Limitation of Actions Consultation - Law Commission

granted. Under section 13(4) of the Patents Act 1949 67
no proceedings could be
commenced for the infringement of a patent before the actual grant of a patent.
However, the House of Lords held that the plaintiff’s cause of action accrued
when the patent was infringed, so that the limitation period started running at that
point. As a result, the limitation period expired before the plaintiff’s right to bring
the action had crystallised on the grant of the patent.
9.27 A similar problem arose in O’Connor v Isaacs. 68
Here the plaintiff was imprisoned
on a number of occasions between 1942 and 1945 for failing to make payments
under a maintenance order which it turned out had been made by magistrates in
excess of their jurisdiction. In 1954 the order was quashed and the plaintiff
brought an action against the magistrates for false imprisonment. Diplock J, with
whom the Court of Appeal agreed, held that the last cause of action accrued in
1945 and that the quashing of the order in 1954 merely fulfilled a requirement
which barred the remedy rather than forming an integral part of the cause of
action. 69
The action was therefore time-barred. 70
There is, however, an important
difference between the facts of this case and Sevcon Ltd v Lucas CAV Ltd, namely
that the fulfilment of the additional requirement which had to be met before the
plaintiff could bring his action for compensation was not outside the plaintiff’s
control. He could have chosen to apply to quash the magistrates’ order some years
before he did. 71
8 ADDING NEW CLAIMS IN EXISTING ACTIONS 72
9.28 We have explained in the Introduction 73
that although it is, on the face of it, a
“purely procedural” matter, we do think it necessary and appropriate to deal,
albeit briefly, with new claims in existing actions in this paper. This is for two
reasons. First, this area is largely governed by section 35 of the Limitation Act
67 Now s 69(2) of the Patents Act 1977.
68 [1956] 2 QB 288, 328 per Diplock J (CA).
69 It would appear that 1954 would have been the operative date if contrary to the position in
this case, the quashing of the order had been an integral part of the cause of action. See also
Coburn v Colledge [1897] 1 QB 702 (CA).
70 The O’Connor case can be distinguished from Musurus Bey v Gadban [1894] 2 QB 352
(CA). Here it was held that the limitation period in respect of an action for debt against a
foreign diplomat did not start to run from the time the diplomat borrowed the money, but
from the time when the diplomat no longer had diplomatic immunity. Until this point the
court held that there was no defendant to the money lender’s cause of action. The loss of
immunity was therefore an integral part of the cause of action, as opposed to a merely
procedural bar. See also Board of Trade v Cayzer, Irvine & Co [1927] AC 610 (HL). (The
reasoning in Musurus Bey v Gadban seems to be inconsistent with the approach to
immunity taken in Empson v Smith [1996] 1 QB 426, 437 per Diplock LJ. See also Shaw v
Shaw [1979] Fam 62).
71 The same applies in Central Electricity Generating Board v Halifax Corporation [1963] AC
785 (where the plaintiffs could have applied for a ministerial determination earlier than they
in fact did), and Hillingdon London Borough Council v ARC Ltd [1997] 3 All ER 506 (where
the plaintiffs could have made an application to the Lands Tribunal considerably earlier
than they did). See paras 7.12 - 7.13 above.
72 See A McGee, Limitation Periods (2nd ed, 1994), Ch 23.
73 See para 1.42 above.
171