 Rydw i am ddechrau cerdd, ddim yn siŵr i'ch cael ei syrgu a'r newydd iawn, yn 2018. Gwchai'r gafodd Gysyllt Castlebrant, Alisyn Harris, Bill Bowman yn ddatblygu cael mewn amser yn ddod a Neil Finlayn. Be wnaeth ynddo Dr Andrew Simpson, Dr Elmer Russell ac David Wedderburn yn ei ddull hwnnw i'ch cael ei gŵr? F замos o dîmu yng nghymru advocatei, dwi'n y bobl yn rwyf i'w grwp sydd gwirio. That's a decision on taking business in private. It's proposed that we take items 5, 6, 7 and 8 in private, and those are items 5 and 6 of the delegated powers provisions in the civil litigation expenses and group proceedings Scotland bill, and the social security Scotland bill, both as amended at stage 2. Item 7 is the relevant recent developments in relation to the European withdrawal bill. Item 8 is the third quarterly report on instruments considered this parliamentary year, and then, of course, we've got item 9, which is consideration of the evidence we're about to hear. Does the committee agree to take those items in private? We'll move on to agenda item 2, which is the prescription Scotland bill. Stage 1 evidence. It's the third of our evidence sessions on the bill. We have before us today Dr Andrew Simpson, senior lecturer at the School of Law at the University of Aberdeen. Dr Eleanor Russell, senior lecturer in law at Glasgow Caledonian University, and David Wetterburn, who is described as a forensic architect. I'd quite like to know what a forensic architect is. I'm dual qualified. I have a degree in architecture from Aberdeen and a law degree from Edinburgh and a master's from Strathclyde and construction law. I'll open the evidence session. We've got a number of questions to get through. I'll start off. Probably Dr Simpson and Dr Russell, but don't all feel you have to answer all the questions. If you want to say something, just indicate that you do. The first question we've got. Under the 1973 act, five-year prescription applies to those obligations on one statutory list and not to those obligations on a second statutory list. Sections 1-3 of the bill would extend the scope of the obligations covered by five-year prescription. In particular, section 3 of the bill would extend five-year prescription to all statutory obligations to pay money. Do you agree with the general rule in section 3 of the bill applying five-year prescription to statutory obligations to pay money? Do you agree with the exceptions to that general rule set out in section 3 of the bill? Dr Russell wants to go first. The short negative prescription, as you've just explained, applies only to obligations set out in schedule 1 paragraph 1 of the 1973 act. That list is exhaustive. If a particular obligation is not stated on that list, then the short negative prescription of five years, the quenquenium, as it's known, does not apply to the obligation. There are many statutory obligations to pay money that are not included in that list, and many of those are discussed in the Scottish Law Commission's discussion paper and report. Just to give you some examples, the recipient of legal aid will come under an obligation to repay money to slab the Scottish legal aid board if he or she is successful in legal proceedings. That's clearly a statutory obligation to make payment, but it is not included in schedule 1 paragraph 1 of the 1973 act. A director engaged in wrongful trading will come under an obligation in terms of the Insolvency Act of 1986 to contribute to the company's assets. That, again, is a statutory obligation that is not included in schedule 1 paragraph 1 of the 1973 act. There are obvious omissions in the 1973 act, as currently set out. There is no principled reason why some of those obligations should be excluded. Paragraph 1 sets out particular statutory obligations to make payment that are subject to the short negative prescription, but there is no general catch-all provision at present in respect of statutory obligations to make payment. The provision in section 3 of the bill will plug a lot of gaps. It will also represent a considerable rationalisation of the law, because at present there are certain statutory obligations under particular legislation stated in schedule 1, and those can now be repealed if the general default position goes into the legislation. The new suggestion of having a catch-all obligation to make payment will obviate the need for repeated updating of the legislation as new statutory schemes appear on the statute book. It is very much to be welcomed. As far as the exceptions in paragraph 2 are concerned, I think that the reasons for exempting certain obligations from the five-year prescription and making them subject instead to the 20-year prescription is a political matter. I do not personally have any problem with any of the exceptions stated in the bill, but, as I say, I think that there are essentially political decisions for the committee and for Parliament. Dr Simpson. Again, I agree and I am very little to add to that. I think that the Scottish Law Commission was correct to talk about limiting those two obligations to make payment to statutory obligations to make payment out of the risk of catching a range of other obligations perhaps owed by public bodies that perhaps we would not want to see caught by the five-year prescription. I also think that the distinction that they draw in their report is broadly right. They say that, broadly speaking, they are aiming to capture essentially private law obligations to make payment literally down in statute as opposed to public law, but I also think that they have got it right that it would be very difficult to state a test like that in the legislation. Fundamentally, it is a political matter to determine, on a case-by-case basis, whether further obligations should be included in paragraph 2 of schedule 1. Mr Weddaburn. We do not really have much to add to that and it is not an area that exercised the RIS. That is fine. Thank you for that. The next question is from Stuart McMillan. Thank you, convener. Good morning, panel. It is on section 5 of the bill. Certainly the SLC consulted on four options for section 5 before deciding to use option 3. As a matter of policy, which option do you favour and why? Are