PRESCRIPTION AND LIMITATION (SCOTLAND) BILL [H.L.] (Hansard, 5 April 1973)

§ LORD POLWARTH
My Lords, I beg to move that this Bill be now read a second time. This Bill implements the Report of the Scottish Law Commission on Reform of the Law relating to Prescription and Limitation of Actions; and I must acknowledge the Government's debt to the Commission, not only for a very clear and comprehensive Report, but also for the major part they have played in preparation of the Bill. In so far as the proposed legislation differs from their Report, the changes have been agreed with or, indeed, in the majority of cases, suggested by the Commission.
On First Reading of this Bill your Lordships displayed some interest, verging at moments almost on levity, in the wording of the Long Title, which is rather splendid and certainly shows that the subject we are dealing with is not exactly 419 new. Your Lordships may be glad to know that having visited the Register House in Edinburgh in person and inspected the contemporary manuscripts of the Acts of the Scots Parliament of 1469, 1474 and 1617, referred to in the Long Title, I can vouch for their actual existence. And while there do not appear to be records of those present at the passing of the two earlier Acts, the record of sederunt, as it is called, of the 1617 Acts contains names as well known to your Lordships as Lothian, Lauderdale, Perth, Home and others.
Perhaps before dealing with the Bill's provisions I should say a brief word about the subject matter. "Prescription" is the term used to describe the legal effect of the passage of time on various rights and obligations. Thus, for instance, under the positive prescription, a title to land which is not challenged becomes, after a period of time, unchallengeable; and under the negative prescriptions rights or obligations which are not enforced become, in time, unenforceable. The Bill also deals with the limitation of actions for damages for injury or death. Again, the limitation refers to the period of time within which an action may be brought by the injured party or his representatives. On expiry of the limitation period such an action is no longer competent.
At first sight, the subject may appear somewhat technical, but the law on prescription and limitation affects a very considerable number indeed, probably the majority, of the people in Scotland, either directly or indirectly, in a variety of ways. For example, if we wish to buy or sell a house in Scotland, the cost of the transaction will include fees for a search through the appropriate registers to check the quality of the title, and to confirm that the property is free from any undisclosed burdens; and the amount of work involved in examining earlier titles will depend in part on the length of the prescriptive period. Then again, those involved in business or in a profession will, in part, determine their policy in the extending of credit and in the recovery of debts due to them by reference to the period within which the claim for repayment may legally be made; and this in turn will affect their respective customers or clients. And, of course, the limitation of actions will be of immediate interest to 420 anyone who is unfortunate enough to suffer industrial injury or to contract an industrial disease, or who may simply be involved in a traffic accident. This Bill is therefore an important measure, which seeks to make the law on these matters both clearer and more readily ascertainable by those affected by it.
Part I of the Bill, comprising Clauses 1 to 16, is concerned with prescription, both positive and negative. Part II deals with the limitations of actions, and Part III, which consists of only two clauses, regulates the scope, commencement and extent of the proposed legislation. Clauses 1 to 5 make certain amendments in the law relating to the positive prescription. At present, the prescriptive period for feudal titles—and the great majority of titles to land in Scotland are feudal—is ten years. Under the provisions of the Bill the same period would be applied to all recorded titles, including registered leaseholds which are at present subject to a 40-year period. On the other hand, so far as unregistered leaseholds are concerned, the Commission took the view that the period of positive prescription appropriate to an unrecorded title should be longer than that for a title recorded in the public register. Nevertheless, in modern times, the existing period of 40 years seemed unduly long. For all unrecorded leasehold titles, therefore, a 20-year period was considered fair, both to the party in possession of the title and to anyone who might have an interest in challenging the validity of that title. The Commission's recommendations are implemented in the Bill. Similarly, for servitudes and public rights of way, a 20-year period is substituted for the present prescription of forty years. Again, in modern times, forty years seemed excessive and presented problems in the provision of evidence necessary to establish the right.
