Limitation of Actions Consultation - Law Commission

12.47 There are two aspects to this. First, it is subjective and does not require that the
plaintiff’s actions should be judged against what a reasonable man would have
done. This is welcome in avoiding a blurring of the distinction between actual
knowledge and constructive knowledge, the latter of which does concern what the
plaintiff ought reasonably to have known or to have inferred from the information
available to him or her. Secondly, a plaintiff is regarded as having actual
knowledge well before he or she has absolute certainty in relation to the facts. In
our view, it is correct that the start of the limitation period should not be delayed
until the plaintiff has absolute certainty. 72
In our view, therefore, the approach laid
down in the Spargo case should be supported. It should be stressed, however, that
Spargo dealt with the situation where the plaintiff had gone to a solicitor. We
would not wish to deny that there can be other indicators that a person has such a
firm belief as to constitute actual knowledge.
12.48 We further support the approach in the present law 73
whereby actual knowledge,
once acquired, cannot be lost (so that subsequent negative advice does not stop
time running); while, in contrast, negative advice can prevent actual knowledge
being acquired.
12.49 We ask consultees whether they agree with our provisional views that:
(1) “actual knowledge” should be treated as a straightforward concept
and should not be defined in our proposed statute.
(2) the approach of the Court of Appeal in Spargo v North Essex
District Health Authority should be supported. According to this,
the courts should treat actual knowledge as a subjective concept;
and a plaintiff, who so firmly believes that he or she has a
significant cause of action against the defendant that he or she goes
to a solicitor to seek advice about making a claim, should be
regarded as having actual knowledge.
(3) as under the present law, once actual knowledge has been acquired,
time should run irrespective of subsequent advice to the contrary.
If consultees do not agree with our provisional views we ask them to
explain why not, and what alternative approach they would prefer.
12.50 This seems an appropriate point to add that we would envisage normal rules of
agency applying as regards the acquisition of information. This would mean that
an agent’s knowledge of facts would be imputed to the plaintiff where the agent’s
72 We tend to agree with the policy identified by Brooke LJ in Spargo v North Essex District
Health Authority, “[T]he policy of Parliament, ... is to give the plaintiff who has the requisite
low level of knowledge, three years in which to establish by inquiry whether the identified
injury was indeed probably caused by the identified omission and whether the omission
(identified initially in broad terms) amounted to actionable negligence. The judge’s
approach would be to stop the three years from even starting to run until a much more
advanced stage of the investigation had been completed.” [1997] PIQR P235, P244.
73 See para 3.57.
267