there any drawbacks to the option now set out in section 5 of the bill? If you want to provide any examples or any specific types of cases to illustrate your points, that would certainly be very helpful. There we are. I am happy to endorse the Scottish Law Commission's proposal and the approach adopted in the bill to go for option 3. Just for the benefit of all those present, I am sure that everyone is aware, but option 3 proposes to return the law to the pre-Morrison and ICL position but add in a requirement of awareness or constructive awareness of the identity of the defender. I would wholeheartedly endorse that approach for a number of reasons. Firstly, there is a logical reason. David Johnson, who is one of the commissioners behind the commission's bill, notes in his book. He is undoubtedly the leading authority on prescription limitation in Scotland. He points out quite rightly that there is something odd about saying that an obligation is enforceable before one knows against whom it can be enforced. There is that logical argument, first of all. Secondly, I think that there is a comparative argument. The third option is adopted by many jurisdictions across the world. It is adopted down south in England and Wales. It is adopted in France, Germany, New Zealand and South Africa. Although we need not blindly follow what is happening in other jurisdictions, I think that we can learn from what is happening in other jurisdictions. We have to ask why are these other jurisdictions so many of them adopting option 3. I think that, essentially, it is on grounds of fairness, which leads me into the third point. It is not fair that time should run when one does not know who is responsible for the act or omission. Morison, Morison and ICL undoubtedly is harsh on creditors as, two, is the more recent decision in Gordon's trustees and Campbell Riddle. Another reason for my preference for option 3 is that it will reduce expense and administrative costs, because at present creditors or pursuers are often forced to litigate against a multiplicity of defenders, simply because they do not know which one is at fault. I think that this problem is particularly acute in the construction industry, where it might not be clear whether it is a construction defect or a design defect, which is the root of the problem. You may well find that actions are raised against a panoply of defenders, main contractor, various subcontractors, designer, architect, engineer, surveyor and all these people are put to the trouble, time and expense of having to investigate the claim against them, intimate the claim to their insurers and there is an awful lot of wasted resource there. I think that option 3 is preferable on that ground, two. Another point that I would like to raise is a matter of symmetry. In terms of the limitation provisions in the 1973 act and those are the provisions that apply to personal injury actions, the identity of the defender is one of the things of which the pursuer must be aware before time runs against him. So, for example, the victim of a hit-and-run accident, time won't run against him until he knows who was driving the car basically. I think to introduce this requirement of awareness in terms of the prescription provisions will introduce an element of symmetry. So that a solicitor advising a client will know that regardless of whether he or she is dealing with the prescription provisions or the short negative prescription provisions or the limitation provisions, awareness, actual or constructive of the identity of the defender is going to be required. I think this is a fairer approach. It certainly favours pursuers, but of course there is the additional element that it's also going to benefit all those people who potentially could be sued at the moment where there is really no merit in the claim against them. A lot of people are being sued, like in these construction disputes that I mentioned, needlessly. So that will avoid, this option 3 will avoid that happening. As far as drawbacks are concerned, the obvious drawback is that the actual wrongdoer is going to be exposed to the risk of liability for a longer period. I think that that's got to be looked at in the round. This particular provision is going to favour pursuers or creditors, but there are other proposals in the bill that are going to favour defenders and we have to look at the overall balance of fairness in the scheme as a whole. So for all these reasons I would support option 3. Who wants to go there? Mr Wedderburn, you must have something to say on this. Well, yes. The architects, the RIS, were in favour of option 3, again for certainty to give the people that are likely to be in the frame. And it not only does it then allow people to make provision, but it does mean that the insurance industry, PII cover, is a little more certain, because at the moment you have to insurance companies are the risks associated with potential claim are much broader and indeterminate. And I think this would allow, especially once an action is commenced and people have discovered who the identity of the relevant people is, then other parts of the team can get on with their lives and they can notify their insurers, which is a benefit. Okay, Dr Simpson. Yes, again I agree with option 3. I would just add that I think Dr Russell is absolutely right to draw attention to the fact that this is fair within the scheme of the bill as a whole, because of course what we're seeing in section 11, 3 as proposed to be amended, is a sort of exception to the more general principle that an obligation becomes enforceable, an obligation to pay damages becomes enforceable on the date when the loss ends. And what we see in 11, 3 is an exception that is saying that knowledge is relevant where the tests would be satisfied, the three limit tests that the Scottish Law Commission proposes. It's also worth mentioning and emphasising that creditors have to exercise reasonable diligence in trying to work out whether they've had this knowledge or not. We're not just asking would the creditor have had knowledge that loss, injury or damage has occurred, loss, injury or damage was caused by a person's actor mission and the identity of the