Limitation of Actions Consultation - Law Commission

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(5) Where the plaintiff’s right to sue is subject to a restriction, the running of time for the purpose of the initial limitation period and the long-stop, should be suspended from the date the plaintiff has done all that he or she could do to lift that restriction. (6) In general, the burden of proof on limitation should continue to be on the plaintiff. (7) Our provisionally proposed legislation should apply to causes of action accruing before the legislation commences, except where the cause of action has been barred by the expiry of a limitation period by the provisions of a previous Act, or proceedings have been instituted in respect of a cause of action before the commencement of the provisionally proposed Act. 7. ACKNOWLEDGEMENTS 1.52 The law on limitations has been the subject of considerable investigation by law reform bodies in other jurisdictions. The high quality, and wide-ranging scope, of the reports of these bodies has been of great assistance to us in formulating our own proposals. 98 We are grateful to Professor Andrew McGee, Professor of Business Law at the University of Leeds for preparatory work done in relation to this Consultation Paper; and to Donald Bishop, Tony Blackler, Professor Phillip Capper, Frances Paterson, Jennie Price and the Construction Industry Council for giving us their views on the limitation problems encountered in the construction industry. 99 We are also grateful to the following for their help: Sir Brian Neill; Michael Brindle QC, Peter Goldsmith QC, Lord Goodhart QC, Michael Lerego QC, Kim Lewison QC, Peter Scott QC, Andrew Smith QC, Nicholas Underhill QC, Stephen Moriarty, Marcus Smith; the Civil Litigation Committee of the Law Society, Tim Archer of Richards Butler, Lindsay Marr of Freshfields, David Natali of Herbert Smith, Anthony Pugh Thomas and Haydn Puleston Jones of the City of London Law Society; Morys Davies, Legal Adviser and Solicitor to the Crown Estates Commissioners, Gisela Davis, Ministry of Agriculture, Fisheries and Food, James Furber, Solicitor to the Duchy of Cornwall, SM Jones, Deputy Solicitor to the Church Commissioners, Gwyneth Hughes, Ministry of Defence, MK Ridley, Duchy of Lancaster Office, and the Treasury Solicitor’s Department. 98 See in particular Alberta Law Reform Institute, Limitations, Report No 55 (1989) (the recommendations of which have now been enacted in Alberta’s Limitation Act 1996 c L-15.1 (yet to be proclaimed)); New Zealand Law Commission, Report No 6, Limitation Defences in Civil Proceedings, NZLC R6 (1988); Law Reform Commission of British Columbia, Report on the Ultimate Limitation Period: Limitation Act, Section 8 (1990); Ontario Limitations Act Consultations Group, Recommendations for a New Limitations Act, Report of the Limitations Act Consultation Group (1991); and Law Reform Commission of Western Australia, Report on Limitation and Notice of Actions, Project No 36 - Part II (1997). 99 See especially paras 12.17, 12.106, 12.151 - 12.153, 13.84 - 13.98 below. 20
SECTION A: THE CURRENT LAW PART II STARTING DATE, LENGTH OF PERIOD, DISCRETION TO DISAPPLY AND LONG- STOP: INTRODUCTION 2.1 In Parts III-VII we examine the present law on the four linked issues of: the starting date of a limitation period; the length of the limitation period; whether there is a judicial discretion to disapply the limitation period; and whether there is an overriding long-stop. We also include reference to where there is no limitation period. 2.2 The four issues of starting date, length, discretion to disapply and long-stop are linked in the sense that the law’s approach to one of those issues can have a “knock-on” effect on its approach to the other issues. For example, a rule that time does not start to run until the cause of action is first reasonably discoverable will tend to delay the running of time as opposed to a rule that time starts to run on the accrual of the cause of action. But this may be offset to some extent by the imposition of a shorter limitation period. Again, a shorter limitation period may be supplemented by a judicial discretion to disapply the limitation period. Alternatively the impact of a discoverability starting point may be softened by imposing a long-stop running from the date of the defendant’s conduct which will bar the action after a much longer period than the (initial) limitation period. 2.3 The law’s approach to these four main issues requires a careful balancing of the interests of plaintiffs and defendants and the state. It constitutes the central policy “battle-ground” in formulating our proposals for reform. 2.4 Most (initial) limitation periods run either from the date when the cause of action accrues or from the date when the existence of the cause of action is first reasonably discoverable by the plaintiff, though some have their own sui generis starting date. 2.5 The lengths of the various periods are to a large extent a matter of historical accident. 1 They largely vary between one and twelve years. The six year periods were found originally in the Limitation Act 1623 and have remained unchanged ever since. Most of the twelve-year periods were originally greater, mostly twenty years, and have been reduced as part of the general trend towards shorter time periods in land law. 2 The three-year period for personal injuries dates from 1954. 3 1 See, generally paras 1.6 - 1.21 above. 2 See M Dockray “Why do we need Adverse Possession” [1985] Conv 272. A comparison may be drawn with the gradual reduction in the period for which a vendor must show title from sixty years to the present fifteen years: Law of Property Act 1925, s 44(1), as amended by the Law of Property Act 1969, s 23. 3 The Law Reform (Limitations of Actions, etc) Act 1954, s 2. 21
Page 1 and 2: PART I INTRODUCTION 1. WHY DOES THE
Page 3 and 4: Consumer Protection Act 1987. 12 Th
Page 5 and 6: periods applicable to them, 29 they
Page 7 and 8: whether a period of four or five ye
Page 9 and 10: have been damaged. 54 The Committee
Page 11 and 12: it is fair to assume that it reflec
Page 13 and 14: particularly where a defendant is o
Page 15 and 16: We apprehend that the law of limita
Page 17 and 18: 1.41 Although, plainly, there are a
Page 19: (5) actions on a judgment or arbitr
Page 23 and 24: TABLE 1 Limitation Periods under th
Page 25 and 26: Nature of Action Starting Point Len
Page 27 and 28: performed even after they are first
Page 29 and 30: promise by the guarantor that the d
Page 31 and 32: The fact that the damage was not at
Page 33 and 34: whether the ‘reasonable discovera
Page 35 and 36: limitation period that commission,
Page 37 and 38: the starting of time running from t
Page 39 and 40: had been no violation of the Conven
Page 41 and 42: has taken all reasonable steps to o
Page 43 and 44: 3.44 The operation of section 14(2)
Page 45 and 46: (that is, the amputation). The Cour
Page 47 and 48: assess the intelligence of the plai
Page 49 and 50: approach taking into account an ind
Page 51 and 52: But there is a lack of solid and bi
Page 53 and 54: court will naturally be more inclin
