Limitation of Actions Consultation - Law Commission

judgment of the court”. 37
Whether all the relevant elements of the cause of action
are present is a matter of construction of the statute under which the cause of
action arises. In practice the courts have held that this requirement is fulfilled if a
statement of claim could not be struck out as disclosing no cause of action. 38
(b) Actions on a statute and “statutory torts”
7.17 A difficulty in interpreting the Limitation Act 1980 - although few, if any, practical
consequences turn on this - is whether section 9 (or conceivably section 8) applies,
as opposed to section 2, in cases where the statute concerned confers a right
against another private citizen and provides a remedy if that right is infringed. An
example is actions for infringement of patent rights under the Patents Act 1977.
Such actions are actions to enforce rights granted by statute (which could not be
brought in the absence of the statute) and, where damages are sought, are also
actions to recover money recoverable by virtue of an enactment. They are
however regarded as actions in tort, 39
and in Sevcon Ltd v Lucas CAV Ltd, 40
an
action for damages for patent infringement, it was accepted by both appellants and
respondents that the limitation period for torts in section 2 of the 1980 Act was
the applicable provision. 41
7.18 The same question arises in relation to, for example, actions under the
Misrepresentation Act 1967. Although an action for damages for non-fraudulent
misrepresentation, where the burden is on the defendant to prove that he or she
had reasonable grounds for making the statement, is (and can only be) brought by
virtue of the statute, it appears that such actions are normally treated as being
founded on tort. 42
Though there is no authority on the application of the 1980
Act to actions founded on the Misrepresentation Act 1967, it would seem that
37 Lord Esher MR in Coburn v Colledge [1897] 1 QB 702, 706. This test was accepted and
applied in Central Electricity Generating Board v Halifax Corpn [1963] AC 785, 800 per Lord
Reid.
38 See Swansea Council v Glass [1992] 1 QB 844, 852 per Taylor LJ (applying the test
formulated by Lord Mackay in Sevcon Ltd v Lucas CAV Ltd [1986] 1 WLR 462).
39 General Tire and Rubber Co v Firestone and Rubber Co Ltd [1975] 1 WLR 819, per Lord
Wilberforce at 824.
40 [1986] 1 WLR 462.
41 It appears not to have been argued that s 9 of the 1980 Act applied. Though this decision
has been criticised for this reason (among others) by Andrew McGee, “Patent Nonsense”
(1986) 49 MLR 650 it accords with the treatment of patent infringement as a statutory tort
for, inter alia, conflicts of laws purposes (see Morton-Norwich Products Inc v Intercen Ltd
[1978] RPC). It would be inconsistent if actions for damages for patent infringement were
treated differently for limitation purposes.
42 The Misrepresentation Act 1967 is described in Clerk & Lindsell on Torts (17th ed 1995),
para 14-43, as “in effect extend[ing] the tort of deceit”. See also dicta of Bridge LJ in
Howard Marine and Dredging Co Ltd v A Ogden Sons (Excavations) Ltd [1978] QB 574, 595:
“the remaining ... question raised in this appeal is whether Mr O’Loughlin’s undoubted
misrepresentation gives rise to any liability in tort either under the provisions of the
Misrepresentation Act 1967 or at common law for breach of a duty of care ...”. Further,
Royscot Trust Ltd v Rogerson [1991] 2 QB 297 held that the appropriate measure of damages
in cases under s 2(1) of the Misrepresentation Act 1967 was the tortious measure and the
remoteness test was the same as that applicable to the tort of deceit.
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