person. We're asking did the creditor exercise reasonable diligence, would someone who had exercised reasonable diligence have known these things? That is what causes the prescription to run in relation to obligations to pay damages. In some ways, it's quite a limited exception to a general rule that knowledge is not relevant across the board to start prescription running. It provides an exception that respects fairness. Have you got any follow-ups on that? That does take me into the next question. Certainly the faculty of advocates expressed concerns, including that the new wording might increase litigation on the meaning of the words in particular amendment. They just wanted to have any thoughts on the faculty of advocates concerns about this. Should we say what wording we're referring to? It's in sections 5, 2 and 3 of the bill to introduce the drafting change compared to the 1973 act. It specifically would change reference to an act, neglect or default by defender to an act or omission of the defender. I'm aware that the faculty of advocates has expressed concern about this proposed change from the terminology act, neglect or default to act or omission and that there's been some concern about how omissions might be interpreted. I think that it's useful to point out that the terminology of act or omission is already found elsewhere in the act. It appears in relation to the limitation provisions in relation to personal injury, which I've referred to already. Time runs from the date of injury or in the case of a continuing act or omission from the date on which it ceased. The act or omission ceased. This is not going to create any new problem. The courts are familiar with dealing with acts or omissions. There are cases just to name one, Kennedy and Steinberg, a medical negligence case, where what was the issue was an on-going omission of a doctor to take a patient off a drug. This is nothing new, this terminology, act or omission, and I think it would introduce a degree of symmetry and consistency across the prescription and limitation provisions. I do accept that the courts are familiar with the terminology of act, neglect or default, but I think that increasing consistency can only be a good thing. You're all nodding. Can I just put something to you? Let's say that you used Dr Russell as an example of the cases in the construction industry. Let's say, for example, that foundations are not put in properly and some years later they start to sink or it all goes wrong. You could argue that that is neglect, but it might not be an omission, which in layman's terms is just forgetting to do something or just not doing something. Doing something wrong is different to an omission, is it not? I think that that's something that the courts would just have to address in a case-by-case basis, to be honest. I don't know if any other panellists have a good idea. Certainly when, as an inspecting architect, it's what you miss, that's regarded as neglect, but it is an omission to see things. Would you easily be picked up by that wording? That would be my feeling as well, that the wording is actually slightly broader potentially than the wording that we've seen act, neglect or default. So I think that it would catch that as what you're describing as being essentially an omission to observe proper standards. So legally it's not an issue? I don't think so. Certainly Dr Simpson, in your earlier comments you mentioned the issue of the loss, injury or damage as a curtain. This is something that was picked up by the Law Society in their submission. The first requirement in the test set out in section 5 is that the loss injury or damage has occurred, and its submission Law Society identifies the potential uncertainty in relation to this requirement. In particular it says that it is unclear whether this requirement would be treated as satisfied when there has been expenditure and professional fees. But not at the same time an awareness that this can be constituted as a loss, it refers to the case of Gordon v Campbell in this regard. Do you agree with the Law Society that this is a potential issue and is there a need for greater clarity on the face of the bill? I'm not convinced that there's a need for greater clarity on the face of the bill to be honest. The Scottish Law Commission has looked at the Gordon case. It did look at it before the decision was handed down by the UK Supreme Court on the appeal, and it's expressly mentioned that it can't take that into account. The appeal, of course, upheld the decision of the extra division of the Court of Session for broadly the same reasons. On one level it looks likely that the problem will be dealt with, as the Scottish Law Commission thought by the insertion of that wording. The only slight caveat that I would add is that, in the Gordon v Campbell case, the key questions—obviously we preserved the test that was used in that case that loss of injury or damage has occurred, so that's the first thing that is preserved in the revised wording of subsection 3A. The key question, if the case were to be decided again today, would be whether or not the trustees in that case, the pursuers who were making the claim, had also the sufficient awareness that the loss injury or damage was caused by a person's actor omission in late 2005 when the claim started to run. I'm not sure how familiar the members of the committee are with the sort of detailed facts of the case, so if it would be helpful I could say a little bit about that. Briefly that would be useful. That's fine. Essentially in this case what happened was a defective notice to quit certain agricultural land had been served on tenants. The notice was served, I think, in November 2004, and the tenants then refused to get out in November 2005. It was argued that the trustees, the pursuers in this case, the trustees who owned the land that was tenanted, had knowledge of the loss when they knew that the tenants would not voluntarily seed the fields, but the tenants wouldn't voluntarily hand over. What happened next was that using different solicitors, and this is the important part of the case, the trustees, the pursuers in the case, then raised an action in the land court to try to