Limitation of Actions Consultation - Law Commission

12.56 We are of the view that a simpler approach to the link between constructive
knowledge and the knowledge of agents is necessary and possible. Applying
normal rules of agency, 84
an agent’s actual knowledge will be imputed to the
principal when the agent has received the information within his authority to act
for the principal. However the normal rules of agency will not impute knowledge
to the principal in two important situations. First, where the plaintiff has not
sought any expert advice and, secondly, where the plaintiff has sought expert
advice but the expert consulted has failed to make the necessary enquiries (or has
failed to pursue the enquiries for a very long period of time). We believe that the
general test set out above - what ought the plaintiff, in his circumstances and with
his abilities, to have known had he acted reasonably - provides a satisfactory
answer in these two situations. That is, a plaintiff who should have sought expert
advice but did not, will have constructive knowledge of those facts that an expert
would probably have acquired. On the other hand, a plaintiff who has sought
expert advice but has been let down, has usually acted reasonably and should not
be fixed with constructive knowledge of information which his adviser should have
obtained but failed to do so.
12.57 We ask consultees whether they agree with our provisional views that:
(1) constructive knowledge should include a large subjective element so
that it should be defined as “what the plaintiff in his circumstances
and with his abilities ought to have known had he acted reasonably.”
(2) no more elaborate definition of constructive knowledge is required.
If consultees do not agree with our provisional views we ask them to
explain why not, and what alternative approach they would prefer.
12.58 For completeness, we should add that the question that was left open by the Court
of Appeal in Spargo v North Essex District Health Authority, 85
of the careful but very
slow solicitor, and which was expressly drawn to our attention by the Court of
Appeal for the purposes of this review, would, we think, be solved by our
provisional proposals. That is, applying our provisional proposals (instead of the
tortuous proviso to section 14(3)), the plaintiff would not be regarded as having
constructive knowledge provided she acted reasonably (which she presumably did
by consulting the solicitor). 86
(e) Should knowledge of the law be relevant?
12.59 Under the present law, lack of knowledge of the law is irrelevant to the date of
knowledge. Hence the emphasis in section 14(1) and 14A (6-8) is on knowledge
of facts. Moreover, it is specifically stated in section 14(1) that “knowledge that
any acts or omissions did or did not, as a matter of law, involve negligence,
nuisance or breach of duty is irrelevant”. An analogous provision, but confined to
84 See para 12.50 above.
85 [1997] PIQR P235. See para 3.64 and in particular n 143 above.
86 Nor would knowledge be imputed to the plaintiff, through the normal rules of agency,
unless and until the solicitor had actual knowledge of the facts: see para 12.50 above.
270