Page 55 and 56: that the court will wish to exercis
Page 57 and 58: 3.82 The basic provision is section
Page 59 and 60: enacted in the Latent Damage Act 19
Page 61 and 62: (2) the identity of the defendant;
Page 63 and 64: first has knowledge of those facts,
Page 65 and 66: “once he knew whether or not the
Page 67 and 68: 3.113 The drafting of section 4 has
Page 69 and 70: (8) A Note on Bailment 3.116 A bail
Page 71 and 72:
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
Page 93 and 94:
PART VI STARTING DATE, LENGTH OF PE
Page 95 and 96:
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
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6.50 Where a lender holds a second
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2. ARBITRATION (1) Arbitration Awar
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outside his control; whether the cl
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local authority entered on to the l
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such actions should be classified a
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7.25 Under section 10(4), where the
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expiry of the time limit; whether n
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(vi) Merchant Shipping Act 1995 (
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Act Nature of Action Starting Point
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Page 129 and 130:
Page 131 and 132:
Act Nature of Action Race Relations
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Act Nature of Action Compulsory Pur
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Act Nature of Action Companies Act
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Act Nature of Action Ibid, Schedule
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Act Nature of Action Town and Count
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PART VIII FACTORS WHICH POSTPONE TH
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(a) the period applicable in accord
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ended in 1993. 25 But, as the next
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not mean ‘concealed’, since any
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supported by the wording of this ph
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(4) Proviso to Section 32 8.23 By r
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3. ACKNOWLEDGEMENT AND PART PAYMENT
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further agreement by the parties. 8
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of discrete debts, and those where
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(3) Acknowledgements and Part Payme
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PART IX ADDITIONAL ISSUES 1 WHAT HA
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2 WHAT THE PLAINTIFF NEEDS TO DO TO
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that the defendants were also debar
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laches cannot be invoked where ther
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emedy, 52 so that, for example, a p
Page 171 and 172:
granted. Under section 13(4) of the
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actions under Order 15, rule 1(2) o
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the court from allowing the action
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9.37 It appears, therefore, that su
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SECTION B: OTHER JURISDICTIONS PART
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Law Reform (Miscellaneous Provision
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(who may not be immediately identif
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for personal injuries; actions for
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corresponding English provision. 64
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1980 78 ] are so obvious that the e
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10.40 Under the 1991 Act, an action
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10.44 There are two exceptions to t
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(7) Factors Postponing the Running
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except in the Northern Territory, w
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fraudulent breach of trust or the r
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(b) while he is, for a continuous p
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causes of action. A confirmation is
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action. 206 As in England and in ot
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discoverable. 228 Moreover, one sho
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(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
Page 245 and 246:
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
Page 257 and 258:
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
Page 267 and 268:
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
Page 301 and 302:
isks precisely this injustice, and
Page 303 and 304:
12.148 This leaves two issues for c
Page 305 and 306:
view that deliberate concealment sh
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equirement is inappropriate. Whilst
Page 309 and 310:
Commission felt that the difficulti
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limitation period by entering into
Page 313 and 314:
those rights. 272 We recognise the
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any, the acknowledgement would have
Page 317 and 318:
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
Page 333 and 334:
consequences, or has been led to be
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eduction in recent years to the lim
Page 337 and 338:
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
Page 345 and 346:
If consultees do not agree, we ask
Page 347 and 348:
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
Page 353 and 354:
13.95 So, for example, in a constru
Page 355 and 356:
of discoverability, offers sufficie
Page 357 and 358:
usually be the time when the land c
Page 359 and 360:
in full to such actions. This would
Page 361 and 362:
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
Page 377 and 378:
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
Page 387 and 388:
If a defendant can waive a limitati
Page 389 and 390:
when it is brought to the knowledge
Page 391 and 392:
the rule in land-related actions so
Page 393 and 394:
great advantage in abolishing these
Page 395 and 396:
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
Page 404 and 405:
(2) whether, in addition, the defin
Page 406 and 407:
Should an acknowledgement or part p
Page 408 and 409:
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
Page 432 and 433:
of trust property under the trust,
Page 434 and 435:
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
Page 456:
9. (1) Nothing in any provision of
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