get the tenants removed on the basis of the defective notices, and in 2008 the land court held that the notices couldn't be used, the notices were indeed defective. Court proceedings commenced in May 2012. You can see the importance of the question. If prescription started to run when the tenants refused to get out in November 2005, then the five-year period would have elapsed by 2012. However, if prescription only started to run in 2008 when the land court handed down its decision that the notices were indeed defective, then there was still an opportunity to enforce the claim in 2012. That was the nub of the issue here. The problem was when did the trustees become aware that there was loss on the law as reformulated in the earlier decision. The trustees became held at all levels of the decision. At first instance, the extra division of the inner house and then the UK Supreme Court held, the trustees became aware of the loss in 2005. That meant that then it followed, that the claim had proscribed. However, it was felt that this was potentially rather harsh because they argued that they only became aware of the loss when the land court handed down its decision that they had sustained loss when the land court handed down its decision to the effect that the tenants could not be removed on the basis of these defective notices. The question for the court was when did they become aware of loss. Now the question for the court would be when did they become aware of loss, when did they become aware that the loss injury or damage was caused by a person's actor emission and when did they become aware of the identity of the person. On the facts of the case, the Scottish Law Commission believes—and I think that there is good reason for believing—that the trustees would not have become aware that the loss injury or damage was caused by a person's actor emission until 2008 or at least until a later period. Lord Hodge is a little bit careful in his comments on this. He just said that there is reform being considered by the Scottish Parliament. Lord Hodge delivered the judgment in the UK Supreme Court. I think that there is an argument to the effect that the second limb would have saved the trustees in Gordon against Riddle, but it's an argument. I think that one has to be conscious that there was other evidence led in the case and it might be argued on some of that evidence that the pursuers could have been aware that the loss injury or damage was caused by a person's actor emission that they weren't just aware from 2005 that there was loss. They might also have been aware from 2005 that it was caused by someone that they could identify. It's possible that the pursuer might not have been saved in Gordon, but the extra tests improve the fairness of the law overall. I would still defend it, but I would be a little bit careful in just saying the whole sale that the pursuer would have been saved. Probably he would have been, but as the SLC says, but just caveat it a little bit. Anyone else on this? Dr Simpson has covered it very comprehensively. I'm sitting in my final area of questioning. Some of this has been touched upon earlier. It's in the written submission from the Law Society, comments on the third part of the new test set out in section 5, namely that the pursuer must know the identity of the defender or defenders. The Law Society makes two points. Firstly, it says that with complex contractual or corporate structures, it can sometimes be difficult to identify the correct defender and mistakes can be made. It questions whether the prescriptive period would only start to run from the point that the correct defender is identified. Secondly, the Law Society raises the possibility that different prescriptive periods might run for different defenders if the pursuer becomes aware of the identity of one defender before another. Do you wish to comment on both of those points? Is there a need for a good clarity about those issues on the face of the bill? In relation to a situation in which you have more than one defender, co-debtors, I think that it's a natural consequence of the unformulated wording in section 5 that there is the possibility of separate prescriptive periods against debtor 1, debtor 2, debtor 3, according to when the awareness of the identity of that person became known constructively. I think that there is a possibility of a different terminus, a different starting date, in respect of the different obligations that are owed by each debtor. As far as identifying the wrong defender is concerned, then obviously time isn't going to run in relation to the obligation that is owed by the right defender unless the constructive awareness provision could be engaged. Some reference was made to this earlier. If the creditor ought to have become aware of the correct defender, the correct debtor, then time will start to run because awareness includes both actual awareness and constructive awareness. If the correct defender ought to have been identified, time will run as long as that awareness could have been acquired by the use of reasonable diligence to which Dr Simpson has made reference already. In the construction industry, with the multiplicity of subcontractors doing different things at different times, there is a great likelihood of there being different prescriptive periods and of only becoming aware later on of particular actions of particular sub-sub-subcontractors. If you had people who are jointly and severally liable, how would that work when you were identifying them? You might identify them at different periods but they could end up being jointly liable? Presumably, if you identified the defender who is jointly and severally liable, you would sue that defender and then the rights of the people who could have been co-defenders. I would be very happy if the committee would like to check on this further but I would imagine that what would happen would be that their rights would then start to operate as it were, their rights of recovery against the defender. Then they would be subject to the same rules of prescription. Even if they weren't perhaps involved in the neglect but they were just liable because they were financially linked? I would need