in both jurisdictions, the practical lesson is exactly the same: do not leave it to the last possible moment to start court proceedings to preserve your claim. The risks are too high when every day (and sometimes minute) is counted.

If you have any questions, please speak to Ashley Mawby or get in touch with our Dispute Resolution team.