The Supreme Court handed down judgement today in the case of Gordon’s Inter Vivos Trustees v Campbell Riddell Breeze Paterson LLP, [2017] UKSC 75.  The decision has particular significance for damages claims founding on the alleged negligence of professional advisers, and there have been a several cases sisted pending the outcome of the appeal to the Supreme Court.

The case follows on from an earlier decision of the Supreme Court in David Morrison & Co Ltd  v ICL Plastics Ltd, 2014 SC (UKSC) 222, which concerned damage to a building caused by the fatal  explosion at the Stockline factory in Maryhill.  The Supreme Court has decided in Gordon’s Inter Vivos Trustees that a person does not need to have actual or constructive knowledge of having suffered a loss, injury or damage for the five year prescriptive period to start operating.  As the Supreme Court states in its judgement, this approach is harsh where a person has incurred expenditure which turns out to be wasted or fails to achieve its purpose, because the circumstances when the prescriptive period begins to run may not prompt any inquiry into a loss without the benefit of hindsight.  Whilst the Scottish Government has proposed to include reform of the law of prescription as part of its legislative programme, this will not assist clients who are faced with a ticking clock without the knowledge of that clock’s existence. 

The decision is likely to lead to a significant increase in speculative protective negligence actions being raised (and immediately sisted) against professional advisers and others at the first suggestion that there may be a problem, just in case there is any risk that the underlying explanation for what has happened is that someone, somewhere, might eventually be found to be a fault.

Terra Firma Chambers’ Robert Sutherland was instructed on behalf of the appellants.