Limitation of Actions Consultation - Law Commission

(c) The person under a disability has a representative adult
12.129 Where the affairs of the plaintiff under a disability are managed by a third party
(such as a parent or guardian in the case of minority, or a guardian appointed
under the Mental Health Act 1983 in the case of other disability) there may be an
argument for making an exception to the general rule that the limitation period is
extended for plaintiffs suffering a disability. Where another person is able to act on
their behalf the person under a disability may suffer no disadvantage by
comparison to other plaintiffs. In practice many actions are brought on behalf of
a person under a disability by a parent acting as next friend. A provision
restricting the extension of time to those who could prove that they were not at the
time the cause of action accrued in the custody of a parent (section 22(d)) 187
was
included in the 1939 Limitation Act. 188
However, the Law Reform Committee
recommended in its Twentieth Report that this provision should be repealed and
there is now no such provision in the 1980 Act. 189
The Committee noted that the
rule as it stood had a number of defects. 190
It was concerned that the rule could
not operate adequately when a parent was the tortfeasor, 191
but more importantly,
it noted that the basic assumption underlying the rule, that “if the minor (or
mental patient) is in the charge of a competent adult, that adult can be trusted to
seek legal advice and, if appropriate, to institute legal proceedings on his behalf”, 192
could be questioned. The experience of the Official Solicitor suggested that “there
were many cases in which infants suffer a loss by default”. Although the
Committee noted that repealing the rule could be expected to increase the
number of stale claims faced by defendants, it gave greater weight to the risk of
injustice to those minors “whose parents and guardians have not properly
discharged their responsibilities”. This conclusion was influenced by the fact that
there was no legal duty on parents to bring proceedings on behalf of their children
(as still appears to be the case today). In any event, the Committee concluded
that:
187 Later s 22(2)(b) of the 1939 Act, following amendments made by the Law Reform
(Limitation of Actions, etc) Act 1954. Strangely, “parent” did not include “guardian” or
any other relation for the purposes of this provision.
188 The provision in question was added to the Limitation Act 1939 by an amendment as the
bill was going through Parliament. It was not recommended by the Law Reform
Committee in the Fifth Interim Report (Statutes of Limitation) (1936) Cmd 5334, which gave
rise to the 1939 Act.
189 It was repealed by the Limitation Act 1975, s 2.
190 Including the fact that a child with parents who were unwilling or unable to take steps on its
behalf was at a disadvantage compared with a child with no parent or guardian, and that
the rule made no provision for the circumstances where the parent or guardian was under a
disability themselves, or died before bringing an action. Law Reform Committee, Twentieth
Report (Interim Report on Limitation of Actions: in Personal Injury Claims) (1974) Cmnd 5630,
see paras 97 - 109.
191 See Twentieth Report (Interim Report on Limitation of Actions: in Personal Injury Claims)
(1974) Cmnd 5630, para 103.
192 Ibid, para 108.
297