02 Oct 2014

Case Comment: David T Morrison & Co. Ltd t/a Gael Home Interiors v ICL Plastics Limited and Others

Case Comment: David T Morrison & Co. Ltd t/a Gael Home Interiors v ICL Plastics Limited and Others

Paul McIntosh, Associate, comments on a recent decision in the case of David T Morrison & Co. Ltd t/a Gael Home Interiors v ICL Plastics Limited and Others.

Paul McIntosh, Associate, comments on a recent decision in the case of David T Morrison & Co. Ltd t/a Gael Home Interiors v ICL Plastics Limited and Others.

A recent split decision the Supreme Court has confirmed that the prescriptive period for a claim commences at the point when the creditor is aware of loss. The case of David T Morrison & Co. Ltd t/a Gael Home Interiors v ICL Plastics Limited and Others highlighted the period begins regardless of whether the creditor was aware that the loss had been caused by an act; neglect; or default.

The decision focused on the correct interpretation of Section 11(3) of the Prescription and Limitation (Scotland) Act 1973. The act states “[if]the creditor was not aware, and could not with reasonable diligence have been aware, that loss, injury or damage caused as aforesaid had occurred” the prescriptive period would not commence until “the creditor first became, or could with reasonable diligence have become, so aware” of the loss; injury; or damage incurred.  The wording “caused as aforesaid” links back to the previous sections of the act which state that the loss has been “caused by an act, neglect or default”

The majority opinion determined that the present wording of the Act merely required knowledge of the loss suffered, and that a further qualification as to the cause of that loss was not to be read into the existing wording.

The result in this action deprived a party of a claim. They had been aware of their loss for the relevant prescriptive period but lacked knowledge of the cause of the loss and the identity of the relevant party to sue until it was too late.

For the time being, it would be well advised to make early investigations if you are aware that you have suffered a loss or you could risk losing the right to pursue a claim before the culprit is ever identified.

The dissenting opinions of Lord Hodge and Toulson both note that this is an area of law which is ripe for review and urge that the matter be given further consideration.

Paul McIntosh, Associate


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