Limitation of Actions Consultation - Law Commission

the law of limitations and possibly in other fields as well. 93
Secondly, hardship
could be caused to defendants if the plaintiff was able to obtain an indefinite
extension of the limitation period through ignorance of the law. 94
Instead, the
Committee recommended that the plaintiff’s lack of knowledge of the availability
of a legal remedy should be a factor which the court could take into account in the
exercise of its discretion to disapply the limitation period. It noted that this would
enable the court to do justice in those cases where the delay in bringing
proceedings was wholly due to the plaintiff’s ignorance of the available remedy. 95
12.62 We are not wholly convinced by either of those two reasons. The fiction that
everyone knows the law need not be slavishly adhered to across all aspects of civil
law. Indeed we departed from it in our Report on Restitution in which we
recommended reversal of the common law rule that payments made by mistake of
law (as opposed to fact) cannot be recovered. 96
Moreover, unlike the Law Reform
Committee, we are undertaking a general review of limitation periods and do not
therefore face the problem of carving out an exception for personal injury
limitation periods only.
12.63 At first sight, the second reason given (of creating hardship to defendants through
the possibility of indefinitely extending the limitation period) has greater force. In
particular, what if there were a Court of Appeal or House of Lords decision
overruling past cases so that the law is now that the plaintiff had a substantive
claim whereas previously the general understanding was that he did not? 97
Applying the “declaratory” theory of law (the common law is and always has been
X) a plaintiff would not have knowledge of his rights until that later decision.
However, our core regime, as we shall see below, has two important safeguards for
defendants which might be thought to counteract effectively this risk of hardship
to defendants. The first safeguard is that the knowledge of the plaintiff will include
“constructive knowledge”: what the plaintiff in his circumstances “ought to have
known”. In most circumstances, 98
time will run against a plaintiff who is ignorant
of his or her legal rights because he or she ought to have consulted a solicitor or
other legal adviser. The second safeguard is the imposition of a long-stop. This
removes the risk of an indefinite postponement of the running of time.
12.64 Further arguments in favour of the general stance taken by the Law Reform
Committee include: that taking account of knowledge of the law renders the date
of discoverability less certain; that a plaintiff who has been badly advised may have
93 Law Reform Committee, Twentieth Report (Interim Report on Limitation of Actions: in Personal
Injury Claims) (1974) Cmnd 5630, para 53. See also Central Asbestos Co Limited v Dodd
[1973] AC 518, 549, per Lord Simon of Glaisdale; 556, per Lord Salmon.
94 Law Reform Committee, Twentieth Report (Interim Report on Limitation of Actions: in Personal
Injury Claims) (1974) Cmnd 5630, para 53.
95 Ibid, paras 56 and 69(5).
96 See Restitution: Mistakes of Law and Ultra Vires Public Authority Receipts and Payments
(1994) Law Com No 227, Cm 2731, para 3.12.
97 See Central Asbestos Co Limited v Dodd [1973] AC 518, 549 - 550, per Lord Simon of
Glaisdale.
98 Although not where judicial decisions bring about a departure from the previously held
view of the law.
272