Limitation of Actions Consultation - Law Commission

ended in 1993. 25
But, as the next example illustrates, section 28A(1)(a) can create
potential anomalies.
Example 5 The facts are the same as Example 4, except that the plaintiff
remains incapable until 1995. Since neither section 28 nor section 28A operates to
stop the running of time, his claim is time-barred in 1994, even though he is still
under disability, and has been under disability at all times since the cause of action
became discoverable with reasonable diligence. This follows from the wording of
the statute, but it appears to run counter to the recommendations of the Law
Reform Committee, on which the Latent Damage Act 1986 was based. 26
8.10 Where the plaintiff is a successor in title to another person who had a claim,
section 28A will usually apply in a similar way. 27
Suppose that, in Examples 1, 2, 4
and 5 above, P purchased the building from Q in 1989, before losing his capacity.
P’s cause of action will be deemed to have accrued when the original cause of
action accrued, in 1988. 28
The limitation period will end in the same years as in
the original example. The position is different, however, in Example 3. Although P
loses his legal capacity in 1987, and is under disability in 1988 when the cause of
action is deemed to have accrued, before he purchased the building, section 3(3)
of the Latent Damage Act 1986 disapplies section 28 of the 1980 Act. Because P
is still under disability when the cause of action is discoverable, section 28A
applies, and the limitation period ends in 1996, three years after the end of the
disability.
2. FRAUD, CONCEALMENT AND MISTAKE
8.11 Under section 32 of the 1980 Act, the limitation period prescribed in the Act for a
cause of action will not begin to run in three cases:
(1) where the action is based on the fraud of the defendant;
(2) where any fact which is relevant to the plaintiff’s right of action has been
deliberately concealed from him by the defendant; and
(3) where the action is for relief for the consequences of a mistake.
“Defendant” for the purposes of the section includes references to the defendant’s
agent and to any person through whom the defendant claims. 29
The
25 See A McGee, Limitation Periods (2nd ed 1994), pp 99 - 100, where it is suggested that the
drafting of section 28A(1)(a) is intended to avoid just this anomalous result, whereby
section 28A would have shortened the limitation period instead of lengthening it.
26
See Twenty-Fourth Report (Latent Damage) (1984) Cmnd 9390, paras 4.15 - 4.18, especially
recommendation (b) quoted at para 8.7 n 19 above.
27 It has been seen that some commentators have argued that these are the only circumstances
in which s 28A is capable of applying: see para 8.7 above.
28 Latent Damage Act 1986, s 3(2)(b). See para 3.100 above.
29 Section 32(1).
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