Scottish Sheriff Court Decisions

SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW

 

Process Number: SC781/11

 

INTERLOCUTOR

 

in the cause

 

BERNARD MILLS, 6 Craigmarloch Avenue, Glasgow G64 4AY

PURSUER

 

against

 

CANDLELIGHT ASSOCIATION, Registered Charity, last known address c/o EDCVS 19 Donaldson Crescent, Kirkintilloch G66 1XF

DEFENDERS

 

 

 

Act: Finnie, solicitor, Glasgow

Alt: Sullivan, solicitor, Kirkintilloch

 

 

Glasgow 12 March 2013

The Sheriff, having resumed consideration of the defenders' opposed motion that the onus of proof lay upon the pursuer and of the pursuer's opposed motion that the onus of proof lay upon the defenders, both motions being in respect of the preliminary proof previously assigned in the cause on the single issue of whether the pursuer's right of action had prescribed before the date of commencement of the action, Grants the defenders' motion and Refuses the pursuer's motion; accordingly Directs that the onus of proof rests upon the pursuer in that preliminary proof.

 

 

 

 

 

 

 

 

NOTE

[1] The question in issue in both motions put before me for determination is on whom does the onus of proof lie in the proof previously assigned to deal with the restricted issue of determining whether the pursuer's right to bring the present action prescribed before the commencement of the action.

 

[2] Each party submits that the burden of proof lies on the other party and each has made submissions in support of the different conclusion urged.

 

The ground of the action

[3] The ground of the pursuer's action lies in the law of contract. He avers that he and his wife (who is not a party to the action) were unpaid volunteers with the defenders from 2002 to 2008 and each entitled to expenses of £7 per day. They claim the sum of £3,236.05 from the defenders, that being the total sum set out in three invoices, two dated 23 November 2007 and the third 6 January 2008. The invoices are addressed from the pursuer to the Candlelight Committee, c/o EDCVS at the address of the defenders in the instance. Despite the actual terms of the first invoice the claims are said to be for such expenses incurred during the period between 8 April 2003 and 5 April 2005.

 

[4] The defenders' response to that ground is a denial of any liability to make payment of any of the sum claimed. Their primary position is that the pursuer, being a volunteer, was not entitled to any remuneration and in particular nothing for attending ordinary Tuesday meetings. Where the defenders did pay some expenses to volunteers they were paid at the time that these expenses were incurred and the pursuer was paid all the expenses which were claimed as due to him. Moreover, as what appears to be their secondary position, they aver that the accounts of the defenders for the period covered by the three invoices contained no indication that the defenders were due to pay any sums to the pursuer and his wife, and during that period the pursuer and his wife were office bearers of the defenders and for a time the pursuer was treasurer. The Office of the Scottish Charities Regulator signed off the defenders' accounts and those accounts did not show any sums due to the pursuer or his wife.

 

[5] The pursuer's reply on the secondary position is to aver that the defenders had insufficient funds between 2003 and 2005 to pay the sums that are due to the pursuer. Moreover, the ill-health of the pursuer's wife during 2006 and 2007 resulted in him being unable to issue invoices until when he did.

 

The issue of prescription

[6] In these averred circumstances the defenders have raised the issue of prescription and the pursuer has countered it. They have done so by way of averment rather than plea-in-law because the action has been raised as a summary cause, as it had to be. The defenders aver that if any sums are (or presumably from their chosen point of view were) due by the defenders to the pursuer the debt has prescribed, because the action was commenced or brought in January 2012. The pursuer's response is to admit that the action was raised during that month but to deny that the debt has prescribed because the sums sought fall within paragraph 1(1)(b) of schedule 2 to the Prescription and Limitation (Scotland) Act 1973 ("the Act"). He says that the appropriate date is the date on which payment in respect of the services last rendered became due, that was when the invoices were rendered to the defenders and therefore the action was raised within five years of the last date of that occurrence.

