Limitation of Actions Consultation - Law Commission

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mortgage debt, the mortgagor is entitled to redeem the proportion of the whole debt which is equivalent to the proportion of all the mortgaged land to which the mortgagee is entitled. In contrast, where there are two or more mortgagors, and a mortgagee in possession of the mortgaged land gives such an acknowledgement to one of the mortgagors, that acknowledgement is treated as being given to all the mortgagors. 122 122 Section 31(5). 160
PART IX ADDITIONAL ISSUES 1 WHAT HAPPENS WHEN TIME EXPIRES? 9.1 The general rule is that expiry of a limitation period bars the remedy but does not extinguish the right. 1 Where there is a defence of limitation in any particular action, that defence must be specifically pleaded by the defendant. 2 It follows that if the defendant elects to contest the action on the merits, the plaintiff may still obtain his remedy, notwithstanding the fact that the limitation period prescribed by the statute has expired. 9.2 Even if a defendant does successfully plead a limitation defence, so that the plaintiff has no remedy through the courts, there may be other “self-help” methods open to him or her to enforce the right. 3 For example: (1) A solicitor’s lien may be enforced after his costs have become statutebarred under the 1980 Act. 4 (2) An executor may deduct the amount of a statute-barred debt owed by a legatee to the estate from any legacy paid to that legatee. 5 (3) If a creditor receives money from a debtor on account of debts, and that money is not appropriated to a specific debt, the creditor may appropriate the money to a statute-barred debt. 6 9.3 Once an action has become time-barred, the defendant has an accrued right to rely on that time bar despite the subsequent repeal of the relevant limitation provision (unless the contrary intention appears in the repealing legislation). 7 1 See Curwen v Milburn (1889) 42 ChD 424, 434 - 5, Royal Norwegian Government v Constant & Constant and Calcutta Marine Engineering Co Ltd [1960] 2 Lloyd’s Rep 431, 442. The exceptions to this rule are discussed in para 9.4. 2 RSC, O 18, r 8. It is not open to the court to raise the matter if the parties themselves do not (Kennett v Brown [1988] 1 WLR 582, 585). 3 See the discussion in Law Revision Committee Fifth Interim Report (Statutes of Limitation) (1936) Cmd 5334, pp 32 - 35. 4 Higgins v Scott (1831) 2 B & A 413, 109 ER 1196. 5 See Re Rownson (1885) 29 ChD 358. 6 See Mills v Fowkes (1839) 5 Bing NC 455, 132 ER 1174. A debt which is statute-barred may not be validly set off against debts owed (Walker v Clements (1850) 15 QB 1046, 117 ER 755 considered in Henriksens Rederi A/S v THZ Rolimpex, The Brede [1974] QB 233, 257). 7 Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553. The consequences of this rule became apparent in Arnold v Central Electricity Generating Board [1988] AC 228, discussed in more detail in para 9.38 below. Note also that by s 29(7) of the 1980 Act an action, once barred by the Act, is not to be revived by any subsequent acknowledgement or payment: see paras 9.10 - 9.11 below. 161
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PART I INTRODUCTION 1. WHY DOES THE
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Consumer Protection Act 1987. 12 Th
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periods applicable to them, 29 they
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whether a period of four or five ye
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have been damaged. 54 The Committee
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it is fair to assume that it reflec
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particularly where a defendant is o
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We apprehend that the law of limita
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1.41 Although, plainly, there are a
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(5) actions on a judgment or arbitr
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SECTION A: THE CURRENT LAW PART II
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TABLE 1 Limitation Periods under th
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Nature of Action Starting Point Len
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performed even after they are first
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promise by the guarantor that the d
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The fact that the damage was not at
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whether the ‘reasonable discovera
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limitation period that commission,
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the starting of time running from t
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had been no violation of the Conven
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has taken all reasonable steps to o
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3.44 The operation of section 14(2)
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(that is, the amputation). The Cour
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assess the intelligence of the plai
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approach taking into account an ind
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But there is a lack of solid and bi
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court will naturally be more inclin
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that the court will wish to exercis
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3.82 The basic provision is section
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enacted in the Latent Damage Act 19
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(2) the identity of the defendant;
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first has knowledge of those facts,
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“once he knew whether or not the
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3.113 The drafting of section 4 has
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(8) A Note on Bailment 3.116 A bail
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PART IV STARTING DATE, LENGTH OF PE
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Property Act 1925 where land is own
