Limitation of Actions Consultation - Law Commission

emedy, 52
so that, for example, a plaintiff would not be awarded specific
performance of an agreement after the limitation period for an action for breach of
that agreement had expired. 53
Similarly, where a plaintiff’s rights to land had been
barred at law due to the expiry of a statutory limitation period, a court of equity
would not grant the equivalent equitable remedy. 54
Section 36(1) preserves the
court’s power to apply the limitation periods prescribed in the 1980 Act to
equitable remedies by analogy. This is of limited relevance since the consolidation
and extension of the limitation statutes in the Limitation Act 1939 and the 1980
Act. As noted in Re Diplock 55
the application of a statutory limitation period by
analogy is only relevant where no express provision of the Act applies. 56
One
example of the application of a statutory period by analogy to an equitable remedy
occurs in actions for restitution. Hobhouse J noted in Kleinwort Benson Ltd v
Sandwell Borough Council 57
that it was common ground between the parties that,
so far as section 5 of the 1980 Act applied to an action for money had and
received, under section 36 the same limitation period would apply to the equitable
tracing remedy sought by the bank.
6 BURDEN OF PROOF
9.23 The burden of proof where a limitation defence has been raised by the defendant
is not entirely clear. One might have thought that, as limitation is regarded as a
defence which must be pleaded by the defendant, the burden of proof should be
on the defendant. But this appears not to be the law. 58
9.24 In Cartledge v E Jopling & Sons Ltd, 59
Lord Pearce noted, obiter, that when
limitation becomes an issue because the defendant has pleaded a limitation
defence the burden falls on the plaintiff to prove that the cause of action accrued
within the statutory period. However, he went on to suggest that once the plaintiff
has met this burden “the burden passes to the defendants to show that the
apparent accrual of a cause of action is misleading and that in reality the cause of
action accrued at an earlier date.” This has been variously interpreted to support
the suggestion that, although there is some burden on the plaintiff, the main
52 See Knox v Gye (1872) LR 5 HL 656, 674 and ICF Spry, The Principles of Equitable
Remedies, (4th ed 1990), pp 407 - 415.
53 Firth v Slingsby (1888) 58 LT 481, 483, col 1.
54 Nevarre v Rutton (1714) 2 Eq Cas Abr 9; 22 ER 7 - 8.
55 [1948] Ch 465.
56 In Re Diplock, for example, a claim in equity to recover money wrongly paid to a third party,
which the court would previously have treated as analogous to a common law action for
money had and received (see Re Blake [1932] 1 Ch 54) was held to fall within s 20 of the
Limitation Act 1939, as a claim to part of the personal estate of the deceased person.
57 [1994] 4 All ER 890, 943.
58 Though there is some authority for this proposition: see Clarkson v Modern Foundries Ltd
[1957] 1 WLR 1210, 1213, where Donovan J noted “The present is a case where the whole
injury was caused by a default on the defendants’ part; and the only question is whether, as
to part of it, the Limitation Act can be successfully pleaded. Here the onus is on the
defendants.” But see paras 3.26 - 3.27 above.
59 [1963] AC 758, 784.
169