Commission proposes to revise time bar rules

"Knowledge test" put forward to determine when time runs against claim

News, 27 February 2006

A revised knowledge test should determine when time starts to run against personal injury claims, according to the Scottish Law Commission - but it has not yet decided how the test should be formulated.

In a discussion paper published today on "Personal Injury Actions: Limitation and Prescribed Claims", the Commission takes the view that the current rule that time runs from when it would have been "reasonably practicable" for the pursuer to learn the relevant facts relating to the claim is unsatisfactory. The courts, it says, have failed to take account of whether the pursuer had a reasonable excuse for not doing what was reasonably practicable.

However the Commission is calling for views on the extent to which the new test should be subjective and take account of the characteristics of the particular pursuer, as opposed to what the ordinary reasonable person would have done.

Linked with this, the Commission asks whether the legislation should contain guidelines for the court in exercising its discretion to allow a claim to go ahead even though brought out of time, while doubting whether guidelines such as now exist in England would make much difference in practice.

No special case for child abuse

Despite some high profile cases of alleged child abuse, the Commission does not propose to change the law so that cases dating from before 1964, which became completely time barred after 20 years, can now be brought. It does not agree that retrospective legislation is justified and thinks it could give rise to human rights issues. There would also be difficulties in defining a special category for such cases.

Since 1984 there has been no absolute cut-off rule of this nature, so that cases of more recent alleged abuse than 1964 can still be brought if not otherwise barred.

Comments on the paper, which can be accessed on the Commission's website www.scotlawcom.gov.uk, are invited by 31 May 2006.