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express but implied and constructiv
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with the meaning of fraud in sectio
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was the expression “to recover mo
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from the other beneficiaries who ha
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The situation can therefore arise w
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elation to the apportioned cost) re
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defendant’s unjust enrichment has
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difference between this and the San
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money received will fall within thi
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PART VI STARTING DATE, LENGTH OF PE
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the limitation period running from
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a third party who has dispossessed
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in respect of which time will never
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It is not necessary, however, for t
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(1) where the land has been effecti
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title to the land of the person who
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limitation period is either sixty y
Page 109 and 110: 6.50 Where a lender holds a second
Page 111 and 112: 2. ARBITRATION (1) Arbitration Awar
Page 113 and 114: outside his control; whether the cl
Page 115 and 116: local authority entered on to the l
Page 117 and 118: such actions should be classified a
Page 119 and 120: 7.25 Under section 10(4), where the
Page 121 and 122: expiry of the time limit; whether n
Page 123 and 124: (vi) Merchant Shipping Act 1995 (
Page 125 and 126: Act Nature of Action Starting Point
Page 131 and 132: Act Nature of Action Race Relations
Page 133 and 134: Act Nature of Action Compulsory Pur
Page 135 and 136: Act Nature of Action Companies Act
Page 137 and 138: Act Nature of Action Ibid, Schedule
Page 139 and 140: Act Nature of Action Town and Count
Page 141 and 142: PART VIII FACTORS WHICH POSTPONE TH
Page 143 and 144: (a) the period applicable in accord
Page 145 and 146: ended in 1993. 25 But, as the next
Page 147 and 148: not mean ‘concealed’, since any
Page 149 and 150: supported by the wording of this ph
Page 151 and 152: (4) Proviso to Section 32 8.23 By r
Page 153 and 154: 3. ACKNOWLEDGEMENT AND PART PAYMENT
Page 155 and 156: further agreement by the parties. 8
Page 157 and 158: of discrete debts, and those where
Page 159: (3) Acknowledgements and Part Payme
Page 163 and 164: 2 WHAT THE PLAINTIFF NEEDS TO DO TO
Page 165 and 166: that the defendants were also debar
Page 167 and 168: laches cannot be invoked where ther
Page 169 and 170: emedy, 52 so that, for example, a p
Page 171 and 172: granted. Under section 13(4) of the
Page 173 and 174: actions under Order 15, rule 1(2) o
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Page 177 and 178: 9.37 It appears, therefore, that su
Page 179 and 180: SECTION B: OTHER JURISDICTIONS PART
Page 181 and 182: Law Reform (Miscellaneous Provision
Page 183 and 184: (who may not be immediately identif
Page 185 and 186: for personal injuries; actions for
Page 187 and 188: corresponding English provision. 64
Page 189 and 190: 1980 78 ] are so obvious that the e
Page 191 and 192: 10.40 Under the 1991 Act, an action
Page 193 and 194: 10.44 There are two exceptions to t
Page 195 and 196: (7) Factors Postponing the Running
Page 197 and 198: except in the Northern Territory, w
Page 199 and 200: fraudulent breach of trust or the r
Page 201 and 202: (b) while he is, for a continuous p
Page 203 and 204: causes of action. A confirmation is
Page 205 and 206: action. 206 As in England and in ot
Page 207 and 208: discoverable. 228 Moreover, one sho
Page 209 and 210: (6) Actions in respect of Land 10.7
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5. CANADA 10.85 Statutory rules of
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(3) Latent Damage 10.90 Nearly all
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Central Trust Co v Rafuse, 301 a pr
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the new Limitations Act in Alberta
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periods may apply for the different
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10.112 Below we shall examine three
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product liability, 362 although the
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disguise the nature or the effect o
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general, parties cannot renounce fi
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(vii) A one-year period 425 applies
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prescription is suspended as agains
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the same manner as under the Limita
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10.155 In relation to hidden defect
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at achieving a settlement. 512 Simi
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evision and extension of the ground
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pursued in the tort of nuisance 6 b
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open to argument. It is also arguab
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Deliberate concealment (initial and
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11.22 In discussing the options for
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the chance of a limitation period e
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action does not accrue until the fa
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adopt the model of the Latent Damag
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liability in contract and tort - th
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which the demand was made. We would
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(c) that the injury, assuming liabi
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provision for vicarious liability.
