Discussion
The dispute arose when the pursuer raised a claim against a firm of solicitors alleging that the solicitors had failed to include a survivorship destination in a Disposition for a marital home transferring a one-half pro indiviso share from him to his fiancée (and later his wife). Mr Ford, the pursuer, alleged that The Firm of W & A S Bruce solicitors, the defenders, performed their duties negligently and in breach of contract in October 2000 but he did not become aware of their defective work until his wife died in July 2013 and he learned the terms of her Will. The pursuer alleged that his late wife did not provide for her share of the property to revert to him in the event she pre-deceased him, leaving him only with a life rent. Consequently, upon pursuer's death, his late wife's share of the home would become the property of beneficiaries under her Will, who are her children from a previous relationship with whom pursuer has no familial connection. The defenders responded, in part, that even if the pursuer had suffered loss due to breach or loss due to their alleged fault or breach of contract, any obligation to make reparation for that loss had prescribed. The defenders argued that the pursuer incurred loss on 26 October 2000, when the Disposition transferring title from his name alone into the joint names of himself and his fiancée was registered with the Registers of Scotland. As the pursuer served the court action on the defenders on 6 July 2018, the defender contended, more than five years had elapsed and the claim had prescribed.
In Ford, the Court relied on the well-known cases of Gordon's Trustees and ICL Plastics but also the more recent decisions by Lord Doherty in Khosrowpour v Taylor [2018] CSOH 64 and Midlothian Council -v- Blyth & Blyth Consulting Engineers [2019] CSOH 29, in deciding that the pursuer's claim had, in fact, lapsed. The Court reasoned that the "pursuer suffered loss immediately [when] he conveyed a one-half pro indiviso share of his property to his fiancée". Most importantly, the Court noted that although "it was only upon the death of his wife that [pursuer] became actually aware that he had suffered a detriment by virtue of there being no survivorship destination, his loss as a matter of law occurred in October 2000 when the entitlement which he says he should have obtained by incorporation of the destination in the Disposition was omitted. It was at that point in time that an actual loss occurred, albeit an uncertain one because it could not have been known that his wife would in fact pre-decease him". [Para 30]
Comment
The decision may seem harsh, but it robustly confirms the current position of the law of prescription. There will be changes coming as to when claims prescribe when the Scottish Government publishes the necessary regulations relating to the Prescription (Scotland) Act 2018. We will keep you updated, so please watch this space!
