The Supreme Court has handed down its judgment in Gordon & Others v Campbell Riddell Breeze Paterson LLP, in which Brodies represents the successful Respondents.
The decision further clarifies the rules on the prescription of claims in Scotland (known as limitation in England). The Supreme Court previously held in David T Morrison & Co Limited v ICL Plastics [2014] UKSC48 that in terms of the Prescription and Limitation (Scotland) Act 1973, a claimant need only be aware of loss or damage in order to trigger the five year prescriptive period generally applicable to breach of contract or negligence claims, irrespective of whether the claimant is aware of any breach of duty causing such loss or damage.
Today's judgment confirms that expenditure incurred (in this case fees for professional advice) on the part of a potential claimant as a result of such negligence or breach of duty is a recoverable loss. Awareness of any loss (here,a failure to obtain vacant possession of agricultural land so as to be unable to realise its development value, or the expenditure on fees incurred) is sufficient, of itself, to trigger the applicable prescriptive period.
The law in this area is currently subject to proposals for reform. However, the judgment confirms that for the time being, the prescriptive period applicable to Scottish claims runs from the date that a claimant became aware, or could with reasonable diligence have become aware, of having sustained a loss.
This is irrespective of whether the claimant is aware of any fault or negligence. It should be noted however, that in cases where the loss suffered is purely economic, it may be possible to argue for a later start date on the basis that the claimant was only aware of a contingent loss which has in fact not yet occurred.
For further information please get in touch with your usual Brodies contact or one of the individuals listed below.
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