Prescription (Scotland) Act 2018 - Consultation on Commencement Regulations

The doctrine of prescription serves a vital function in the civil justice system. Negative prescription sets time-limits for when obligations (and rights), such as obligations under a contract, are extinguished. The Prescription (Scotland) Act 2018, when commenced, will make a number of changes to the rules of negative prescription, addressing certain issues which have caused or may cause difficulty in practice. The Scottish Government asked for the views of interested parties to draft commencement regulations that will bring into force the substantive provisions of that Act.

A range of issues were raised by respondents and are discussed in more detail in the separate analysis section. Briefly, these are:

• The appropriate length of lead-in time before substantive provisions of the 2018 Act take effect;
• Whether all substantive provisions of the 2018 Act require the same 3 year lead-in period;
• “Straddle rights”;
• The interaction between clauses 3 and 4 of the draft Regulations; and,
• Express provision that litigation commenced would proceed under the regime in force at that time.

A majority of stakeholders agree that a 3 year lead-in period between the commencement regulations being made and the substantive provisions of the 2018 Act coming into force.

The Scottish Government’s reason, as set out in the consultation, for considering that all substantive provisions of the 2018 Act should come into force after 3 years is that a sufficient period lead-in period will allow creditors/debtors time to set their affairs in order.  In response, it was said that not all substantive provisions need this length of lead-in.  Two provisions in particular were mentioned: standstill agreements and the amended discoverability test. We are persuaded by these arguments and therefore we will seek to commence provisions regarding these at an earlier date.

The SSI as made can be found at the following link - http://www.legislation.gov.uk/id/ssi/2022/78.