to think about the basis of their liability then. If they are not liable because of their neglect perhaps we would need to think further about the basis of their neglect in each individual case. The point about joint and several liability is extremely interesting. However, I don't think any of the provisions in the bill would be undermined by it but it would be interesting to see exactly what the effects would be. I wouldn't want to speculate too much on that myself but I'd be very happy to look at that further if that would be the case. If you want to write to us afterwards with further thoughts then feel free to do so. David Bowie. Good morning, panel. All my questions will be in section 8 of the bill in 20-year prescription. For obligation to pay damages, section 8 of the bill proposes a new start date for 20-year prescription. Can you explain whether or not you support section 8 in policy terms and what the reasons are for your position? Shall I just pick on someone? Dr Russell. I'm happy to support the proposal in section 8 of the bill. The purpose of the long negative prescription is to produce a long stop, which is designed to secure certainty and finality. A certain stage, a potential defender can dispose of his files, he can dispense with his records and he can rest assure that he has no longer at risk of civil litigation. Our current rules on the long negative prescription and setting the starting date as at the date of loss are rather unusual. It's quite unusual that the starting date, the terminus for the long negative prescription is the same as for the short negative prescription. More usually you will find that there is a difference. The proposal in the bill is obviously to take the starting date for the long negative prescription back to the date of the act of remission in question, which in most cases is going to be earlier and quite often particularly in construction matters will be significantly earlier. In one of the previous evidence sessions, one of the witnesses spoke of a situation where you may have a defective design leading to loss many, many years later, maybe 16 years later. Under the current law, the 20-year prescriptive period will not start running until the date of loss, which will be 16 years after the date of the act of remission. The bill's proposal is to take the starting date for the long negative prescription back to the date of the act or remission. That obviously would mean that the designer in the hypothetical example that I gave you would be three of the obligation sooner. That might be considered to be harsh to the creditor, but I think that one has to consider the overall scheme and fairness to all parties overall, and the basic underlying rationale for the long negative prescription, which is to secure certainty and finality, that there must be a final cut-off period so that we're not having people sued 36, 37, 38 years down the line. The RIS, particularly pleased with this proposal, because I know personally of at least two or three examples. For example, one where a building was constructed in about 1981, and either the architect or the contractor, we don't know from it, omitted some tanking, but the building was well drained round about and the water table never raised. In 2015, we had terrible weather, it finally raised and it flooded. Now that trying to track down the contractor had gone out of business and everyone had died, the architect equally. The owner had a right, but he could never vindicate it and it was a kind of pointless right. So I feel having a long stop, that's a real long stop, has a starting point and has a clear end point. I think the idea of not having interruption is another good idea. To protect people who have commenced proceedings before the end, their rights are still preserved. I think that that's a good balance. Dr Simpson? Thank you. I have very little to add to any of that other than to say that I agree with what both my colleagues have said. Again, the underlying policy, both for this and for section 7, which we may be going on to talk about, I don't know. Again, the underlying policy that we need to have certainty and we need to deal with the situation where there's destruction of evidence. It just happens after a certain period of time. It's important to have a long stop date and it's better to have a clear long stop date in the legislation. I think that they get the balance right in the proposals and then the bill is correct. For section 8 of the bill, some concerns have been expressed by stakeholders, including the law society and the faculty of advocates, about how it would work in relation to admissions to act and on-going breaches. The SLC says in Oreo evidence to a committee that a language used in section 8 would be familiar to a course from another part of the 1973 act and so it could not see any difficulty here. Do you wish to on offer a view on this topic? Anyone want to offer a view? If you don't want to, you don't have to. I would just repeat what I said earlier, which is that the terminology of act or omission is familiar to the courts already. It already appears in section 17 of the Prescription of Limitations Scotland Act in relation to the limitation provisions, the trienium for personal injury actions. So it's nothing new, it's nothing with which the courts haven't previously grappled and I'm sure they'll be able to deal with it adequately under this proposal. Okay, thank you. The committee is aware of a parliamentary petition which provides an example of a situation where 20-year prescription has operated harshly. The petitioner tried to sue a solicitor for defective conveyance in work, only to discover that the obligation to pay damages had been extinguished by a 20-year prescription. A new start date proposal in section 8 will be early in some cases and the current law and never later. Is there a risk with section 8 that we could see more harsh cases like this one? If so, does that affect the policy underpinning in section 8? There are dangers, of course, around the long prescription. I'm not familiar with the case that you're mentioning, so obviously I should say that at the outset. Ultimately, in the interests of certainty, which has to