Limitation of Actions Consultation - Law Commission

which the demand was made. We would not wish to undermine section 6. We
should therefore make clear that for the purposes of the core regime we intend to
preserve the current law - including section 6 - governing the accrual of a cause of
action to recover a loan repayable on demand.
12.25 Thirdly, in the case of continuing or recurring torts or breaches of contract the
limitation regime chosen will affect the amount of damages that can be
recovered. 37
Say, for example, D fails to pay an annual charge to P for the use of a
product licensed to him in 1990 for twenty years. P discovers (and could only
discover) the recurring breach of contract in 2002. P brings proceedings in 2004.
Applying the present law, under which the limitation period for contract is six
years from accrual, P would be able to recover charges for the period after, but not
before, 1998. Applying a discoverability starting date (with, let us say, a three year
initial period running from discoverability subject to a long-stop of ten years from
breach) P would be entitled to recover charges for the period from 1994 (before
then the long-stop would, we think, bite). If P ought to have discovered the
recurring breach of contract in 1999, he would (under a three-year discoverability
regime) be able to recover the charges for the period from 2001 onwards. 38
(2) Definition Of The Date Of Discoverability
(a) Introduction
12.26 Our provisional recommendation for a move to "date of discoverability" as the
general commencement point for limitation periods in a core regime renders it
incumbent on us to define "date of discoverability", or the "date of knowledge" of
the plaintiff. According to the current definition of the date of knowledge (used
for personal injury and latent damage claims), account is taken of whether the
plaintiff knows or ought to know particular facts: that is, that the injury or damage
is significant (and significance is defined using the assumptions that the defendant
does not dispute liability and is able to satisfy a judgment), that the damage or
injury in question is attributable to the defendant's breach of duty, and the identity
of the defendant. 39
However, the plaintiff's lack of knowledge that the acts or
omissions of which he complains give rise to a cause of action at law is irrelevant. 40
The plaintiff is fixed with knowledge which he might reasonably have been
expected to acquire including knowledge of those facts which are ascertainable
with the help of expert advice which "it was reasonable for him to seek", unless he
has taken all reasonable steps to obtain and if necessary act on the advice
received. 41
12.27 We discuss below first, what facts should be known before the initial limitation
period is triggered (paragraphs 12.28 to 12.44). The subsequent two sections
discuss what is meant by “actual knowledge” of those facts, and “constructive
37 See paras 3.3 - 3.6, 3.24 - 3.28 above.
38 For an example under the current law of the effect on quantum of damages of a
discoverability approach to limitation, see para 3.28 above.
39 See paras 3.40 - 3.51 and 3.94 - 3.98.
40 Section 14(1); s14A(9). See paras 3.39; 3.95 above.
41 Section 14(3); s14A(10). See paras 3.58 - 3.65; 3.95 above.
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