On appeal from: [2013] CSIH 19

The respondent began the present proceedings in 2009, seeking damages against ICL on the basis that the damage to its shop was caused by ICL’s negligence, nuisance and breach of duty. Under the Prescription and Limitation (Scotland) 1973 Act, s 6, an obligation to make reparation was extinguished through the operation of prescription if a claim had not been made or the subsistence of the obligation not acknowledged within five years of the relevant obligation having become enforceable. S 11(3) of the Act postponed the date from which the prescriptive period begins to run where “the creditor was not aware, and could not with reasonable diligence have been aware, that loss, injury or damage caused as aforesaid had occurred” until a later date. The issue before the Court was whether the respondent was not aware, and could not with reasonable diligence have been aware, that the damage had been caused by the breach of a duty owed to him.

Held, inter alia, and by a majority: properly construed, s 11(3) was concerned with latent damage. This was consistent with a natural reading of the provision in its context. If the draftsman had intended to require awareness that the loss had been caused by an actionable breach of duty, before the prescriptive period began to run, then he would have made this clearer, as he had done elsewhere in the Act in relation to the limitation period.

For judgment, please download: [2014] UKSC 48
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