These are the major changes proposed in relation to the positive prescription and, while important, they are of a relatively minor nature. They will affect fewer people than the rather more radical amendments proposed in Clauses 6 to 13 dealing with the negative prescription. At present, the law on negative prescription is derived from a number of Statutes dating back to 1469. Apart from the long negative prescription, which cuts off rights and obligations to which it applies 421 after twenty years, and which is retained substantially in its present form, there are a number of short prescriptions applying to various categories of debts and having different effects in relation to the obligations to which they respectively apply.
Thus, there is the triennial prescription which applies to actions of debt for urban rents, board and lodging, tradesmen's accounts, and other similar items. This prescription does not extinguish the debt, but simply imposes a limitation upon the mode of proof available to establish the creditor's right to repayment. After expiry of the three-year period, the creditor may only prove the existence of the debt, or the fact that it is still due, by reference to writings of the debtor or to an acknowledgment given by the debtor under oath. Similarly, the quinquennial and sexennial prescriptions, applying for example to verbal contracts of sale or hiring—to which the five-year period applies—and bills of exchange and promissory notes (which are subject to the six-year prescription) affect not the existence of the debt but the mode of proof whereby the debt can be proved. The septennial prescription, on the other hand, which applies to certain types of cautionary or guarantee obligations, totally extinguishes these obligations after seven years.
These various shorter prescriptions, based on old Statutes, have been the subject of considerable judicial and professional criticism over the years. The Scottish Law Commission recommended that they should be replaced by a new short negative prescription of more general application. This recommendation is given effect at Clause 6, which enacts a new short prescription of five years, applying to the majority of everyday commercial transactions and to a number of less common obligations which are listed at Schedule 1 to the Bill. The effect of this prescription will be to extinguish the rights and obligations to which it applies.
For those obligations which are not caught by the new short negative prescription, the long prescription of twenty years is retained, subject to the exclusion of certain imprescriptible rights and obligations which are listed at Schedule 3. These imprescriptible rights include, for example, a real right of ownership in land, or the 422 right to exercise the ordinary uses of property, which the proprietor may assert or not as he pleases, without the risk of losing the right by failure to assert it.
The Bill also makes provision for the interruption of prescriptive periods, either by the making of a formal claim by the creditor in terms of Clause 9, or by an acknowledgement by the debtor in appropriate form, as set out in Clause 10. The methods of ascertaining the commencement date for, and the computation of, prescriptive periods are provided for at Clause 14 and Schedule 2. It is, I think, unnecessary to go into the proposed rules in detail to-day. Perhaps it would suffice to say that these are not markedly different from existing rules of law, and are mainly aimed at resolving any possible doubt or difficulty by providing a clear statutory code, readily ascertainable and understandable by both debtors and creditors.
Subject to four minor amendments, Part II of the Bill simply consolidates existing enactments relating to the limitation of action. These amendments are made at the instance of the Scottish Law Commission for the purposes of interpretation, clarification and the removal of anomalies. Part II of the Bill contains the usual provisions concerning extent and date of commencement. The provisions of this measure have been carefully thought out by the Scottish Law Commission who have consulted widely on the reforms proposed. They have met with a wide measure of acceptance, and I trust they will commend themselves to your Lordships' House. My Lords, I beg to move.

§ LORD HUGHES
My Lords, I am grateful to the noble Lord, Lord Polwarth, for the explanation he has given of this rather complicated Scottish legal Bill. If what he said throughout was not a source of complete information to all the Members of your Lordships' House, we can at least congratulate the Minister on having read it beautifully! I doubt very much, for instance, whether everyone in the House knows exactly what "prescription" means. He did not explain that. I am not inviting him to do so because I doubt very much whether there are many people all that interested. I did have a joke 423 about the Long Title of the Bill when it was introduced. I notice on reading Schedule 5 that it starts by repealing 13 Acts of the Scottish Parliament. Of these, 8 are described as Prescription Acts but, for some reason which is perfectly sound but is not obvious, only 3 of those Acts are listed in the Long Title. I am perhaps now about to hand out a bonus for the Scottish National Party when I say that the Scottish Parliament seem to have been a more efficient body than the Westminster Parliament, because 13 Acts of Parliament between 1469 and 1696 appear to have been sufficiently good as not to require to be repealed before 1973. I doubt whether there will be many Acts of the present Parliament which will last so long.
