Sheriff Principal refuses permission for time-bar decision on defamation action to be considered by Inner House

About this case:

• Citation:
  [2026] SAC (Civ) 23
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Aisha Anwar

Raj Rohatgi had sought damages of £16,000 from defender Connor Sinclair in respect of an allegedly defamatory email sent on or around 18 July 2023, however he only instructed sheriff officers to serve notice several months after the initial writ was lodged with the court. He argued that recent amendments to the law of prescription were intended to bring Scots law into line with the position in England, which allowed for a separate period for citation.

The application was considered by Sheriff Principal Aisha Anwar KC and decided solely on written submissions.

Highest legal authority

On 3 July 2024, the applicant lodged an initial writ seeking damages for the alleged defamation. While he alleged that the email was sent on 18 July 2023, in his defence the respondent averred that it was in fact sent on or around 11 July of that year. Following the parties’ employer’s investigation into the allegations made in the email, the applicant’s employment was terminated on 9 August 2023. A warrant of citation was granted on 5 July 2024, with the applicant posting a copy of the initial writ to the respondent a few weeks later. Sheriff officers effected service of the notice on 4 October 2024 after the applicant was advised that this was required to formally effect service.

After a preliminary proof, the sheriff found in fact that the email had been sent on 11 July and accordingly the action had not commenced within a year after the right of action accrued and was time barred by virtue of section 18A of the Prescription and Limitation (Scotland) Act 1973. Before the Sheriff Appeal Court, the applicant argued that the sheriff erred in his approach to the word “commenced”, and that the action should be taken to have commenced not at the date of service but at the date an initial writ was lodged with the court.

In seeking permission to appeal the SAC’s refusal, the applicant maintained that the legislation was silent or lacked sufficient clarity on the issue of when proceedings were commenced. The Defamation and Malicious Publication (Scotland) Act 2021, which he maintained had made the relevant amendment to the 1973 Act, had been designed to bring the law into line with the law of England and Wales, which provided a specific period for service. An important point of principle arose because, he argued, the country needed to know what was meant by the date of limitation and it required to be ruled on “by the highest legal authority”.

The respondent submitted that the law relating to when an action was commenced was clear. There was nothing novel, important or undefined in relation to the proposition that an action for defamation must be brought within one year of the alleged defamatory statement, nor in the proposition that an action commenced upon service. There was no basis for the court to resort to considering the explanatory notes to the 2021 Act. The applicant’s insistence that the law in Scotland should align to that in England was confused and there was no other compelling reason to grant permission.

Commenced upon citation

In her decision, Sheriff Principal Anwar said of the core ground of appeal: “It is a well-established in Scots law that an action is commenced by service of proceedings. One of the earliest reported decisions on the issue [Alston v MacDougall (1887)] also concerned an action of damages for alleged slander. The Inner House held that an action was ‘commenced’ upon the citation of the defender.”

She cited in support Macphail’s Sheriff Court Practice, which explained at paragraph 6.06: “[The] function of due service of the initial writ is that, as a general rule, it marks the commencement of the action. The principal qualifications of that general rule are that the court has power to grant interim orders such as interim interdict or interim delivery before service, and that arrestments on the dependence or to found jurisdiction may be used before service. Such qualifications apart, an action does not commence until the defender is cited, or until that is deemed to have been achieved.”

Considering the wording of the 1973 Act as amended, the Sheriff Principal said: “Section 18A was first inserted into the 1973 Act by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985. The reference to the ‘commencement’ of an action was introduced at that stage and reflected the pre-existing frequent references to actions being ‘commenced’ in the 1973 Act. Again, it is a well-established principle that an action is commenced on the date of citation of the defender. That is the date on which prescription is interrupted.”

She concluded: “The only material changes made to section 18A(1) by section 32(2) of the 2021 Act were to (i) introduce limitation periods for the new types of action introduced by the 2021 Act and (ii) change the limitation period from 3 years to one year. The references to the ‘commencement of an action’ were unchanged. There is no basis upon which the court can legitimately have recourse to the explanatory notes to the 2021 Act; in any event those notes do not provide the assistance claimed by the applicant.”

Permission to appeal was therefore refused.