 

[7] The defenders do not aver in their defences the legal ground on which they say the pursuer's action proceeds. In the course of a discussion held on 30 January 2013 when the case had called for proof but the proof had not commenced the solicitor for the defenders initially stated that they also considered that the pursuer's case was founded in paragraph 1(1)(b) of the Act but as the discussion progressed he submitted that that they wished to depart from that. He expressly did that and replaced it with any one of three grounds, those being the grounds under one or other of subparagraphs (b), (d), or (g) of paragraph 1 of schedule 1 to the Act.

 

[8] At that same hearing the parties reached agreement on the issues of fact and law that were in dispute in the preliminary proof on prescription. There were three:

(1)   what is the true nature of the obligation in question?

(2)   what is the appropriate date for that obligation in question?

(3)   in the whole circumstances has the plea of prescription been proved for some if not all of the sum sued for?

The initial submissions

[9] Initially the solicitors on both sides did little more than state their respective primary positions that the onus of proof lay on the other party, but after a request from me to both of them for further submissions under reference to relevant judicial decisions and assistance from a textbook that discussed this area of the law, and following an adjournment to prepare for this extra submission, they both made more detailed submissions.

 

The submissions for the pursuer

[10] The solicitor for the pursuer began his support for the proposition that the onus lay upon the defenders by founding upon a single sentence in Macphail, Sheriff Court Practice, third edition at paragraph 13.08: "Where only one party has stated a preliminary plea or pleas, that party's advocate opens the debate." He then referred to the decision in the case of AMN Group Ltd v Gilcomston North Ltd 2008 SLT 835 for a passage in paragraph [8] of the decision of the Lord Ordinary, Lord Emslie, at page 838 relating to the onus of proof:

[8] It is convenient at this stage to deal with a number of preliminary legal points that were raised at the hearing before me. These were as follows:

(a) Onus of proof

In broad terms the parties were agreed that the onus of proving prima facie prescription under s 11(1) of the Act - a phrase borrowed from the speech of Lord Millett in BP Exploration Operating Co Ltd v Chevron Shipping Co 2001 SC (HL), p 55; 2001 SLT, p 1416, para 97 - lay upon those (here the defenders) by whom pleas of prescription were advanced. Conversely, on any issue regarding lack of awareness for the purposes of s 11(3), or regarding error for the purposes of s 6(4), the onus of proof lay on the pursuers. In Sinclair v MacDougall Estates Ltd, the first of these issues was resolved by concession, but in Strathclyde Regional Council v WA Fairhurst & Partners, 1997 SLT, pp 660-663, Lord Abernethy specifically held that the defenders, as the party positively asserting prescription under ss 6 and 11(1) of the Act, must accept the onus of proving facts and circumstances sufficient to justify their plea. The pursuers' onus under s 11(3) was more recently affirmed by Lord Macfadyen in Britannia Building Society v Clarke.

 

In my view the parties' agreement on these related issues was well founded, and in particular I accept that the decision in Strathclyde Regional Council settled any uncertainty as to which party must bear the onus of proof in connection with prima facie prescription for the purposes of s 11(1) of the Act.

 

[11] The solicitor for the pursuer then, after an adjournment to consider the decision in the case of Pelagic Freezing (Scotland) Ltd v Lovie Construction Ltd and another [2010] CSOH 145 and other matters, referred to paragraph 22.09 of the second edition of Johnston on Prescription and Limitation and submitted that that paragraph set out the present position. He then turned to the decision in the Pelagic case for the terms of paragraph [86] on onus of proof in the opinion of Lord Menzies and submitted that although this said that there was agreement that the onus lay on the pursuers that conclusion should not be applied to the present case because in the present case there was no such agreement and there matters rested. He then referred to the decision of Temporary Judge Wise (as she then was) in the case of Santander UK plc v Allied Surveyors Scotland plc 2011 SCLR 249 where she observed at paragraph [34] that she agreed with the opinion of Lord Menzies in Pelagic that where the issue of the burden of proof lay was a live matter then the view expressed in Richardson v Quercus was the preferable one. I was not asked to look at that earlier decision of Temporary Judge J. F. Wheatley Q.C. (as he then was) but the view was that it was for the pursuer to prove that his title to sue had been preserved. The solicitor for the pursuer submitted that the decision in Santander should be distinguished from the present case on two grounds: first, because Santander was concerned with a claim for damages; and second, it rested on the decision in Pelagic and that case should itself be distinguished as already submitted.

