Limitation of Actions Consultation - Law Commission

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propose to alter specific limitation periods laid down in enactments other than the Limitation Act 1980. We provisionally propose to include a “sweeping-up” provision, under which the core regime would apply to all actions unless excluded by another provision of the proposed Bill (or any other enactment). (3) Additional Issues 42 11.20 We provisionally propose that: (1) Subject to the normal rules on the validity of contractual terms, parties would be free to alter the length or the starting date of the initial limitation period by contract. (We seek consultees’ views as to whether they should be able to extend the long-stop or change the long-stop starting date). (2) As under the present law, the limitation period would stop running when proceedings were issued by the plaintiff. (3) Plaintiffs would be able to add new claims in existing actions where they were sufficiently related to the original cause of action, even where the limitation period had expired since the proceedings were started. (4) With one exception relating to conversion, no change should be made to the present law on the effect of the expiry of the limitation period. (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 under 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. 3. THE STRUCTURE OF SECTION C 11.21 Our discussion is divided into three parts. First, in Part XII, we propose a core limitation regime which will apply, in a uniform way, to at least the vast majority of causes of action in tort or contract. Secondly, in Part XIII, we examine the range of the core regime. In particular, we consider whether the core regime can sensibly apply to a number of “problematic” causes of action (for example, actions in restitution, for breach of trust, and land-related actions) and, if not, what the law on limitation should be for those causes of action. A final part (Part XIV) reviews the options for reform in respect of some of the additional issues identified in Part IX above. 42 See Part XIV below. 247
11.22 In discussing the options for reform, we have derived particular help from the reports on the law on limitations by law reform bodies in other common law jurisdictions. 43 We refer extensively to those reports. 43 See para 1.52, n 98 above. 248
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PART I INTRODUCTION 1. WHY DOES THE
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Consumer Protection Act 1987. 12 Th
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periods applicable to them, 29 they
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whether a period of four or five ye
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have been damaged. 54 The Committee
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it is fair to assume that it reflec
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particularly where a defendant is o
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We apprehend that the law of limita
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1.41 Although, plainly, there are a
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(5) actions on a judgment or arbitr
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SECTION A: THE CURRENT LAW PART II
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TABLE 1 Limitation Periods under th
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Nature of Action Starting Point Len
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performed even after they are first
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promise by the guarantor that the d
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The fact that the damage was not at
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whether the ‘reasonable discovera
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limitation period that commission,
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the starting of time running from t
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had been no violation of the Conven
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has taken all reasonable steps to o
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3.44 The operation of section 14(2)
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(that is, the amputation). The Cour
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assess the intelligence of the plai
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approach taking into account an ind
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But there is a lack of solid and bi
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court will naturally be more inclin
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that the court will wish to exercis
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3.82 The basic provision is section
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enacted in the Latent Damage Act 19
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(2) the identity of the defendant;
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first has knowledge of those facts,
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“once he knew whether or not the
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3.113 The drafting of section 4 has
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(8) A Note on Bailment 3.116 A bail
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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
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PART VI STARTING DATE, LENGTH OF PE
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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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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
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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
Page 195 and 196: (7) Factors Postponing the Running
Page 197 and 198: except in the Northern Territory, w
Page 199 and 200: fraudulent breach of trust or the r
Page 201 and 202: (b) while he is, for a continuous p
Page 203 and 204: causes of action. A confirmation is
Page 205 and 206: action. 206 As in England and in ot
Page 207 and 208: discoverable. 228 Moreover, one sho
Page 209 and 210: (6) Actions in respect of Land 10.7
Page 211 and 212: 5. CANADA 10.85 Statutory rules of
Page 213 and 214: (3) Latent Damage 10.90 Nearly all
Page 215 and 216: Central Trust Co v Rafuse, 301 a pr
Page 217 and 218: the new Limitations Act in Alberta
Page 219 and 220: periods may apply for the different
Page 221 and 222: 10.112 Below we shall examine three
Page 223 and 224: product liability, 362 although the
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Page 227 and 228: general, parties cannot renounce fi
Page 229 and 230: (vii) A one-year period 425 applies
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Page 233 and 234: the same manner as under the Limita
Page 235 and 236: 10.155 In relation to hidden defect
Page 237 and 238: at achieving a settlement. 512 Simi
Page 239 and 240: evision and extension of the ground
Page 241 and 242: pursued in the tort of nuisance 6 b
Page 243 and 244: open to argument. It is also arguab
Page 245: Deliberate concealment (initial and
Page 249 and 250: the chance of a limitation period e
Page 251 and 252: action does not accrue until the fa
Page 253 and 254: adopt the model of the Latent Damag
Page 255 and 256: liability in contract and tort - th
Page 257 and 258: which the demand was made. We would
Page 259 and 260: (c) that the injury, assuming liabi
Page 261 and 262: provision for vicarious liability.
Page 263 and 264: ecommended a definition of knowledg
Page 265 and 266: 12.43 A final question is the exten
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Page 269 and 270: 12.56 We are of the view that a sim
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Page 275 and 276: a definition of who within an organ
Page 277 and 278: However, we do not believe that it
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Page 281 and 282: 12.92 It should also be remembered
Page 283 and 284: We discuss in a later section the i
Page 285 and 286: (2) A period of 30 years from the a
Page 287 and 288: in connection with the provision of
Page 289 and 290: always protect plaintiffs. But a li
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Page 293 and 294: It is also provided that unless the
Page 295 and 296: (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
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isks precisely this injustice, and
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12.148 This leaves two issues for c
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view that deliberate concealment sh
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equirement is inappropriate. Whilst
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Commission felt that the difficulti
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limitation period by entering into
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those rights. 272 We recognise the
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any, the acknowledgement would have
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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
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consequences, or has been led to be
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eduction in recent years to the lim
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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
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If consultees do not agree, we ask
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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
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13.95 So, for example, in a constru
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of discoverability, offers sufficie
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usually be the time when the land c
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in full to such actions. This would
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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
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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
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If a defendant can waive a limitati
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when it is brought to the knowledge
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the rule in land-related actions so
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great advantage in abolishing these
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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
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(2) whether, in addition, the defin
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Should an acknowledgement or part p
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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
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of trust property under the trust,
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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
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9. (1) Nothing in any provision of
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Limitation of Actions Consultation - Law Commission

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