Limitation of Actions Consultation - Law Commission

open to argument. It is also arguable that the reliance on a judicial discretion to
override a limitation period (as in an action for personal injuries or defamation or
malicious falsehood) 31
renders the law too uncertain. The existence of this
discretion means that the defendant in such cases is exposed to the risk of legal
proceedings for an indefinite period.
(5) Unfair
11.11 It would seem that the current law does not provide an acceptable balance
between certainty and justice. The problem of latent damage has led to a
discoverability starting date being adopted in some areas but not all areas so that,
for some plaintiffs, a cause of action can be lost within six years of accrual even
though they did not know, and could not reasonably know, of it. On the other
hand, the complete lack of a long-stop in personal injury actions means that
defendants can never be wholly sure that their liability is terminated. 32
11.12 The different treatment afforded to personal injury claims where the injury is
deliberately caused, compared to injuries which are negligently caused, means that
a victim of childhood sexual abuse must bring an action for compensation for that
abuse before the age of 24, against the perpetrator of that abuse. 33
Yet a victim of
sexual abuse may have a longer period to bring a claim against a defendant who
has negligently failed to prevent the abuse. 34
That the limitation period applicable
to actions for personal injury may be less favourable where that injury is inflicted
deliberately than if the injury is inflicted negligently cannot be justified.
(6) Wastes Costs
11.13 The complexity and uncertainty of the existing law means that in many cases the
classification of a particular cause of action for limitation purposes, or whether the
limitation period has expired or not, is disputed between the plaintiff and the
defendant. These disputes need to be resolved in litigation which is subsidiary to
the plaintiff’s main claim, an expensive process for both the plaintiff (or the legal
aid fund) and the defendant. It is also expensive in terms of the court resources
which have to be made available. The giving of a wide discretion to the courts to
extend a limitation period in respect of actions for personal injury (under section
33 of the Limitation Act 1980) and for defamation and malicious falsehood (under
section 32A of the Limitation Act 1980) may be thought particularly wasteful of
costs. For example, there have been over 115 appellate decisions on section 33 of
the 1980 Act reported on Lexis. 35
To give defendants no long-stop in relation to
personal injury claims means that they must retain records for many years for fear
that they may be exposed to claims many years after the act or omission in
30 See Part IV above.
31 Sections 33 and 32A of the 1980 Act: see paras 3.66 - 3.76; 3.106 - 3.107 above.
32 See eg Headford v Bristol & District Health Authority, [1995] PIQR P180. See para 8.4
above.
33 Stubbings v Webb [1993] AC 498; see paras 3.32 - 3.35 above.
34 S v W [1995] 1 FLR 862. See para 3.36 above.
35 See para 12.194 below.
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