 

[12] In conclusion he submitted that support for his proposition that the onus of proof lay upon the defenders was found in the decisions in two cases, Strathclyde Regional Council v WA Fairhurst & Partners 1997 SLT 658 and BP Exploration Operating Company Limited v Chevron Shipping Company [2001] UKHL 50, 2001 SC(HL) 19; 2001 SLT 1394. He did not refer me to either case beyond the use he said was made of them by Johnston at paragraph 22.09. He ended by saying that this was a difficult area of law with much uncertainty.

 

The submissions for the defenders

[13] The solicitor for the defenders submitted that the onus of proof lay upon the pursuer because it was incumbent on him to demonstrate that he had an extant claim against the defenders. He then submitted that a sheriff had a legal obligation to take note of questions of relevancy. When asked the authority for that proposition he said that he would come back to that (which he did not to my knowledge) and then moved on to look at the decision of the First Division of the Court of Session in the case of The Gray Aitken Partnership Ltd and others v Link Housing Association Ltd [2006] CSIH 4, 2007 SC 294. He did so for the comment made by the Lord President, Lord Hamilton, in paragraph [17] of his opinion:

"Unless it is apparent from a pursuer's averments that the obligation has been extinguished by prescription, it is generally for a party relying on a contention that it has been extinguished to establish the factual basis upon which the contention depends (Strathclyde Regional Council v W.A. Fairhurst & Partners 1997 SLT 658)."

 

He said that in the present case the pursuer's pleadings showed that there was a live issue of prescription and therefore it was for the pursuer to lead at proof.

 

[14] He then turned to the decision in the case of Pelagic and founded upon the terms of paragraph [95] of the Lord Ordinary's opinion and particularly its last three sentences:

"In circumstances in which there is no particular unfairness in placing the burden on one side or the other, it is consistent with principle to place the burden on the pursuers who assert that they have a legal right against the defenders. If, in a clear case, the court can have regard ex proprio motu to the extinction of an obligation meaning that there is no legal right in existence, I find it difficult to understand why (in a clear or unclear case) the burden of proving that there is no legal right in existence should rest with the defenders. I agree with the view expressed in Richardson v Quercus that once the question of prescription has been raised it is for the pursuer to prove that his title to sue has been preserved."

 

He took from the paragraph that the Lord Ordinary agreed with the views expressed in Richardson that it was for the pursuer to prove his title to sue but he did not cite that decision and did not invite me to consider it at all. He observed that in Santander the temporary Judge confirmed the Lord Ordinary's approach. He further commented that although Johnston's book was not of institutional status it was the foremost authority in the field of prescription and limitation.

 

[15] He then referred to the decision in the Strathclyde case for two passages in the decision of Lord Abernethy, at pages 660K to L and 661F to G from which he took that the onus of proof was on the defender unless the matter before the court was clear on the face of the pleadings and he submitted that was the case in the present action. The passage at 660K to L is:

"For reasons which will become clear later, my opinion on the question of onus is not decisive on this part of the case. But since the matter was argued so fully before me it is right that I should express a view on it. In my opinion the onus is on the defenders not just to raise the issue in a plea in law but also, unless the matter is already clear on the face of the pursuers' pleadings, to aver and, if necessary, prove facts and circumstances which justify the plea."

