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Philip Britton's avatar

What a fertile topic! English law - and Scots law too - have got their judicial knickers in a real twist about adding extra potential time to the normal fixed limitation period, not to penalise a plaintiff/claimant/pursuer whose cause of action 'accrued' (so time started to run) before they were or could reasonably been aware of a possible claim. Symptoms which present themselves years later (cracks in the walls) of inadequate foundations in a building is the classic example, or physical symptoms long after - but provably caused by - negligent medical treatment. How to devise a test which defines how much knowledge (and, equally importantly, its significance and how a reasonable person ought to react: "I'd better get a surveyor to look at this right away") starts extra time running in order to mobilise towards litigation: astonishingly difficult.

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Philip Britton's avatar

I am fascinated by the apparent distinction between common law systems, where - as you say - time running out bars civil legal action, and systems derived from, or influenced by, Roman law. So Scots law, as well as the idea of limitation, also has the idea of prescription, where after five years (in the standard civil action), the obligation to provide reparation itself comes to an end. I suspect that in practical terms, it means that judges will of their own motion stop an action which is already prescribed, not relying on the defender to raise this as a defence. But conceptually?

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