be the underlying policy of any regime of prescription, there has to be a cut-off point. I think that the issue that you're raising is the issue that basically there was an error made in convincing at a very early stage and that this error hasn't been detected over the whole, over maybe 20 or 20 or more years. In that case, this is one of the genuinely hard cases that's generated by any doctrine of prescription and it's very regrettable. In the interests of having certainty, which is a valid concern for the legal system as well, it is worth saying that there just has to be a long stop and that's just it. The case that you're referring to is the case of Mr Hugh Patterson. I'm afraid not. It doesn't really bells with you. You're nodding Dr Russell. Yes, I've heard about Mr Patterson's petition. I don't know a great deal of detail about it, but I think that the problem essentially was that there was a problem with the convincing that Mr Patterson did not discover about this error until more than 20 years later. Because the issue of awareness is not relevant to the running of the long negative prescription, he has found himself on the wrong side, if you like, of the prescription provisions. Undoubtedly we would all have sympathy for Mr Patterson, but it would simply have to be categorised as a hard case and as we know hard cases make bad law. The whole thinking behind the long negative prescription is that it should not be subject to personal matters affecting a particular creditor. That's why the matters of fraud and error don't apply in relation to the long negative prescription. That's why matters of legal disability don't stop the long negative prescription running. It is designed to be a long stop. Wherever we draw the line, there will be hard cases. Even if you were to return to the days of the 40-year long negative prescription, conceivably you could still have people falling foul of that if they buy a house at age 25. There's a problem with the convincing. They don't sell it until they're 70, while they're still going to find themselves on the wrong side of the line. I think that the interests of certainty and finality have to prevail. That's the underlying rationale of the long negative prescription. It does represent a final, determinate cut-off and sadly some people will find themselves at the wrong side of that line. I guess the point is that you either have no cut-off or you have a cut-off and you've just got to decide what it is. Yes, exactly. It is considered to be in the wider public interest that we do have finality in relation to the existence of obligations. The courts shouldn't be clogged up with trying to deal with antiquated claims where all the evidence has been lost and all the witnesses have died or forgotten what's gone on. We've had this discussion before in the Scottish legal tradition. That shouldn't constrain this debate in any way. Fundamentally, what motivated the introduction of ever-wider adoptions of extinctive prescription was this issue around destruction of evidence over a period of time. I'm pretty sure of that for some of my own work. It's destruction of evidence is key and given that evidence is often lost over a long period of time, as Dr Russell rightly said, originally the period was set at 40 years. It's now been reduced some time ago to 20 years. Again, where one sets the period, one could set the period at 21 years, one could set the period at 19 years. I'm not suggesting that one should change the period at all for a moment, but there is a certain arbitrary analysis of where one sets it. The idea that there is a firm cut-off point is extremely important. Bill Bowman. I have two questions on interruptions and extensions to the 20-year prescription in section 6. Section 6 of the bill says that 20-year prescription will no longer be able to be interrupted but can be extended only to allow on-going litigation or other proceedings to finish. For the benefit of the record, what are your views on this section of the bill? I wholeheartedly support the proposals in the bill. I share the view of both the Law Society of Scotland and the Faculty of Advocates that interruptions to the long negative prescription by way of relevant claim or relevant acknowledgement should not be permissible. In my view, they are simply inconsistent with the concept of a long-stop prescription. In relation to the possibility of extension, I think that that does make sense if someone were to raise proceedings 19 years down the line, clearly such a person has not abandoned his right. Prescription is often referred to as being the abandonment of rights. If somebody is currently in the process of litigation, he's clearly not abandoning or sleeping on his rights and I think it's only correct that the proceedings should be allowed to finish. I agree with everything that Dr Russell said about the need for the introduction of the bill. It's a long stop to be consistent with the underlying policy, which is to bring about certainty. I think that that is sound. I agree also and make further point in relation to professional indemnity insurance that you have a period as a retiring architect. You can then know which ones are at risk and when they'll expire and therefore arrange a run-off cover. The second question. In its response to the SLC discussion paper, Brody's said that the 20-year period should still be able to be interrupted but should restart not from the beginning but from where it left off in the first place. As the only alternative mentioned by stakeholders to section 6 of the bill other than the current law, do you would like to comment on that suggestion? Yes, I believe that Brody's concern was that rights might prescribe during litigation and obviously that's now been dealt with by the extension provision, the only situation where the long negative prescription can be extended is to allow existing proceedings to come to a conclusion. My understanding is that Brody's are now content with what appears in the bill. The second question is about section 7. That says that the 20-year prescription, which applies to certain property rights, will no longer be able to be interrupted but can be extended only to allow on-going litigation to