 

The passage at 661F to G is:

"In the Caledonian Railway case if one just looked at the dates given in the summons it appeared that the Act applied. But the pursuers made averments that by reason of the defenders' conduct the Act should not apply. In such a situation, which is somewhat similar to that now provided for by s 6 (4) of the 1973 Act, it is not surprising that the pursuers should be expected to undertake the onus of averment and proof. It is no different in principle from the onus the pursuers accept here in a later part of the case under s 11 (3) of the Act. It is just another illustration of the general rule that the burden of proof rests on the party who alleges the affirmative."

 

[16] He then moved on to the decision in the case of Glasper v Rodger 1996 SLT 44 and referred to two passages, at page 45H and 47J both of which he submitted supported the onus of proof being on the pursuer. The passage at 45H is:

The pursuers have now appealed against the sheriff principal's interlocutor. The principal ground on which this appeal is taken is that the sheriff principal erred in holding that the pursuers had failed relevantly to aver that their right of action had not become prescribed in terms of s 11 (3) of the 1973 Act, there being sufficient averments to the effect that the pursuers did not know and could not have known with reasonable diligence that they had suffered loss, injury or damage until a date within five years of the raising of the action.

 

And at 47J is:

"In the present case the pursuers' lack of awareness, according to their averments, relates not to the question of causation but to the fact that they had sustained a loss in the first place. A party who is aware that he has sustained loss, injury or damage may reasonably be expected to take some steps to find out what has caused that loss. Failure to do this will call for an explanation, if the test of reasonable diligence to which s 11 (3) refers is to be capable of being satisfied."

 

Submission in reply for the pursuer

[17] The solicitor for the pursuer submitted that the pleadings as adjusted were unclear in the sense urged by the solicitor for the defenders and therefore the onus of proof lay with the defenders. He then indicated that the pursuer wished to found upon the terms of paragraph [17] of the opinion of the Lord President in the Gray Aitken case quoted above.

 

Discussion

[18] Questions of prescription are creatures of statute because they are governed by the Act. It sets out the substantive law on which obligations are subject to which statutory provisions. What the Act does not do is give assistance in answering the question of on which party to an action lies the onus of proof in any given set of circumstances in which prescription is placed in issue. Where the question of onus is a live matter, as in the present case, the resolution of that question has to depend upon the individual facts and circumstances of the case construed in light of judicial decisions that are both relevant and authoritative. To assist me in that respect parties cited to the extent that they wished to make use of them the seven decided cases noted: Glasper, Strathclyde, BP Exploration, Gray Aitken, AMN, Pelagic and Santander; and in addition referred to a single quotation from Macphail and several paragraphs from Johnston.

 

[19] In the present case there is a dispute over the true nature of the obligation in question. The pursuer says that it falls within paragraph 1(1)(b) of schedule 2 to the Act, while the defenders contend that it is under one of three subparagraphs of paragraph 1 of schedule 1. Whichever is proved to be the case, all of these provisions concern obligations which are subject to the prescriptive period of five years under section 6 of the Act.

 

[20] Section 6 of the Act, so far as relevant to the present matter, provides as follows.

(1) If, after the appropriate date, an obligation to which this section applies has subsisted for a continuous period of five years-

(a) without any relevant claim having been made in relation to the obligation, and

(b) without the subsistence of the obligation having been relevantly acknowledged,

then as from the expiration of that period the obligation shall be extinguished:

Provided that in its application to an obligation under a bill of exchange or a promissory note this subsection shall have effect as if paragraph (b) thereof were omitted.

 

(2) Schedule 1 to this Act shall have effect for defining the obligations to which this section applies.

 

(3) In subsection (1) above the reference to the appropriate date, in relation to an obligation of any kind specified in Schedule 2 to this Act is a reference to the date specified in that Schedule in relation to obligations of that kind, and in relation to an obligation of any other kind is a reference to the date when the obligation became enforceable.

