Limitation of Actions Consultation - Law Commission

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12.109 What should be the length of the long-stop period? The few long stop periods currently adopted 149 range from 10 years (for actions under the Consumer Protection Act 1987), through 15 years (under the Latent Damage Act 1986), to 30 years for actions to recover land or money charged on land under the Limitations Act 1980, section 28(4). Other law reform bodies have proposed longstops of 10, 15 or 30 years. 150 12.110 A further alternative would be a long-stop period of 12 years, the period which is now applicable to most land-related claims. If this period was chosen, it would remove the need to consider having a separate long-stop period for land-related actions. 151 It would also have the benefit of familiarity, though it would be inconsistent with the long-stop periods of 15 years and 10 years currently adopted for latent damage claims, and claims under the Consumer Protection Act 1987. 152 12.111 The argument for a long-stop of 10, 12 or 15 years is that it would significantly reduce the risk that defendants would be obliged to litigate extremely stale claims, at a time when they have no evidence with which to defend themselves (records may have been destroyed, witnesses’ memories may have faded, or indeed the witnesses themselves may be dead or untraceable). At the same time, it would provide sufficient time for the majority of plaintiffs to learn of their claim. 153 However, we are concerned that a long-stop of this length would fail to protect numerous plaintiffs suffering injury with a long latency period, such as asbestosis or other forms of pneumoconiosis. In some cases the disease would not have developed within a long-stop period of 15 years from the act or omission of the defendant. 154 In addition, numerous victims of sexual abuse may not be in a position to bring claims against their abusers within this period. 155 To prevent such plaintiffs from bringing an action against defendants by subjecting their claims to a long-stop period of 15 years or less would risk serious injustice to them. We also think that it may be appropriate to give increased protection to personal injury claims, as opposed to claims for property damage or pure economic loss, because they are the most serious. Of course, even a longer period than 15 years would not 149 See paras 3.103, 3.99, 8.3 above. See also the 30 year period applied to actions under the Nuclear Installations Act 1965, s 15(1), though this is the only limitation period for claims under the Act and is therefore, technically, not a long-stop. 150 See para 12.101 above. 151 See paras 13.114 - 13.121 below. 152 In the case of actions under the Consumer Protection Act 1987, the long-stop period of 10 years is prescribed by the Consumer Protection Directive 85/374 EEC, and may not be altered by unilateral legislation by the United Kingdom. 153 It is worth noting that the Law Reform Commission of British Columbia was reporting specifically on the ultimate limitation period of 30 years which had been adopted as long stop for all causes of action except against hospitals, their employees or other medical practitioners in the Limitation Act 1979. It concluded that 30 years was too long to use as a general period, and reduction to 10 years would not in practice bar many meritorious claims (Law Reform Commission of British Columbia, Report on the Ultimate Limitation Period: Limitation Act, Section 8 (1990), p 31). 154 As would have been the case in Guidera v NEI Projects (India) Limited (unreported, 30 January 1990) (CA), where the plaintiff did not develop symptoms of asbestosis until 23 years after he had been exposed to asbestos dust. 155 See further paras 13.17 - 13.37 below. 289
always protect plaintiffs. But a line has to be drawn somewhere if one is to have a long-stop: 156 any long-stop must, at some point, cut across the “discoverability” starting point so as to prevent actions by those who could not reasonably know of their injury. We believe that a long-stop of 30 years may be more appropriate for personal injury claims so as to enable most, if not all, 157 cases of latent personal injury to proceed. 12.112 The main options therefore seem to be as follows: (1) a long-stop limitation period of 15 years in all cases (including personal injury); (2) a long-stop limitation period of 12 years in all cases (including personal injury); (3) a long-stop limitation period of 10 years in all cases (including personal injury); (4) a long-stop limitation period of 15 years in all cases except for personal injury which would be subject to a long-stop period of 30 years; (5) a long-stop limitation period of 12 years in all cases except for personal injury which would be subject to a long-stop period of 30 years; (6) a long-stop limitation period of 10 years in all cases except for personal injury which would be subject to a long-stop period of 30 years. 12.113 Our provisional view is that, under our core regime, there should be a uniform long-stop period of 10 years, applicable to all actions other than for personal injury. We consider that personal injury claims should be subject to a long-stop period of 30 years. We ask consultees whether they agree. If not, we ask them whether they would prefer a long-stop of 12 years, or 15 years, for non-personal injury claims. 4 FACTORS EXTENDING THE LIMITATION PERIOD 12.114 We should emphasise at the outset that, although we are considering factors extending the limitation period as part of our examination of a core limitation regime, the factors are such that we would wish our provisional recommendations regarding them to apply generally within the law of limitations. 156 An alternative strategy is not to have a long-stop for personal injury claims: see para 12.103 above. 157 A 30-year long-stop would have ruled out claims by the plaintiffs in Arnold v Central Electricity Generating Board [1988] AC 228 (mesothelioma); and Keenan v Miller Insulation and Engineering Ltd (unreported, 8 December 1987) (asbestosis). See NJ Wikely, “Industrial Disease and the Onset of Damage” (1989) 105 LQR 19. 290
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PART I INTRODUCTION 1. WHY DOES THE
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Consumer Protection Act 1987. 12 Th
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periods applicable to them, 29 they
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whether a period of four or five ye
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have been damaged. 54 The Committee
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it is fair to assume that it reflec
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particularly where a defendant is o
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We apprehend that the law of limita
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1.41 Although, plainly, there are a
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(5) actions on a judgment or arbitr
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SECTION A: THE CURRENT LAW PART II
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TABLE 1 Limitation Periods under th
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Nature of Action Starting Point Len
