Prescription (Scots law)

Prescription in Scots law allows the creation or extinction of personal and real rights. There are two forms of prescription: (1) positive prescription, which creates certain real rights, and (2) negative prescription, which extinguishes both personal and real rights. Prescription is different from limitation, which prevents the raising of court proceedings or litigation in relation to civil law matters in Scottish courts, primarily affecting personal injury claims arising from delict as these are exempt from prescription. The terms prescription and limitation are used in other jurisdictions to describe similar rules, mainly due to shared Roman law and Civil law heritage.

The law of prescription, although a long-standing feature of Scots property law, has been the subject of modern reform, primarily following on from reports on the law by the Scottish Law Commission (SLC). The SLC's main reports on prescription, with some of the recommendations of these reports adopted and introduced into statute, are:

  • Reform of the Law Relating to Prescription and Limitation of Actions (1970, SLC Report No 15)
  • Prescription and Limitation of Actions (Latent Damage and Other Related Issues) (1989, SLC Report No 122)
  • Personal Injury Actions: Limitation and Prescribed Claims (2007, SLC Report 207)
  • Prescription (2017, SLC Report No 247)

Despite these reforms, the primary source of law regulating prescription is still the Prescription and Limitation (Scotland) Act 1973. The 1973 Act was last subject to major reform under the Prescription (Scotland) Act 2018, which followed on from the SLC's 2017 Report.

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