BTOverview: It's about time!

In Scotland there are certain time limits in which actions must be raised. Those limits are set out in the Prescription and Limitation (Scotland) Act 1973 which provides, amongst other things, that obligations to make reparation for breach of contract extinguish five years after the pursuer is aware they have suffered loss, injury or damage.

For decades, it was generally accepted that until someone was aware that something had gone wrong (or could have discovered that something had gone wrong), the clock did not start to tick. That understanding was disabused in two recent Supreme Court cases in which the court held that knowledge of loss was something to be determined objectively, with the benefit of hindsight.

This article looks at how the issue was recently considered in the context of a construction claim in the case of Midlothian Council v Bracewell Stirling Architects & Others 2019 CSOH 29. The article also outlines how the new Prescription (Scotland) Act 2018 seeks to redress the perceived harshness arising out of cases like Midlothian.