Limitation of Actions Consultation - Law Commission

8.30 Where a right of action has accrued to a mortgagee, a payment in respect of the
debt 73
will cause a fresh right of action to accrue to the mortgagee at the date on
which the payment is made. 74
8.31 If a mortgagee has taken possession of mortgaged land under the terms of the
mortgage, an acknowledgement by the mortgagee of the title of the mortgagor, or
of the equity of redemption of the mortgagor, will allow the mortgagor twelve
years from the date of that acknowledgement within which to bring an action to
redeem the mortgage. 75
Similarly, if the mortgagee receives a payment in respect
of the mortgage debt (whether of interest or principal), the mortgagor will be able
to bring an action to redeem the land within twelve years of the payment. 76
(b) Liquidated pecuniary claims and claims to personal estate
8.32 Under section 29(5) where a right of action accrues to recover a debt or other
liquidated pecuniary claim, or a share in the personal estate of the deceased, either
an acknowledgement or a payment in respect of the amount claimed, made by the
debtor to the person to whom the right of action has accrued, will restart the
limitation period in respect of that claim, from the date of the acknowledgement or
payment. There is little authority as to what claims are liquidated claims within the
meaning of the subsection. 77
A claim for remuneration on a quantum meruit basis
has, in Amantilla Ltd v Telefusion PLC, 78
been held to be a “debt or other liquidated
claim” for the purposes of section 29(5).
(2) What Constitutes an Acknowledgement or Part Payment?
(a) Acknowledgements
8.33 An acknowledgement, to be effective for the purposes of section 29 to 31, must be
in writing and signed by the person who makes it. 79
The acknowledgement does
not have to quantify the amount due, but it must include an admission that a sum
is due, 80
and if the sum is not quantified in the acknowledgement, it must be
capable of ascertainment by calculation or by using extrinsic evidence, without
73 Whether a payment of interest or the principal.
74 Section 29(3). See paras 8.44 - 8.48 below in relation to the rights of third parties.
75 Section 29(4)(b).
76 Section 29(4)(a).
77 A McGee, Limitation Periods (2nd ed 1994), p 299.
78 (1987) 9 Con LR 139. See para 5.15 above.
79 Section 30(1). Providing that a written acknowledgement has been made, the existence of
that acknowledgement may be proved by oral evidence if, for example, the
acknowledgement has been lost: Read v Price [1909] 2 KB 724.
80 A statement denying that the defendant is liable will not constitute an acknowledgement,
even when it contains an admission that the money claimed was paid to the defendant: Re
Flynn, dec’d (No 2) [1969] 2 Ch 403. But see Beale v Nind (1821) 4 B & Ald 568; 106 ER
1044, where a letter from the defendant denying liability on the basis that repayment had
already been made to the plaintiff was held to constitute an acknowledgement. See, further,
A McGee, Limitation Periods (2nd ed 1994), p 312.
154