“The best thing about the future”, as Abraham Lincoln saw it, “is that it comes one day at a time”.

However, claimants may lose rights to claim by the passage of time. In certain Scottish property damage and professional negligence claims, claimants may lose rights to claim quicker than in England. Scottish claimants also have more restricted options than their English counterparts when trying to “contract out” of the system by which their rights are lost.

The Scottish system of “prescription” extinguishes many rights to claim for property damage and professional negligence after five years. The equivalent English system of “limitation” means such rights to claim are lost after six years.

English claimants can agree with those they are claiming against to “stop the clock” by entering into written “standstill” agreements, suspending the running of the limitation period for an agreed time. Alternatively, agreements may be entered into in England to fix a later date than the end of the six-year period for the right to claim to be lost. More than one suspension or extension agreement may be entered into in England for the same claim and there are no limits on suspension or extension periods.

For Scottish claimants, options to interfere with the five-year period are restricted to agreeing with the other party to extend the period by no more than one year and with only one extension agreement allowed. So, “standstill”, by suspending the running of the Scottish period is not possible.

The impact of these restrictions in Scotland can be exacerbated by the fact that the two sides may not agree on the original starting date of the five-year period. Calculation of the original starting date can be especially complex when damage is not immediately apparent upon the alleged negligence and where there is dispute on when loss was sustained.

If “standstill”, by suspension was possible in Scotland, such disagreements could be put to one side at the time a standstill agreement was entered into. With standstill, parties are agreeing whatever the position is at one point in time, that will be the same position at a later point in time. Putting it another way, the agreed period of suspension will be ignored should the matter later need to be determined by the court.

Extension, on the other hand, especially extension by no more than one year, relies on the parties agreeing on the original starting point. This is because what has happened before is relevant to whether there is a live claim that may be extended into the future, and from when, if the permitted extension is to be maximised.

The Scottish system of ‘prescription’ extinguishes many rights to claim for property damage and professional negligence after five years

Another difference between Scotland and England is that variation agreements have been competent in England for some time. In contrast, in Scotland, extension agreements have only been permitted from 1 June last year.

The way to stop a prescription or limitation period running, other than by standstill agreement where allowed, is to raise and serve a court action. The benefit of allowing variation agreements is for parties to have more time to resolve disputes without incurring increased expense. Given the restrictions on Scottish variation agreements, this benefit is probably more easily realised in England. Further, because variation agreements are still relatively novel and untested in Scotland, the “safety first” approach for a cautious claimant ought still to be to raise and serve a court action timeously to prevent a claim from time-barring.

Time-bars for claims are more of a problem in Scotland than England - Sarah Crewes