Limitation of Actions Consultation - Law Commission

(2) Acquiescence
9.18 Where the plaintiff has delayed the institution of proceedings, it may be open to
the court to infer that he has acquiesced to the loss of his rights. As described in
Leeds v Amherst 46
If a party, having a right, stands by, and sees another dealing with the
property in a manner inconsistent with that right, and makes no objection
while the act is in progress, he cannot afterwards complain.
9.19 The classic modern illustration of the doctrine is Shaw v Applegate. 47
Here the
defendants had partly used his property for an amusement arcade in breach of a
restrictive covenant with the plaintiff. The plaintiff had not complained about this
for six years, although he knew about it and, in consequence, the defendants had
gone on to buy and install more amusement machinery. The Court of Appeal
held that acquiescence barred the plaintiff’s claim for a prohibitory and mandatory
injunction. But damages in lieu were awarded, thereby showing that acquiescence
can be a slightly wider defence for an injunction than for damages.
9.20 As with laches, the plaintiff must be aware of all the facts relevant to his rights
before he can be said to acquiesce. 48
However, unlike the defence of laches,
acquiescence is not dependent on the plaintiff’s delay but does require the plaintiff
to have given an express or implied representation that he or she will not require
performance of the obligation in question or otherwise insist on his or her rights. 49
This may be inferred from the conduct of the plaintiff. 50
5 APPLICATION OF 1980 ACT TO EQUITABLE REMEDIES BY
ANALOGY
9.21 We have seen that under section 36(1) of the 1980 Act the time limits for actions
for tort, contract, defamation, to enforce a judgment or award, recover money
under an enactment or on a specialty do not apply to any claim for specific
performance or an injunction or for other equitable relief “except in so far as such
time limit may be applied by the court by analogy in like manner as the
corresponding time limit under any enactment repealed by the Limitation Act
1939 was applied before 1 July 1940”. 51
9.22 Before statute law was first consolidated in the Limitation Act 1939, the courts
applied the statutory time limits to cases in equity in certain circumstances.
Where the remedy corresponded to a remedy at law or was awarded in support of
a legal right, a court of equity would apply the time limit applicable to the legal
46 (1846) 2 Ph 117, 41 ER 886, 888.
47 [1977] 1 WLR 970.
48 Re Howlett [1949] 1 Ch 767, 775.
49 ICF Spry, The Principles of Equitable Remedies (4th ed 1990), pp 237 - 240; Meagher,
Gummow and Lehane, Equity: Doctrines and Remedies (3rd ed 1992), paras 3618 - 3619;
Hanbury and Martin, Modern Equity (15th ed 1997), p 647.
50 See Allcard v Skinner (1887) 36 ChD 145.
51 See para 9.12 above, and 13.159 - 13.160 below.
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