I have no objection at all to the principles contained in this Bill. I agree with the noble Lord, Lord Polwarth, that the Scottish Law Commission have done a good job. I congratulate the Government on having accepted their advice on this matter. On the subject of the short prescription, it is obviously a more sensible procedure in modern circumstances to have a single period of 5 years for the greater part, rather than to have periods ranging from 3 to 10 years and, in one case, even 20 years being characterised as a short period.
What I would have thought reasonable, having brought the Acts into the 20th century, would be to have gone a stage further and brought the language into the 20th century at the same time. I do not expect the Minister to give me an answer to what I am going to ask today. If the Election had gone the other way I have not the slightest doubt that I would have been moving this measure instead of him, and if he had asked me the questions which I am now about to ask him, I would not have known the answers offhand; so I do not expect him to know them either. The sort of thing which may be perfectly clear to a lawyer but which is nothing short of nonsense to a layman is contained in Clause 1(3) which reads In the computation of a prescriptive period for the purposes of this section in a case where the deed in question is a decree of adjudication for debt, any period before the expiry of the legal shall be disregarded. One would expect that there was a word missing after the word "legal". To 424 most people "legal" is an adjective. Incidentally, I consulted a lawyer friend in Scotland about this and he ought to have known about it; but what he said was that there was obviously a word or words missing after "legal". However, I looked up the word in the dictionary in the Library this afternoon and discovered that "legal" in Scottish law is apparently only a noun. It is a piece of legal shorthand and means the legal period within which reversion is permitted. Generally speaking, I am in favour of using fewer words in Bills rather than more. I think that there is something to be said for using sufficient words to make clear, both to those affected and the lawyers who are going to act for them, exactly what is meant. This becomes more so when I read Clause 6. In the middle of subsection (1) it says: then, as from the expiration of that period, the obligation shall without more be extinguished". The obvious thing one would ask is: without more of what? It was suggested to me that if this was not a legal Bill, but was in ordinary English, one would say perhaps, "without more ado". But that is too simple a word to appear in an Act of Parliament, so obviously that word is not missing. Neither the large Murray dictionary nor the shorter two volume one can give me any help; the word "more" does not appear there as a noun anywhere. It may be another piece of Scottish legal shorthand, but we are entitled to know what it means.
To take some of the other things: there is reference to the "owner of the regalia". That explains itself; but I was told that "regalia" means in the possession of the Sovereign. It seems needless to say, "against the Crown as owner of the regalia". If "regalia" means in possession of the Sovereign, why does it need to be described as the owner of the regalia? A reference is made to something in possession of the relative dominant tenement. To any Scot this would be taken as meaning the high buildings which we have in Scotland. It is not; it is something much more complicated and wide ranging.
These are some of the examples; and then there is the regular use of Latin words when English is possible. For instance, right at the early part of the Bill there is reference to: or in land of a description habile … 425 I am told that means competent or proper. Why cannot we put these things in English? I had a brief discussion with a Member of your Lordships' House who suggested that we might put these things into Gaelic. Even fewer of us would understand if that were done.
The Bill is a good one; it makes this important subject suitable for modern usage. It would be an even greater improvement if anyone affected could, for the greater part, understand it by reading it, and did not have to consult a lawyer in the first instance, because the language is so peculiar, to see whether or not he is affected.

§ LORD POLWARTH
My Lords, I readily accept Lord Hughes's invitation not to answer the specific questions that he has raised, while thanking him formally for his general acceptance of the Bill. I am all in favour of anything to simplify what, with deference to my noble and learned friend on the Woolsack, I would call legal "mumbo jumbo". I am assured that the difficulty in this Bill is that it deals only with the law in relation to prescription and limitation; in other words, the effect of time on a number of other matters. Terms of this kind are in use in other areas of the law. Consequently, it would not be appropriate to make changes of this nature in this Bill, even if they are considered desirable. Whether such a change is desirable is another question which, with regret, we cannot discuss to-day in the context of this Bill with its limited effect. Nevertheless, I am grateful to the noble Lord for his acceptance of the Bill in principle.