Limitation of Actions Consultation - Law Commission

(a) the period applicable in accordance with subsection (4) of
that section is the period mentioned in paragraph (b) of that
subsection;
(b) on the date which is for the purposes of that section the
starting date for reckoning that period the person by reference to
whose knowledge that date fell to be determined under section
(5) of that section was under a disability; and
(c) section 28 of this Act does not apply to the action;
the action may be brought at any time before the expiration of three
years from the date when he ceased to be under a disability or died
(whichever first occurred) notwithstanding that the period mentioned
above has expired.
(2) An action may not be brought by virtue of subsection (1) above
after the end of the period of limitation prescribed by section 14B of
this Act.
8.7 It will be seen that the circumstances in which section 28A applies are very
limited. It will not apply to all latent damage cases, but only to those where the
applicable primary limitation period under section 14A of the 1980 Act 13
is that of
three years from the date of the requisite knowledge, 14
rather than six years from
the accrual of the cause of action, 15
which effectively restricts it to cases where a
period of more than three years elapses between accrual of the cause of action, and
the acquisition of the relevant constructive or actual knowledge. 16
Moreover,
because (by virtue of section 28A(1)(b)) the operation of sections 28 and 28A is
mutually exclusive, section 28A will only apply in cases where the plaintiff’s
disability began between the accrual of the cause of action and the time when the
cause of action was discovered or became discoverable. 17
Some commentators
have argued that the correct construction of the section results in an even narrower
application of section 28A, restricted to cases where the plaintiff is a successor in
title to the person with the original claim. 18
This construction is contrary to the
policy of the statute 19
and, in our view, is not necessitated by the wording of section
28A.
13 See paras 3.87 - 3.93 above.
14 Under s 14A(4)(b) and (5): see para 3.93 above.
15 Under s 14A(4)(a).
16 Section 28A(1)(a). See A McGee, Limitation Periods (2nd ed 1994), pp 98 - 100, 324 - 326.
Cf T Prime and G P Scanlan, The Modern Law of Limitation (1993), pp 64 - 65.
17 Section 28A(1)(b). If the disability began before the accrual of the cause of action, s 28 will
apply, instead of s 28A.
18 See A McGee, Limitation Periods (2nd ed 1994), p 325; T Prime and G P Scanlan, The
Modern Law of Limitation (1993), p 64. This construction depends on a wide interpretation
of “does not apply” in section 28A(1)(c).
19 See Law Reform Committee Twenty-Fourth Report (Latent Damage) (1984) Cmnd 9390,
paras 4.17, recommendation (b), which reads:
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