Limitation of Actions Consultation - Law Commission

(b) Discretionary exclusion of the limitation period
(i) Matrimonial Causes Act 1973 (“MCA 1973”)
7.28 Under section 13 of the MCA 1973, the court may not grant a decree of nullity on
grounds other than non-consummation of the marriage unless the proceedings for
a decree are instituted within three years of the marriage taking place. However,
where the court is satisfied that the petitioner has within that period suffered from
mental disorder within the meaning of the Mental Health Act 1983, it has a
discretion to grant leave for the institution of proceedings if the judge “considers in
all the circumstances of the case it would be just to grant leave”. 55
(ii) Solicitors Act 1974
7.29 Under section 70 of the Solicitors Act 1974, the time limit for an application for
the taxation of a solicitor’s bill is twelve months from the date of delivery of the
bill. However, the court may grant an application for taxation of an unpaid bill
after this time limit if there are “special circumstances”. 56
The meaning of “special
circumstances” was explored in Re Norman. 57
Here it was suggested that “special
circumstances” included not only “pressure and overcharge, or overcharge
extending to fraud”, but also extended to cases where the amount charged was
particularly high, and errors had been made. In a more recent case, Kralj v
Birkbeck Montague, 58
the Court of Appeal found special circumstances where the
solicitors concerned had dissuaded their client from taxing their costs and had
charged her substantially more than was recovered inter partes.
(iii) Inheritance (Provision for Family and Dependants) Act 1975 (“IPFDA 1975”)
7.30 Under section 4 of the IPFDA, no application for an order for provision under the
Act may be made outside the time limit of six months from the date on which
representation with respect to the date of the deceased is taken out except with the
permission of the court. The discretion of the court is unfettered, and is to be
exercised “judicially and in accordance with what is just and proper”. 59
Some of
the factors to be considered by the court in deciding whether to exercise its
discretion were reviewed in Re Salmon, deceased. 60
Sir Robert Megarry VC held
that the onus is on the plaintiff to satisfy the court that there are grounds to take
the case out of the general rule. The court will consider how promptly, and in
what circumstances, the applicant has sought the permission of the court after the
55 Section 13(4).
56 Section 70(3). Where the bill has been paid, the applicant must show the existence of
“special circumstances” for an application for taxation made within the twelve month
period. The court has no jurisdiction to make an order for taxation of a bill which has been
paid more than twelve months after the delivery of that bill.
57 (1886) 16 QBD 673. The case was decided under the Solicitors Act 1843 (6 & 7 Vict. c
73), which also provided that when twelve months have elapsed since a bill was delivered,
the bill is not to be taxed “except under special circumstances”.
58 Unreported, 18 February 1988.
59 In re Salmon, dec’d, Coard v National Westminster Bank Limited [1981] 1 Ch 167, 175.
60 [1981] 1 Ch 167.
120