Limitation of Actions Consultation - Law Commission

urden falls on the defendant, 60
and as supporting the view that an initial burden is
imposed on the plaintiff, which once discharged, is succeeded by an burden on the
defendant to show that in truth the cause of action arose at an earlier date. 61
In
Driscoll-Varley v Parkside Health Authority 62
Hidden J held that the subsequent
burden on the defendant included, for example, the question of constructive
knowledge. In consequence, once the plaintiff had proved that he or she did not
have actual knowledge of the injury more than three years before proceedings were
issued, the burden of establishing that the plaintiff had constructive knowledge of
the injury at an earlier date fell on the defendant. 63
9.25 The relevant authorities were reviewed in Crocker v British Coal Corporation 64
by
Mance J, who held that the legal burden of proof rests throughout on the plaintiff,
whether the issue is when the cause of action accrued or when the plaintiff first
had knowledge of the facts. 65
He noted that where the plaintiff’s knowledge is an
issue under section 14(3) of the 1980 Act, there may well be an evidential burden
on the defendant, though this did not in his view displace the legal burden of
proof, which remains with the plaintiff.
7 THE “SEVCON” PROBLEM: RESTRICTIONS ON THE
PLAINTIFF’S RIGHT TO SUE
9.26 Although rare, there are situations where, although the cause of action has accrued
and time has started to run, the plaintiff is unable to sue because his right to bring
the proceedings is subject to a further requirement outside his control. The case
of Sevcon Ltd v Lucas CAV Ltd 66
is the classic example of this problem. Here, the
plaintiff’s claim related to the infringement of a patent which had taken place after
the patent specification had been published, but before the patent had been
60 See NV Stoomv Maats “De Maas” v Nippon Yusen Kaisha, The Pendrecht [1980] 2 Lloyd’s
Rep 56, where Parker J suggested that Lord Pearce’s dicta “was such as materially to cut
down the extent of the burden on a plaintiff, as it had been stated by the Court of Appeal,
albeit recognising that there was some burden upon him.”
61 See London Congregational Union Incorporated v Harris and Harriss [1988] 1 All ER 15, per
Ralph Gibson LJ at 30. In the same case, Sir Denys Buckley, agreeing with Ralph Gibson
LJ, described the burden as “shifting” from plaintiff to defendant ([1988] 1 All ER 15, 34.
The concept of a “shifting burden of proof” was also adopted in Driscoll-Varley v Parkside
Health Authority [1991] 2 Med LR 346.
62 [1991] 2 Med LR 346.
63 This seems to have been accepted by the Court of Appeal in Nash v Eli Lilly [1993] 1 WLR
782, 795 - 796. In a passage later described by Mance J as “difficult”, Purchas LJ
commented “If the defendant wishes to rely on a date prior to the three-year period
immediately preceding the issue of the writ, the onus is on the defendant to prove that the
plaintiff had or ought to have had knowledge by that date.”
64 (1996) 29 BMLR 159.
65 The suggestion in Driscoll-Varley v Parkside Health Authority [1991] 2 Med LR 346 that the
burden of proving knowledge is on the defendant was not followed. Cf Parry v Clwyd Health
Authority [1997] PIQR P1, P14, where Colman J said, “The burden of proof of constructive
knowledge is on the defendant.”
66
[1986] 1 WLR 462 (HL). See also General Tire and Rubber Co v Firestone Tyre and Rubber Co
Ltd [1975] 1 WLR 819.
170