Prescription (Scotland) Bill: Stage 1 Report

 

CLICK ABOVE TO READ. The report by the Delegated Powers and Law Reform Committee on subordinate legislation considered by the Committee on 12 June 2018.

GLC made a significant contribution to the report by the Delegated Powers and Law Reform Committee The Committee’s Stage 1 inquiry: Prescription (Scotland) Bill.

This stage 1 report is excellent, balanced and very progressive.

As the report states “However Govan Law Centre qualified their welcome. Mike Dailly said, “The bill is welcome and I think that it does good things but it could do a lot more good things if only the committee could suggest some amendments.”

The law in this area needs modernised. It is over half a century old.   The committee noted the points raised by  Govan Law Centre, particularly in regard to the recovery of council tax debts. A number of our other points are considered and given recognition.

In simple terms this law establishes a time limit within which a person must raise a claim in court. If the time limit is missed, you are generally barred from suing someone. Scots law encourages people to enforce their rights promptly.  Claims made after a long period of time become difficult for the person or organisation defending the claim to gather the appropriate evidence.

Delay can cause the quality of evidence to deteriorate. Vital documents can get lost. Witnesses may have died, be untraceable or, even if they are found and they may struggle able to remember what happened.

GLC QUOTES IN THE REPORT

The report states: “Mike Dailly (Govan Law Centre) agreed with the Law Society that a twenty year prescription period for council tax was “unfair”. He said that the position in
Scotland should equate with the six-year period in England and Wales and offered a
compromise position whereby the statutory obligations proposed to be excepted
should be subject to five year prescription with an exceptional circumstances test to
establish whether there had been deliberate behaviour on behalf of the debtor to
create delay in enforcing the debt.

However, he said that: The ideal situation would be a five-year prescription for everything. If we are not going to have that, it cannot be right to have exceptions for 20 years for all
the different categories, because that will not fulfil the Scottish Government’s
aim of achieving simplicity, fairness and clarity.”

“Mike Dailly (Govan Law Centre) provided an example where the twenty year period
affects someone collecting their state pension for the first time but discovers that it
is less than anticipated: because there has been a deduction for overpayment of benefit many years previously, or for repayment of a social fund loan. Many people cannot
remember having claimed the benefit; they had claimed it for a short time and
then got into work and worked all the way to retirement age. In the meantime,
the overpayment or social fund loan was festering away and not being dealt
with. He said the issue was one of fairness:

However, the DWP have a number of other ways of recovering social security
overpayments, such as deducting from ongoing entitlement. The six year limitation period does not apply to these forms of recovery. Because there is no principle of prescription in English law, the DWP can recover using these methods forever. In Scotland, the DWP has 20 years to start deductions from benefits. However, it can probably continue ongoing deductions forever.”

Mike Dailly said: “If somebody who receives social security benefits thinks that they have
suffered an injustice […] they normally have a month to seek a mandatory
reconsideration […]. The UK social security system is utterly geared towards a
fairly restrictive position, whereby people have very little time to challenge
anything. However, in the bill we are providing for a 20-year prescription period
when it comes to reserved benefits. This is completely unfair and
inequitable.

“Mike Dailly (Govan Law Centre) questioned whether the objective of
balancing the needs of pursuers and defenders in the Bill was necessary: “When
you drill down, it is about equity.” xc He considered that section 6, which prevents
the twenty year period from being interrupted, would be sufficient.

Mike Dailly suggested that the solution to harsh cases involving solicitors in
conveyancing cases would be for the Law Society to introduce a system of strict
liability.He advised the Committee that the Scottish Government had commissioned a review of the legal profession. “Strict liability”, Mike Dailly suggested, “is long overdue”.

He recognised that the Scottish Parliament cannot legislate for areas reserved to
the UK Parliament but said that “we should maximise what we can do with the
powers that we have to bring about uniformity in prescription.”

As reported here – Mike Dailly, GLC solcitor advocate, gave evidence on the Prescription (Scotland) Bill back in April. The Scottish Parliament official report is here You can watch the full session online: here

Mike was giving evidence on behalf of GLC, along with Mike Holmyard of Citizens Advice Scotland.

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