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performed even after they are first
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promise by the guarantor that the d
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The fact that the damage was not at
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whether the ‘reasonable discovera
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limitation period that commission,
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the starting of time running from t
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had been no violation of the Conven
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has taken all reasonable steps to o
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3.44 The operation of section 14(2)
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(that is, the amputation). The Cour
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assess the intelligence of the plai
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approach taking into account an ind
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But there is a lack of solid and bi
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court will naturally be more inclin
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that the court will wish to exercis
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3.82 The basic provision is section
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enacted in the Latent Damage Act 19
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(2) the identity of the defendant;
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first has knowledge of those facts,
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“once he knew whether or not the
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3.113 The drafting of section 4 has
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(8) A Note on Bailment 3.116 A bail
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PART IV STARTING DATE, LENGTH OF PE
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Property Act 1925 where land is own
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express but implied and constructiv
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with the meaning of fraud in sectio
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was the expression “to recover mo
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from the other beneficiaries who ha
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The situation can therefore arise w
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elation to the apportioned cost) re
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defendant’s unjust enrichment has
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difference between this and the San
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money received will fall within thi
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PART VI STARTING DATE, LENGTH OF PE
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the limitation period running from
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a third party who has dispossessed
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in respect of which time will never
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It is not necessary, however, for t
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(1) where the land has been effecti
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title to the land of the person who
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limitation period is either sixty y
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6.50 Where a lender holds a second
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2. ARBITRATION (1) Arbitration Awar
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outside his control; whether the cl
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local authority entered on to the l
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such actions should be classified a
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7.25 Under section 10(4), where the
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expiry of the time limit; whether n
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(vi) Merchant Shipping Act 1995 (
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Act Nature of Action Starting Point
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Act Nature of Action Race Relations
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Act Nature of Action Compulsory Pur
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Act Nature of Action Companies Act
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Act Nature of Action Ibid, Schedule
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Act Nature of Action Town and Count
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PART VIII FACTORS WHICH POSTPONE TH
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(a) the period applicable in accord
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ended in 1993. 25 But, as the next
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not mean ‘concealed’, since any
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supported by the wording of this ph
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(4) Proviso to Section 32 8.23 By r
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3. ACKNOWLEDGEMENT AND PART PAYMENT
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further agreement by the parties. 8
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of discrete debts, and those where
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(3) Acknowledgements and Part Payme
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PART IX ADDITIONAL ISSUES 1 WHAT HA
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2 WHAT THE PLAINTIFF NEEDS TO DO TO
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that the defendants were also debar
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laches cannot be invoked where ther
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emedy, 52 so that, for example, a p
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granted. Under section 13(4) of the
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actions under Order 15, rule 1(2) o
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the court from allowing the action
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9.37 It appears, therefore, that su
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SECTION B: OTHER JURISDICTIONS PART
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Law Reform (Miscellaneous Provision
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(who may not be immediately identif
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for personal injuries; actions for
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corresponding English provision. 64
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1980 78 ] are so obvious that the e
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10.40 Under the 1991 Act, an action
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10.44 There are two exceptions to t
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(7) Factors Postponing the Running
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except in the Northern Territory, w
