Limitation of Actions Consultation - Law Commission

the chance of a limitation period expiring before they knew of their cause of
action, the long-stop (and the removal of judicial discretion) gives defendants the
certainty of knowing that no claims can be brought against them 10 (or, in
personal injury claims, 30) years after the relevant act or omission. 2
12.4 We now explore, through the five central elements outlined in paragraph 12.1
above, the features and details of a core regime. Throughout we shall be asking for
consultees’ views.
1 WHEN SHOULD TIME START TO RUN?
(1) Accrual, Discoverability, or Defendant’s Act or Omission?
12.5 Currently, most limitation periods run from one of two dates: the date on which
the cause of action accrues 3
or the date on which the cause of action is first
reasonably discoverable by the plaintiff. 4
The date of discoverability was first
introduced as a starting point in 1963 for actions for (unintentional) personal
injury and has since been utilised in the reforms on negligently caused latent
damage, and the Consumer Protection Act 1987. The introduction of the date of
discoverability as the starting point is a response to the injustice of the plaintiff’s
cause of action becoming time-barred before he or she was aware that there was a
cause of action.
12.6 The move to reasonable discoverability for personal injuries in the Limitation Act
1963 was a response to the House of Lords’ decision in Cartledge v E Jopling &
Sons Ltd, 5
in which it was held that the cause of action for personal injuries
accrued, triggering the limitation period, when the plaintiff first suffered the injury,
irrespective of whether he could have known of it. In the realm of latent damage
(other than personal injury) it appeared that the courts, under Lord Denning’s
2 Where the plaintiff is enforcing European Community law rights in the English courts
(which, in English law, are normally conceptualised as grounded on the tort of breach of
statutory duty) we are satisfied that our provisional proposals do not infringe Community
law which grants procedural autonomy to national legal systems so long as national rules do
not discriminate between EC and domestic rights and do not make EC rights “excessively
difficult” to enforce. Cf C-199/82, Ammistrazione delle Finanze dello Stato v SpA San Giorgio
[1983] ECR 3595, para 14; C-430/93, 431/93, Peterbroeck, Van Campenhout & Cie SCS v
Belgium and Jeroen van Schijndel v Stichtung Pensionenfonds voor Fysiotherapeuten, [1995]
ECR I-4705. This doctrine of “qualified procedural autonomy” permits “reasonable
limitation periods.” See C- 33/76, Rewe-Zentralfinanz eG and Rewe-Zentral AG v
Landwirtschaftskammer für das Saarland, [1976] ECR 1989. See generally M Hoskins,
“Tilting the Balance: Supremacy and National Procedural Rules” (1996) 21 ELR 365.
However, it should be noted that, where a Member State has incorrectly implemented a
directive creating directly effective rights, it cannot itself rely on national limitation periods:
C-208/90, Theresa Emmott v Minister for Social Welfare and the Attorney General, [1991] 1
ECR 4269, and Cannon v Barnsley MBC [1992] IRLR 494.
3 See para 3.1 (Contract); para 3.12 (Tort); para 3.105 (Defamation); para 4.1 (Breach of
Trust); para 4.33 (Actions in respect of personal estate of a deceased person); para 6.4
(Land-related actions); para 6.45 (Recovery of Rent); para 7.1 (Actions on a judgment);
para 7.10 (Specialties); para 7.10 (Money recoverable by statute); para 7.23 (Actions for a
contribution).
4 See para 3.29 (Personal Injuries); para 3.88 (Latent Damage); para 3.101 (Actions under
the Consumer Protection Act 1987).
5 [1963] AC 758.
250