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ecommended a definition of knowledg
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12.43 A final question is the exten
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actual knowledge of information was
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12.56 We are of the view that a sim
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the law of limitations and possibly
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negligently, and that the plaintiff
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a definition of who within an organ
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However, we do not believe that it
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to obtain the relevant information
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12.92 It should also be remembered
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We discuss in a later section the i
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(2) A period of 30 years from the a
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in connection with the provision of
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always protect plaintiffs. But a li
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a form of “disability” sufficie
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It is also provided that unless the
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(b) Supervening disability 12.126 B
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In practice a right of action again
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where the injury is known only to t
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isks precisely this injustice, and
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12.148 This leaves two issues for c
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view that deliberate concealment sh
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equirement is inappropriate. Whilst
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Commission felt that the difficulti
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limitation period by entering into
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those rights. 272 We recognise the
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any, the acknowledgement would have
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5 SHOULD THE COURTS HAVE A DISCRETI
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the actual hardships to both sides
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307 See also Deerness v John Keeble
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(1) Whether the core regime should
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13.10 Our provisional view is that
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of action was an intentional trespa
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is the subject of some controversy.
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or police officer to prove 10 years
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consequences, or has been led to be
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eduction in recent years to the lim
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If consultees do not agree, we ask
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(2) To What Extent should the Core
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if a thief’s identity and whereab
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13.59 It can be strongly argued, ho
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If consultees do not agree, we ask
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7 ACTIONS BY A SUBSEQUENT OWNER OF
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ange of disparate sections: and imp
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action, no loss can have occurred u
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13.95 So, for example, in a constru
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of discoverability, offers sufficie
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usually be the time when the land c
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in full to such actions. This would
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actions, and increasing the coheren
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13.125 The situation should also be
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13.131 If such actions are to be br
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12 ACTIONS ON A JUDGMENT 13.137 Und
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13.143 This protection was not comp
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when the distinction was swept away
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authorities and bodies levying char
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performance, injunctions, or other
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common law remedies. 233 This appro
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action have recommended that (contr
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egime but should continue to apply
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94; the Vaccine Damages Payments Ac
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(2) whether they consider that a li
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If a defendant can waive a limitati
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when it is brought to the knowledge
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the rule in land-related actions so
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great advantage in abolishing these
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which was considered determinative
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398
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(2) Definition of the Date of Disco
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(b) the individual would not be exp
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(2) whether, in addition, the defin
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Should an acknowledgement or part p
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6 ACTIONS FOR CONVERSION Are modifi
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and for dishonestly assisting or pr
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13.155 - 13.157. If consultees do n
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2. WHAT THE PLAINTIFF NEEDS TO DO T
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[13 November 1980] APPENDIX LIMITAT
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4A. Time limit for actions for defa
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varies the amount of damages awarde
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of his estate by virtue of section
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and knowledge that any acts or omis
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able to satisfy a judgment. (8) The
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preceding estate or interest or six
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(b) any land is held upon trust (in
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of trust property under the trust,
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ar, the assurance shall thereupon o
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Acknowledgment and part payment 29
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(4) Where in a case within subsecti
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Discretionary exclusion of time lim
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(3) In acting under this section th
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(as the case may be) by way of coun
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In this subsection "duty" includes
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(5) Subject to subsection (6) below
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SCHEDULES SCHEDULE 1 Provisions wit
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7. Accrual of right of action in ca
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corporation sole the right of actio
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9. (1) Nothing in any provision of
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Limitation of Actions Consultation - Law Commission

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