Limitation of Actions Consultation - Law Commission

We discuss in a later section the interrelationship between postponement of actions
and long-stops. 129
12.98 A move to a limitation system where the limitation periods for all causes of action
start on the date of discoverability, however defined, would change the balance in
favour of the plaintiff, as opposed to the defendant, and, unless safeguards are
adopted, it would expose defendants in some cases to the risk of liability for an
indefinite period. 130
When an action is brought after many years, there is also a risk
of serious injustice to the defendant, who may not have witnesses available and
who may have little documentary evidence. Such a system can also lack certainty.
For this reason, law reform bodies which have proposed increased use of the date
of discoverability as the commencement point for the limitation period also
propose that there should be one or more long-stops, or ultimate limitation
periods, beyond which no action can be brought, regardless of the plaintiff’s state
of knowledge. For example, the Law Reform Committee, considering the
advisability of a long-stop, concluded that
We consider it important that the law should provide some degree of
finality and we think that any concern lest the long-stop should operate to
deprive plaintiffs of worthwhile cases of action can be met by selecting a
sufficiently lengthy period. 131
12.99 Though the Law Reform Committee had earlier decided that a long-stop
limitation period was not desirable in the case of personal injury claims, 132
it has
since been suggested that the lack of a long-stop limitation period for personal
injury claims and claims by plaintiffs under a disability should be re-examined. 133
Colegrove v Smyth 134
illustrates some of the problems caused. In this case
129 See paras 12.138 - 12.145, 12.149 - 12.150, 12.173 - 12.177 below.
130 One result would be to increase the costs faced by all potential defendants, including the
costs of storing records for an indefinite period, and the costs of maintaining liability
insurance. The availability of insurance over an extended limitation period may well be
limited. See the discussion in Law Reform Committee, Twenty-Fourth Report (Latent
Damage) (1984) Cmnd 9390, para 2.6.
131 Twenty-Fourth Report (Latent Damage) (1984) Cmnd 9390, para 4.11. The Law Reform
Committee was very aware of the problems that would face defendants in the absence of a
long-stop limitation period: that “Defendants may be confronted with allegations of
negligence at an impossibly remote date and be quite unable to meet them either
evidentially or financially. There is also the problem of whether they will have been able to
insure themselves adequately”.
132 Twentieth Report (Interim Report on Limitation of Actions: in Personal Injury Claims) (1974)
Cmnd 5630, para 37. The Law Reform Committee noted that “[The long-stop limitation
period] is open to the objection ... that it is less favourable to plaintiff than [the 1963 Act].
It is also open to the objection that the long-stop limitation period itself will either be too
long to serve any useful purpose in the majority of cases, or too short to cover those cases
with which we are particularly concerned, namely insidious diseases.”
133 See S v W [1995] 1 FLR 862, 867 per Sir Ralph Gibson. See the same judge’s comments in
Headford v Bristol & District Health Authority [1995] PIQR P180, 185: “I agree that the
present state of the statute law, in which no ultimate or long-stop period of limitation is
provided, in any case with reference to a person under a disability, seems to call for
consideration in the light of such cases as this.” See also M Jones, “Limitation Periods and
Plaintiffs Under a Disability - A Zealous Protection?” (1995) 14 CJQ 258, 269.
134 [1994] 5 Med LR 111.
284