Limitation of Actions Consultation - Law Commission

a claim against the adviser; that it appears to be the case that other law reforms
bodies have confined knowledge to knowledge of facts and have not recommended
taking account of knowledge of the law; 99
and that the competing starting date to
date of discoverability is accrual of the cause of action and ignorance of the law is
plainly irrelevant to the latter.
12.65 On the other hand, the major positive argument in favour of taking account of lack
of knowledge of the law is that this is only fair to plaintiffs. A plaintiff who has not
commenced proceedings because he or she could not reasonably have known that
he or she had a legal remedy ought not to fall foul of an initial limitation period.
Furthermore, where a plaintiff has consulted a solicitor or other legal adviser but
has been badly advised, or where there has been a delay in receiving the advice, it
may be argued that the plaintiff should not lose his or her remedy against the
defendant when any claim against the solicitor may be less satisfactory; for
example, the quantum of damages may be lower to take account of added
contingencies and indeed that claim may itself be time-barred.
12.66 In any case, in some circumstances one cannot make a sharp distinction between
knowledge of law and knowledge of fact, so that it will be necessary for the plaintiff
to have some knowledge of law before he or she can properly be described as
having discovered the existence of the cause of action for the purposes of our test
of discoverability. Knowledge of the law is in some cases implicit in the plaintiff’s
knowledge of the act or omission of the defendant giving rise to the cause of
action, and the causal link between the act or omission and the loss suffered by the
plaintiff.
12.67 This is illustrated by the case where the plaintiff has a claim against his solicitor for
giving him negligent advice. The facts relevant to the cause of action (knowledge
of which will trigger the limitation period) will be that the solicitor has acted
99 See para 12.28. The issue has not received much discussion. The Alberta Institute for Law
Reform commented in Limitations, Report for Discussion No 4 (1986):
We take particular objection to deferring the commencement of the discovery
period until the claimant acquires sufficient legal knowledge to know that a claim
would have a reasonable prospect of success. Frequently this will be a very
difficult and subjective issue for even the lawyers and judges involved in a case,
and requiring a court to determine when a claimant, usually a non-lawyer, had
sufficient knowledge of the legal consequences of factual events will further
confound the matter. (para 2.125).
The same views were expressed by the New Zealand Law Commission, Report No 6,
Limitation Defences in Civil Proceedings, NZLC R6 (1988), para 212. However the Ontario
Limitations Act Consultations Group goes further:
What determines the significance of the harm rests not in the quantum of
damages being sought, but in the significance of the harm in the context of
making a legal claim. In other words, the harm is significant when it is first
apparent that legal action may be necessary or appropriate to remedy the harm.
(Recommendations for a New Limitations Act, Report of the Limitations Act
Consultation Group (1991), pp 24 - 25).
There is some Scottish authority to suggest that knowledge of the legal significance of an
injury is necessary to start time running against the pursuer. The Scottish Law Commission
has however recommended that the discoverability formula should exclude such
knowledge. See para 10.14 above.
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