 

[21] The heading to section 6 describes the main subject of the section: it concerns the extinction of obligations by prescriptive periods of five years. The first requirement for any party invoking the section is that the action concern an obligation falling within the scope of the section. In the present case the defenders have placed in issue the pursuer's stated ground. They aver that it is incorrect on the facts of the case and offer to prove that whichever competent ground is correct it is not the one on which the pursuer founds. This dispute, founded in the respective pleadings of the parties and the clarification of the content of that dispute provided by the issues analysed at the hearing on 30 January 2013 will have to be resolved by leading evidence. It is in this respect no different from any situation where there is a dispute over a fact that is material to a depending civil action: it is not restricted to the field of prescription. Where, as in the present case, the issue arises out of the pursuer's ground of action the normal rule as to onus of proof is that it lies with the pursuer when the defenders deny the obligation on which they are being sued. This is traditionally expressed by the Latin brocard ei qui affirmat, non ei qui negat, incumbit probatio. Accordingly as a matter of pleading practice it would be correct in the present case to conclude that the onus of proving that the obligation in question was what the pursuer says it is in fact and in law unless the Act or the judicial authorities that were either in point or binding, or possibly both, upon me determined otherwise. Since the Act is silent on the matter I have to turn to the judicial authorities that were cited in the course of argument.

 

[22] Of the seven cases cited, all decided in the Court of Session, four asserted that the onus of proof lay upon a defender (Strathclyde, BP Exploration, AMN and Gray Aitken) and two that it lay on a pursuer (Pelagic and Santander).

 

[23] The seventh was the decision in Glasper. I found no real assistance in it. In that case there was no dispute over the ground of action. The dispute concerned the pleading requirements that were necessary to invoke relevantly and with sufficient specification the provisions of section 11(3) of the Act for the purpose of determining the allowance of an appropriate enquiry into the facts of the case. As far as I can see the court was not asked to address the question of onus of proof and the decision of the court given by the Lord President, Lord Hope, gives no express direction about where the onus lies.

 

[24] As for the decision in Strathclyde although it places the onus on the defenders it does so in the particular circumstances of that case and does not rule out the possibility of the onus being on the pursuer. In Strathclyde the ground of action arose under paragraph 1(d) of schedule 1 to the Act, and the parties did not dispute that. The question in issue was therefore different from the present one. The case came before the court at a procedure roll hearing on two preliminary pleas tabled by the defenders, one addressing prescription of right under both section 7 of the Act (the long negative prescription) and section 6 (the short negative prescription) and the other a general plea to the relevancy and specification of the pursuers' pleadings. The focus of attention was accordingly, as Lord Abernethy observed in the context of the arguments over the application of section 6, on the content of the pursuers' pleadings: "The question is whether the pursuers have made sufficient averments to entitle them to go forward to proof." (663F). His decision has to be viewed and understood within the confines of a procedure roll hearing. In relation to both of the prescriptive periods he concluded that the onus of proof lay upon the defenders for what in essence was the same reason, that unless the matter was clear on the face of the pursuer's pleadings it was for the defenders not only to take the plea of prescription but also to aver and, if necessary, orove facts and circumstances which justify it (660L and 663C). He expressed the legal ground on which this reason rested as "a general rule that the burden of proof rests on the party who alleges the affirmative which he derived from Walker and Walker, Evidence, at page 67, the reference being to the first edition of 1964. He held that the affirmative in this context was that the obligation had subsisted for the prescriptive period. The essential difference in the present case is that the nature of the obligation is in dispute. That seems to me to place the present case in a situation so different from that in Strathclyde that the decision on onus in that case can be distinguished from the present case.

 

[25] The case of BP Exploration was referred to for what the solicitor for the pursuer said was only so far as mentioned in Mr. Johnston's book at paragraph 22.09. I regret to say that I can find no reference to the decision in that case in that paragraph or indeed in any of the other paragraphs mentioned in the course of the hearing. Mr Johnston does make use of the case but that is on four occasions in chapter 6 and not in any of the paragraphs of chapter 13 that were used in the hearing. In these circumstances I am precluded from venturing upon any further discussion of it.