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fraudulent breach of trust or the r
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(b) while he is, for a continuous p
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causes of action. A confirmation is
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action. 206 As in England and in ot
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discoverable. 228 Moreover, one sho
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(6) Actions in respect of Land 10.7
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5. CANADA 10.85 Statutory rules of
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(3) Latent Damage 10.90 Nearly all
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Central Trust Co v Rafuse, 301 a pr
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the new Limitations Act in Alberta
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periods may apply for the different
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10.112 Below we shall examine three
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product liability, 362 although the
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disguise the nature or the effect o
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general, parties cannot renounce fi
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(vii) A one-year period 425 applies
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prescription is suspended as agains
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the same manner as under the Limita
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10.155 In relation to hidden defect
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Page 257 and 258: which the demand was made. We would
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Page 263 and 264: ecommended a definition of knowledg
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Page 337 and 338: If consultees do not agree, we ask
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(2) To What Extent should the Core
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if a thief’s identity and whereab
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13.59 It can be strongly argued, ho
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If consultees do not agree, we ask
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7 ACTIONS BY A SUBSEQUENT OWNER OF
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ange of disparate sections: and imp
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action, no loss can have occurred u
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13.95 So, for example, in a constru
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of discoverability, offers sufficie
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usually be the time when the land c
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in full to such actions. This would
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actions, and increasing the coheren
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13.125 The situation should also be
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13.131 If such actions are to be br
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12 ACTIONS ON A JUDGMENT 13.137 Und
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13.143 This protection was not comp
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when the distinction was swept away
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authorities and bodies levying char
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performance, injunctions, or other
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common law remedies. 233 This appro
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action have recommended that (contr
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egime but should continue to apply
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94; the Vaccine Damages Payments Ac
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(2) whether they consider that a li
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If a defendant can waive a limitati
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when it is brought to the knowledge
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the rule in land-related actions so
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great advantage in abolishing these
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which was considered determinative
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398
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(2) Definition of the Date of Disco
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(b) the individual would not be exp
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(2) whether, in addition, the defin
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Should an acknowledgement or part p
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6 ACTIONS FOR CONVERSION Are modifi
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and for dishonestly assisting or pr
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13.155 - 13.157. If consultees do n
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2. WHAT THE PLAINTIFF NEEDS TO DO T
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[13 November 1980] APPENDIX LIMITAT
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4A. Time limit for actions for defa
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varies the amount of damages awarde
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of his estate by virtue of section
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and knowledge that any acts or omis
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able to satisfy a judgment. (8) The
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preceding estate or interest or six
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(b) any land is held upon trust (in
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of trust property under the trust,
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ar, the assurance shall thereupon o
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Acknowledgment and part payment 29
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(4) Where in a case within subsecti
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Discretionary exclusion of time lim
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(3) In acting under this section th
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(as the case may be) by way of coun
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In this subsection "duty" includes
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(5) Subject to subsection (6) below
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SCHEDULES SCHEDULE 1 Provisions wit
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7. Accrual of right of action in ca
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corporation sole the right of actio
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9. (1) Nothing in any provision of
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Limitation of Actions Consultation - Law Commission

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