Limitation of Actions Consultation - Law Commission

12.89 The advantage of a uniform limitation period is that it would increase the
coherence of the law on limitation and make it more accessible (both to lawyers
and the public). The existence of different periods creates additional and
unnecessary confusion and gives plaintiffs an incentive to try to bring their right of
action within one category rather than another. As a matter of principle, unless
there are special characteristics of a particular cause of action which require
exceptional treatment, a uniform period should be applied. We therefore
provisionally recommend the adoption within the core regime of a
uniform period of limitation. We ask consultees whether they agree and, if
not, to say why not.
12.90 However, if a uniform limitation period is to be applied to all causes of action, the
period chosen must take account of the need to do justice to the plaintiff for all
causes of action. The limitation period must allow the plaintiff sufficient time,
once the relevant facts are known, to consider their position, to take legal advice,
and investigate the claim, and to attempt to reach a negotiated settlement with the
defendant before issuing proceedings. Plaintiffs should also have sufficient time to
start preparing their case (though it would be unreasonable to allow the plaintiff all
the time which may be necessary to draft the pleadings required in the action). 118
Though little time may be required for the plaintiff to prepare the case and
negotiate with the defendant in respect of a road traffic accident claim (particularly
where no personal injury is involved), the limitation period must also allow the
plaintiff sufficient time to prepare a complex contractual claim. 119
12.91 It would therefore be unjust to set an unreasonably short limitation period.
However, the length of the limitation period must also take account of the fact
that, whatever period is chosen, time will run under our core regime, from the
point of discoverability, not the date the cause of action accrues. This will in some
cases (and, in particular, in the more complex cases where the facts are not
immediately apparent to the plaintiff) give the plaintiff longer to prepare the action
than, for example, the current period of six years running from the date of accrual
in contract actions.
118 Under the present rules of court, the plaintiff is never in a position where he or she must
issue proceedings and then serve a statement of claim 28 days later giving full details of the
case. The plaintiff has four months from the issue of proceedings before they must be
served on the defendant. Though the time for service of the statement of claim is formally
14 days after the defendant gives notice of intention to defend, where the issues involved in
an action are such that it is not practicable to draft the statement of claim in this time
period, the plaintiff would be likely to be granted an extension of time, by agreement
between the parties, or by order of the court. (This may change under the draft civil
proceedings rules, as the plaintiff must have his or her claim form (including a “statement
of the nature of the claim; and a statement of all the facts on which he relies”) ready to
initiate the action (see Lord Woolf, Access to Justice: Draft Civil Proceedings Rules (1996), para
7.4.)
119 The split here is not so much between the time required for different causes of action, as
between the time required for a straightforward claim and a more complicated case.
Whatever the cause of action, there may be both simple cases which could be prepared with
ease within a few months and highly complicated claims which require years of
investigation.
281