finish. Although that mirrors the approach in section 6 for personal rights, the faculty has suggested that the approach in section 7 would not work well for property rights like servitudes, so do you agree with that? If so, are there any alternative approaches that might work better? I should say that I haven't read all of the faculty's commentary on that at the outset. With respect to that, what I'm saying is not informed by that commentary. However, I was very happy with that and I'm aware that servitude rights, such as rights of access constituted by one property in favour of another, are subject to the long, extinct of prescription. I can't, as such, see a problem with that under those provisions. I'm very happy that it should be subject to this long stop for the sake of certainty. If the committee wanted me to look at contacting any way about joint and several liability, I'd be very happy in an email to write a comment relating to that, given that I'm not familiar with the faculty's commentary. That's fair enough. Mr Wedderburn, any thoughts on that one? No, nothing to that. I thought you might have done. I have read what the faculty of advocates has said here and what Mr Howie said in his evidence session before the committee. I have to agree with what was said and in particular what was said in the written submission that the faculty submitted. It does seem anomalous that, if somebody litigates about a right of servitude, which that person hasn't exercised for 19 years, it should prescribe after the 20-year period has elapsed in conclusion of the proceedings. I think that that's something that could usefully be revisited. I've got some questions on standstill agreements during section 13. When the SLC proposed the general possibility of being able to contract out of prescription, they got a mixed response. So section 13 of the bill contains a narrow proposal, which would allow a single extension to the five-year period via a one-year standstill agreement. Section 13 also says that contract to remove or shorten a statutory period of prescription would be invalid. Are the proposals in section 13 of the bill, including permitting one-year standstill agreements, something that you can support? It would be helpful if you could explain the reasons for your views. I'm happy to support the proposal that standstill agreements be permitted. I think that they will help to facilitate investigation and settlement of claims. Obviously, it's in everyone's best interests to avoid the need for an adversarial litigation. There is obviously the fear that such agreements could be abused and used as a delaying tactic in essence. For that reason, I think that the very important safeguards inserted in the bill should be there. In other words, a standstill agreement or an agreement to delay the running of the prescriptive period can't be entered into in advance. It can only be entered into once the prescriptive period has started to run. In other words, once a dispute has arisen, it should be subject to a time limit one year is proposed in the bill. I would support that. That seems reasonable to me, and it should be possible to utilise the provision only once. I would agree with what the faculty of advocates have said that such agreements should be a requirement that they are entered into in writing. I think that that's a very sensible proposal and one that I would endorse. There is a place for standstill agreements, but we have to be careful that they are not abused. I think that the safeguards are in the bill to prevent that. Because it's an agreement, both sides have to agree. Absolutely. Dr Simpson. I would also agree with that last caveat about the agreement being in writing. I think that makes an awful lot of sense. Again, I have no problem with those standstill agreements. I think that it's quite clear from the Scots Law Commission report that there's the possibility that people may try to achieve this end through various devices in any way in practice. What this is doing is providing a mechanism whereby this is definitely possible and therefore it promotes legal certainty. Again, I would endorse this approach quite happily. Yes, so would I. Especially in the construction industry, there's often contracts of unequal power. I'd like the safeguards here because if you had it without the safeguards, the powerful part of the contract would set in and start extending the prescriptive period without restrictions. I think these safeguards lead to fairness. Can you explain that a bit further? Yes, because you can only start at once, you can only consider entering into them once there is a dispute in place, then you can't set it up in your original contract. Because it's only one year and it can only be done once, you can't have it being extended, which would be another temptation for the more powerful contracting party. A question on section 14 of the bill, which would introduce an explicit statement in legislation that, when there is a question about whether a right or obligation has been extinguished by prescription, the burden of proof lies with a pursuer. What are your views on this proposed change? I'm very happy to endorse this proposal. The current law is uncertain and there are conflicting dicta as to whether the pursuer or defender bears the burden of proof. In the case of the stratified regional council in Fairhurst, the court said that the defender bears the burden of proof, whereas there are other cases such as pelagic freezing and lovely construction and Richardson and Quercus, where the court took a different view and said that the pursuer bears the burden of proof. So there is some uncertainty and it is perhaps surprising that the 1973 act didn't address this issue and make specific provision on it. I think the court of session judges have actually said that that was a somewhat surprising omission that it wasn't provided for in the 73 act. Sometimes it's said that the person who makes an affirmative statement bears the onus of proof, but that is problematic because obviously it would depend on how pleadings were framed. A pursuer could say that my right subsists, which is obviously an affirmative statement, but a pursuer could equally say that