statute barred s173 and Prescription (Scotland) Act 2018

[StandFirm11]

Hi all,

I have some Scottish debts approaching 5 years from the date of last payment/acknowledgement. They were all defaulted  3-6 months after the date of last payment.

The usual they are involved - Link, Lowells, PRA. No letter before actions received to date.

I have a question regarding the recent the Prescription (Scotland) Act 2018 with sections 5 & 13 that came into effect from June 1st 2022.

I have searched and can't find any clear guidance regarding whether the:

1. 5 year clock starts from date of last payment/acknowledgement.

2. 5 year clock starts from date of registered default / DN notice

Some sources are adamant that the revisions now mean that the 5 year clock starts from date of default/DN. Where as some older articles state it's 5 years from date of last payment/acknowledgment.

I guess the worry for some on here would be in a situation where a debtor stops making payments but the creditor doesn't default or issue a DN until 1 - 2 years later and only then starting the 5 year clock.

If anyone can offer advice on this it would be much appreciated.

[StandFirm11]

Some further research and digging, came across this:

 

"In light of the decision of the Court of Appeal in the  English case of Doyle v PRA Group UK Limited (2019 EWCA Civ 12), I am grateful for Paul Tilley of Wannops LLP for sharing a decision of the Scottish Sheriff Appeals court that was decided in October 2018, and has not previously been published on the Scottish Courts Website.

 

The decision, PRA Group Ltd v MacPherson, considered the same point considered in Doyle, advanced by the PRA Group in the Court of Appeal, and that is when does prescription begins running in a consumer credit agreement?

 

The decision by Sheriff Principal Turnbull found it began running, not on breach of the agreement, but when a default notice was served.

 

MacPherson, it is understood, was relied upon by the PRA Group in the Doyle case."

 

Are we safe to assume that when considering SB, we need to accept it runs from date of Default/issue of DN?

[dx100uk]

There are several cases of the oc issuing a dn months even years after last use or payment of credit. That can successfully be argued.

 

We have several here to Inc wins, but no losses .

 

If you are itching to send of our Scottish SB letter I'd wait until dn+14 days.

 

Just remember the is no pre action protocol either 

 

Dx

 

 

[StandFirm11]

Thanks DX

 

Re: the no pre action protocol - So for scottish cases they can just issue an SPC without a letter before action?

 

Also was wondering on what your thoughts were on approaching the 5 year SB.

Do you find it common for the fleecers to just issue an SPC close to the SB date to avoid it extinguishing and kill the SB or will they all likely just go SB now because of the length of time that has passed.

 

DN notice + 14 days 

would make all of the accounts SB'd on Sept 2023 - Loan (£3k), credit card (£4k) and overdraft (£2k).

 

 

 

 

[dx100uk]

most fleecers forget its under scottish law and follow 6yrs, then findout they've missed the boat.

 

the one great thing about debts taken out whilst resident in scotland as opposed to E&W is once SB date has passed the debt is EXTINUQUISHED, dead gone parrot.

 

though moving without informing your debt owners in WRITING, is not a good thing to do. you can still get backdoor decrees¬!!

 

 

[StandFirm11]

Thanks Dx - doesn't surprise me.

 

Something I was thinking about. I had a case with Nolans/Cabot, it was my first time dealing with something like this and my lack of experience let Nolans get around the DN requirement and I didn't persist enough. It was my fault, the help on here was fantatastic and you helped me massively.

 

It got me thinking about the SB defence in future cases that. One thing I have noticed from most of the SPC cases, including my own, is the fleecers really struggle to produce a copy of the DN.

 

Let's say if we assume (it's unclear) that SB clock runs from DN/default. If we assume that the fleecers will never produce the DN, wouldn't they have to accept that the SB clock runs from last payment, as they can't prove a DN was ever issued? Would a Sheriff entertain this defence?

 

Example:

 

Example:

Last payment - April 2018

Default -            July 2018

Date of issue SPC - June 2023 (5 years + 2 months from last payment but within 5 years from default)

 

We issue SB defence, requesting proof of DN. Fleecers don't provide it. Is there any other proof of default? or would the Sheriff have to just accept that 5 years runs from last payment without proof of DN.

 

What do you think?

 

[dx100uk]

there are cases here that ended in sb with both the above scenarios.

dont forget they dont have to produce the DN, only enough evidence to prove one was sent. however in the 3 times ive beaten nolans ( hi nolans... ) up here, the sheriff has insisted on a copy, as one can never be sure the correct time to pay of 14days+postage time  was given.

and a creditor cannot be allowed to run the sb date to infinity just because they issued a dn several months or years after last payment.