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Prescription (Scotland) Act 2018

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Section 14 - Burden of proof

53.For clarity, section 14 inserts a new section 13A, dealing with the onus of proof, into the 1973 Act.

54.Subsection (1) of new section 13A provides that the section applies to any proceedings for implementation of an obligation to which the five-year, 20-year or two-year prescriptive periods (as provided for by sections 6, 7 and 8A respectively of the 1973 Act), or to any proceedings to establish a right to which section 8 (extinction of other rights relating to property by prescriptive periods of 20 years) applies.

55.Subsection (2) provides that where there is any question as to whether or not an obligation or right has been extinguished by prescription, it is for the creditor to prove that the obligation or right has not been extinguished. The subsection is intended to apply “if a question arises as to whether the obligation or right has been extinguished by prescription”. Accordingly, the party seeking to rely on the right or obligation need not address that issue in the pleadings, unless the other party pleads that the obligation has prescribed. The subsection refers to the burden resting on the “creditor” rather than the pursuer, since issues of onus may arise in relation to a counterclaim, in which it would be the defender who bore the burden of proof.

56.The subsection refers to the “creditor” in its application to property rights under section 8, as the 1973 Act already uses “creditor” in relation to the holder of a property right (section 9(2) is an example).

57.Subsection (3) extends the provision on burden of proof to proceedings for implementation of an obligation to make reparation for damage caused wholly or partly by defective products (section 22A of the 1973 Act).

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