your obligation to me has not prescribed, which is a negative statement. That proposition takes us no further forward. I think that we need statutory clarification of where the burden rests. I think that the proposal in the bill is to place it on the creditor. It's important that that terminology of creditor is used rather than the terminology of pursuer, because obviously the question of onus of proof could arise in a counterclaim. In a counterclaim, the creditor is obviously going to be the defender in the main action. That's why the bill says that the burden of proof should rest on the creditor and I would endorse that proposal. I think that it makes perfect sense. I would not suggest or endorse any suggestion that the burden should vary depending on whether you're dealing with a two-year prescriptive period, five-year prescriptive period, ten-year prescriptive period or 20-year prescriptive period. I think that a uniform approach should be taken and I think that the approach taken in the bill is eminently sensible. I completely agree that it's very important that we have some clarity on this. The Scourge Law Commission set out options one, two and three. The burden should be on the creditor or the debtor or switch. The first step is that we definitely need some clarity and I think that this is an excellent opportunity to provide that. As regards where the burden of proof should lie, I also think that while I respected the view and I could see some merit to the view that there should be a switch, which was one of the respondents, I'm not, for the reasons given by Dr Russell, I'm not convinced of it. When I saw this, I was originally unsure as to whether the burden should be on the pursuer or the defender, I'll be honest. I found some of the reasoning that Morton Fraser gave in the response to the Scourge Law Commission discussion paper quite interesting in that regard. It seems unfair that a defender should be allowed to assert a defence that an action is prescribed and then sit back and leave the pursuer to prove that this is not the case. Of course, the language of creditor and debtor does, to some extent, help to address that. Certainly, the matter has clearly become a bit of a moot point in the courts and I think probably the Senators of the College of Justice came down to the view that one or two or three needs to be implemented. On balance, I'm not terribly sure whether I would go with option one or two, but there's a proponent of opinion in favour of option one now. A little to add other than that I think it's essential to have some clarity which the act brings and choosing the creditor is an appropriate person for burden of proof. Members have any other questions? Any other witnesses? Do you have anything else that you wish to add that we may not have covered? I would like to point out that the bill proposes a reformulation of the fraud and error provision in section 64A of the 1973 act and I think it might have been appropriate for the bill also to address the issue of section 64B of the 1973 act which relates to legal disability. Legal disability has the effect of stopping the short negative prescription from running, but it has no impact on the running of the long negative prescription. Legal disability is defined in the act in section 15 subsection 1 as non-age and unsoundness of mind. You'll probably be aware that the Scottish Law Commission produced a discussion paper on personal injury limitation and prescribed claims in 2006, which was then followed by a report in 2007. The Scottish Law Commission at that time was highly critical of the terminology of unsoundness of mind and took the view that it was very outdated language. The Scottish Government then conducted a consultation process and agreed with what the Scottish Law Commission had said about this being an outdated type of terminology and that the terminology unsoundness of mind was potentially insulting. I would endorse that and I think that the opportunity could have been taken here to update the language along the lines that had previously been proposed by the Scottish Law Commission to the effect that legal disability be defined as somebody who is incapable within the terms of the Adults within Capacity Scotland Act of 2000. I do think that in Scotland in 2018 we shouldn't have language like unsoundness of mind appearing in statutory provisions and I think the opportunity could have been taken here just to tidy that up given that we're also seeing slight changes to definition in terms of relevant claim to include claims in receivership and administration. An updating here would have been appropriate, I think. I'd certainly be happy to agree that it's worth visiting the language. Changing the language actually changes the meaning or the impact of that clause. The term unsoundness of mind is considered to be insulting and offensive and I don't think that it has any place in this day and age. The other way that you said. Yes, there is section 16 of the Adults within Capacity Scotland Act. I think that it would be a much more useful test to use. Is it a different test is really what I'm getting at? Would it change? No, it's really a change of language. I think that the language that's currently employed in the act is frankly insulting and offensive. It certainly has a potential to cause offence. Sorry, what was the new wording you were suggesting? Somebody being incapable within the terms of section 1 subsection 6 of the Adults within Capacity Scotland Act 2000. That proposal does appear in the 2007 report of the Scottish Law Commission. It's just a matter of terminology rather than a matter of substance to take up Mr Bowman's point. The terminology is just not appropriate in the modern world. That's fine, that's very useful. We're here to consider potential amendments so that's our job and that's what you're here for is to help us with that. Any further comments or questions? Thank you all for your time. I think that it's been a very interesting session. I can also thank you for the language you've used which has been easy to follow. Some of the examples you've used have been very useful as well. I'll suspend the session to allow you to leave. Thank you once again.