THE IMPACT OF CONTINUING ACTS IN PRESCRIPTION

The right to bring litigation to enforce rights in Scotland is curtailed by various restrictions, including the five year prescription period (time limit) which applies to many types of claim, such as breach of contract and professional negligence actions.

Generally, the starting point for that five year period is when the right became enforceable, however that is subject to a number of exceptions and extensions and has recently been overhauled in important respects. One enduring feature of the law is that, where loss, injury or damage arises from a continuing act or omission, the clock does not start running until that act or omission ends.

This can be continuing advice about an issue such as tax advice or insurance cover, for example, but the issue which fell to be considered by the Court of Session in the case of Martin McGowan v Springfield Properties PLC was the recall of an interim interdict.

Wrongful Interdict

The background to this case has Mr McGowan, in February 2016, emailing Springfield Properties ("Springfield") to raise serious concerns over health and safety breaches in two of its housing developments. Among other things, Mr McGowan informed Springfield that he would be informing the home owners and potential buyers of risks allegedly arising from unsafe disposal of asbestos and crude oil.

Springfield, clearly alarmed by Mr McGowan's stated intentions, took steps to silence him by obtaining an interim interdict (injunction) from the court, dated 5 February 2016, which restrained him from making his allegations public.

That interim interdict remained in force until 26 May 2021, when it was recalled (retracted) in the wake of Springfield's conviction under the Health and Safety at Work etc. Act 1974 for unsafe removal of materials, i.e. the risks Mr McGown previously intended to publicise.

On 2 November 2021, Mr McGowan served proceedings on Springfield seeking damages for wrongful interdict, i.e. claiming the interdict should never have been sought by Springfield.

Continuing acts

Springfield argued that Mr McGowan's loss was suffered when the interim interdict was first pronounced, in February 2016. Therefore, the five year period for him to bring a claim had expired.

Mr McGowan argued that the interdict was wrongful, and remained so, until it was recalled in May 2021 meaning the clock did not start ticking until this much later date.

Springfield's case was that its own actions ended after it obtained the interdict after which it was only the court which had the power to recall it. This may be technically correct but, as the court pointed out, the reality is that it was open to Springfield to have the interim interdict recalled at any stage and the court would have almost certainly obliged.

The perils of interdict

The court agreed with Mr McGowan and allowed his claim to proceed. The essence of the wrong suffered by Mr McGowan was not the pronouncement of the interdict but the continued interference with his rights, something which continued until the interdict was recalled and the court will now go on to consider the merits of the claim.

Interdicts are granted on the basis that the party seeking the interdict does so at their own peril. That peril continues so long as the interdict is in force and the party to which it was granted has not vindicated their claim. In this case, Springfield assumed the peril of potentially having to pay damages for wrongful interdict and they could have brought that peril to an end at any time by seeking to have the interim interdict recalled.

Wider application?

First and foremost, this judgment re-emphasises the fact that a party which has obtained interdict against another should always keep the appropriateness of that interdict under review.

However, this judgment could resonate more widely than in the relatively limited confines of wrongful interdict actions. It may be possible for the reasoning in this case to be applied to wider scenarios where a party is accused of interfering with another's rights in a way which is within their powers to rectify, the delivery of a plan or report for example.