 

[26] In the AMN case, the decision on onus was taken out of the hands of the court by the parties because, as Lord Emslie observed, "the parties were agreed that the onus of proving prima facie prescription under s. 11(1) of the Act....lay upon those (here the defenders) by whom pleas of prescription were advanced." This was in the context of a case where section 11(1) of the Act was in issue. That is not a ground that the pursuer founds upon although it is one on which the defenders may yet rely depending upon which of the three grounds on which they presently found is established after proof. Moreover there was no dispute over the legal ground of action in AMN and that must be held to have been an important consideration in his conclusion that the approach to onus of proof in Strathclyde was as he said well founded. In addition, as Lord Menzies observes at paragraph [88] of his decision in the cae of Pelagic "Lord Emslie was not given the benefit of argument on this point [of onus]. I consider that there is considerable force in that observation and as a result of that and also the nature of the concession I should treat Lord Emslie's words as obiter. It is also of relevance for the present case that Lord Emslie did say later in paragraph [8] of his opinion that there were situations involving prescriptive right in which the onus of proof lay upon a pursuer. Accordingly I conclude that the opinion in that case does not lay down a rule in cases involving prescriptive rights that the onus of proof always rests upon the defenders. Ultimately it is a matter of fact and circumstance in each case.

 

[27] The Gray Aitken case at paragraph [17] of the opinion of the court delivered by the Lord President, Lord Hamilton, accepted the correctness of the approach in Strathclyde. It did so in the context of a submission by counsel for the fourth defenders and reclaimers which the court indicated it could not give effect to "at this stage" of the proceedings. Accordingly the acceptance has to be treated as no more than general agreement with what Lord Abernethy said without further exposition of its meaning or scope.

 

[28] Turning to the two cases that placed the onus of proof on the pursuer, the decision in Pelagic owes much to the decision of the temporary judge in the unreported case of Richardson v Quercus Ltd, March 25, 1997, Outer House. I was not referred to that earlier decision, presumably because it was difficult to get hold of a copy of the full decision. The references to it in the opinion of Lord Menzies in Pelagic indicate that the decision was that once the question of prescription had been raised it was for the pursuer to prove that his title to sue had been preserved. Lord Menzies agreed with that general proposition whch he considered applied to the facts of the case before him, for which see in particular paragraphs [89] and [95] of his opinion.

 

[29] In the case of Santander the temporary judge agreed with the opinion of Lord Menzies and said that where it did matter on whom lay the onus of proof, she preferred the view expressed in Richardson. These observations must be treated as obiter because she considered that the question of onus was not a matter of central importance where the evidence had been led before her and there was an extensive joint minute dealing with crucial facts. Accordingly beyond advocating the same conclusion as to onus of proof I do not take from this case anything beyond what was said in the Pelagic case on this point.

 

[30] Before leaving the authorities cited I should say something about the references to the two textbooks mentioned in submissions. The single sentence relied upon in Macphail is dealing with an entirely different mode of enquiry from the one that we are engaged in. It is dealing with a legal debate. That is what that entire first part of Chapter 13 of the book is concerned with. Moreover the proposition is stating only the general position at such a debate, and for obvious reasons takes no account of the particular issues raised by the present dispute in the context of a proof. Furthermore, and again for obvious reasons, it is stated without reference to the various authorities that discuss the very question under consideration in the present case. Accordingly I do not find the use of this proposition to be of assistance for the present dispute over onus of proof. As for Johnston, I have found its exposition of the law to be of great assistance.

 

[31] Having reviewed the judicial decisions in so far as argued before me, I conclude from them that there is no rule of law which places upon a defender in all cases the onus of proving a prescription issue once taken in answer to a claim by a pursuer. The decisions seem to indicate that each case has to be determined on its own facts and circumstances and in light of those a decision made about the burden of proof.

