Limitation of Actions Consultation - Law Commission

efuses to accept, money which is due to him or her. It is necessary in all such
cases to examine precisely what the parties did. But it seems essential for there to
be at least a tender of the sum by the debtor for there to have been a payment for
the purposes of section 29(5): otherwise a creditor would be able to extend the
limitation period unilaterally by writing off small amounts of the debt. 104
And it
seems doubtful whether, if a debtor offers payment but the creditor refuses, leaving
the amount offered still outstanding, this will constitute a payment.
(c) Acknowledgement or part payment by or to an agent
8.42 Under section 30(2), an acknowledgement or payment may be made by an agent
of the person required to make it under section 29, and may be addressed to an
agent of the person to whom the right of action has accrued. A person will not be
an agent for the purposes of making an acknowledgement unless he or she is duly
authorised to make it. In Wright v Pepin, 105
Harman J noted that it was
unnecessary for the agent to be expressly authorised to give an acknowledgement:
it was enough that giving the acknowledgement was within the scope of the agent’s
authority. In that case, the agent was a solicitor, instructed to settle the affairs of
her client. Harman J held that she had the authority to acknowledge her client’s
mortgage for the purposes of the Limitation Act 1939. 106
In Re Transplanters
(Holding Company) Ltd, 107
it was held that an auditor of a company is not an agent
of the company for the purpose of giving an acknowledgement.
8.43 But in Re Beavan, 108
the debtor’s agent was held to have insufficient authority to
give an acknowledgement. The debtor was incapable of managing his affairs
because of mental illness. One of his sons undertook the management of his
business, and bank account, by agreement with the bank and gave an
acknowledgement for one of his father’s debts. The court held that the
acknowledgements given during the father’s lifetime did not stop the limitation
period “because clearly there is no agency and no capacity on the part of the
manager to act for the person of unsound mind at all”. 109
After his father’s death,
the son also completed an affidavit referring to the debt for the Inland Revenue,
acting as one of his father’s executors. It was alleged that the affidavit was also an
acknowledgement of the debt. The court accepted that, in acting as his father’s
executor, the son had the necessary authority at the time the affidavit was made,
but held that the affidavit was not an acknowledgement of the debt, as it was not
made to the creditor. 110
104 A McGee, Limitation Periods (2nd ed 1994), pp 310 - 311.
105 [1954] 1 WLR 635.
106 In Trustee in Bankruptcy of Bowring-Hanbury v Bowring-Hanbury [1943] 1 All ER 48 a
solicitor was held to lack the necessary authority to acknowledge a debt.
107 [1958] 1 WLR 822.
108 [1912] 1 Ch 196.
109 Ibid, 204, per Neville J.
110 For criticism of the decision see A McGee, Limitation Periods (2nd ed 1994), pp 300 - 301;
T Prime and G Scanlan, The Modern Law of Limitation (1993), p 49.
158