Limitation of Actions Consultation - Law Commission

12.92 It should also be remembered that an important function of limitation periods is to
encourage the plaintiff to start proceedings against the defendant without undue
delay. Setting a limitation period which is too long for the majority of actions will
fail to provide the plaintiff with any incentive to move quickly against the
defendant. 120
12.93 Further, the trends in limitation reform in common law jurisdictions have been to
shorter periods. 121
This is shown by the move to three years in this country for
personal injury claims and the move to three years and then one year in actions for
defamation and malicious prosecution. 122
It is also shown by the view of the
common law reform bodies that a limitation period running from the date of
discoverability should be, at most, three years (under the Alberta Limitation Act
1996 it is two years). 123
This may in part be explained by the fact that improved
communications and information flows enable plaintiffs to discover the existence
of causes of action more readily than was once the case. 124
This has lead to
recognition that a limitation period of six years is too long (even where that period
starts from the accrual of the cause of action). 125
12.94 The exact period to be chosen is obviously to some extent arbitrary, but in our
view it would be appropriate to pick a period which is shorter than the six-year
period which is the basis of the general provisions on contract and tort of the 1980
Act. The three-year period currently found in personal injuries, latent damage and
Consumer Protection Act 1987 actions has the benefit of familiarity. It may
therefore be a suitable limitation period to be applied to causes of action which fall
within the core regime, unless there are specific features about, for example,
contract claims, which require a longer initial limitation period. As we have noted
above, in our view it is more complex cases in any cause of action, rather than a
120 Notably, in some civil law systems, the imposition of a limitation period is seen as being
justified to punish the plaintiff for not acting within a reasonable time. See V Bandrac,
Chapter 8, France, p 147, in E H Hondius (ed), Extinctive Prescription on the Limitation of
Actions: Reports to the XIVth Congress of the International Academy of Comparative Law
(1995).
121 A three year period is applied to personal injuries actions (and in the case of the Northern
Territories to all common law actions (Limitation Act 1981, s 12) by most Australian states
(see Limitation Act 1969, s 18A(2) (New South Wales); Limitation of Actions Act 1974, s
11 (Queensland); Limitations of Actions Act 1936, s 36(1) (South Australia); and
Limitation Act 1974, s 5(1) (Tasmania). In Canadian jurisdictions, a two year period is
preferred (See eg Limitations Act 1996, s 3(1) (Alberta), Limitation Act RSBC 1979 s 3(1)
(British Columbia) and Limitations Act 1995, s 5 (Newfoundland).
122 See para 2.5 above.
123 See s 3. See also Law Reform Commission of Western Australia, Report on Limitation and
Notice of Actions, Project No 36 - Part II (1997), pp 183 - 185; Ontario Limitations Act
Consultations Group, Recommendations for a New Limitations Act, Report of the Limitations
Act Consultation Group (1991), pp 22 - 23; New Zealand Law Commission, Report No 6,
Limitation Defences in Civil Proceedings, NZLC R6 (1988), pp 48 - 63, and in particular para
175.
124 The six year limitation period which applies to most causes of action originated with the six
years for actions on the case prescribed in the Limitation Act 1623. See para 1.8 above.
125 See Law Reform Committee, Twenty-First Report (Final Report on Limitation of Actions)
(1977) Cmnd 6923, para 2.51; New Zealand Law Commission, Report No 6, Limitation
Defences in Civil Proceedings, NZLC R6 (1988), paras 132 - 136.
282