 

[32] The plea taken in the present case is that the pursuer's right to bring his action has prescribed. That is a preliminary plea-in-law. It is more difficult to characterise into the commonly used categories of such pleas than many such pleas. It attacks the legal ground on which he seeks to bring the action. Accordingly it could be characterised as an objection to the instance, namely, no title and interest to sue they having been ended by passage of time; or as an objection to the jurisdiction of the court for the same reason; or an objection to the competency of the action. However it is viewed it is an attack on a legal right to bring the current proceedings.

 

[33] I have concluded that I find the reasoning of Lord Menzies in Pelagic to be of particular assistance in determining on whom lies the onus of proof in the present case. It seems to me that the dispute over the pursuer's averred ground of action requires him to prove that the ground is correctly supported in fact and in law. It is central to his case. Unless he can prove that he has a claim that has not prescribed then his action will fail without further inquiry into its merits or quantum. Accordingly I have concluded that in the absence of any assistance in the Act and in light of the authorities cited, the onus probandi in the proof on prescription rests upon the pursuer. This conclusion is also supported by Mr Johnston at paragraph 22.10 when he opines, in my view correctly, that the rule that the burden of proof rests on the party who asserts the affirmative proposition "is not to be taken literally but should be regarded as indicating that where an allegation, either positive or negative, is essential to a party's case the proof of it rests on him."

 

[34] There is another reason why I am satisfied that this is the correct conclusion. It arises from what Lord Abernethy said in Strathclyde at both 660L and 663C. As expressed at 663C in relation to the submissions on the short negative prescription he said that "unless the matter [of onus] is clear on the face of the pursuers' pleadings, it is for the defenders not only to take the plea of prescription in terms of s 6 but also to aver and, if necessary, prove facts and circumstances which justify it." That was the view accepted by the court in the Gray Aitken case. The solicitor for the defenders submitted that the present case fell within that exception because of the way that pleadings lay while the solicitor for the pursuer submitted that they did not. On this point I prefer the submission for the defenders. The pursuer's claim is said to be for expenses incurred between 8 April 2003 and 5 April 2005. He accepts in his pleadings that the present action was commenced or brought in January 2012. The exact date agreed by the parties at the hearing on 30 January 2013 was 23 January 2012. That is more than five years after the last date to which the expenses are said to relate. Because of that he founds upon three invoices, two dated 23 November 2007 and the third 6 January 2008. From the pleadings and the discussion referred to, the anticipated area of dispute in the proof on prescription is therefore the effect on the true nature of the obligation in question of actings that are said to affect the date of commencement of the prescriptive period, presumably by delaying its commencement. The defenders say that the last, but by no means the only, appropriate date was 5 April 2005 while the pursuer says that the appropriate date was the date on which the pursuer's accounts were rendered to the defenders, that being in November 2007 and January 2008. If the defenders are correct then the pursuer's right of action prescribed before the commencement of the action and the plea falls to be sustained. If the pursuer is correct then the right of action had not prescribed as at that date and the plea of prescription fails.

 

[35] It seems to me that the pursuer's case, as pled, takes him into the exception proposed by Lord Abernethy and accepted as such by the court in the Gray Aitken case. On the face of the pursuer's pleadings there is a live issue of prescription. It is for the pursuer to prove that as at the date of commencing or bringing the present action he had a claim founded in contract that had not prescribed. Without that he has neither title nor interest to sue. Alternatively the matter could be couched as a question of jurisdiction or competence: without a right that had not prescribed the pursuer would have raised an action that the court lacked jurisdiction to entertain and separately it was incompetent. However it is viewed the onus of proof of his right to litigate in the present action rests upon the pursuer.

 

[36] For the foregoing reasons I grant the defenders' motion and refuse the pursuer's motion. I therefore direct that the onus of proof in the preliminary proof previously assigned in the cause on the single issue of whether the pursuer's right of action had prescribed before the date of commencement of the action rests upon the pursuer.

 

Expenses

[37] I was not addressed on the question of the expenses of the motion. I leave it to parties to deal with that matter as they think appropriate.