Limitation of Actions Consultation - Law Commission

make an exception in the case of payments in respect of mortgage debts.
However, limiting the effectiveness of part payments so that only the payer was
bound by the part payment, while the limitation period continued to run against
the other occupiers of the property, could give an incentive to mortgagees to bring
foreclosure proceedings sooner than would otherwise be the case. We are of the
view that this justifies according separate treatment to part payments in respect of
mortgages.
12.172 Though we believe that separate rules should continue to apply to actions
in respect of mortgages and for the possession of land, we provisionally
recommend that, otherwise, there should be no difference in the effect on
third parties of part payments as opposed to acknowledgements: both
acknowledgements and part payments should only bind the acknowledgor
or the person making the part payment (or their successor). We ask
consultees whether they agree with this provisional recommendation.
(c) Should an acknowledgement or part payment be capable of reviving a
claim if it is made after a limitation period (whether an initial limitation
period or a long-stop) has already expired?
12.173 The present position is that once a right of action has been barred by the expiry of
a limitation period, no subsequent acknowledgement or payment operates to
revive it. 269
The rule before the Limitation Amendment Act 1980 270
was that an
acknowledgement or payment which was made after the limitation period expired
revived the action provided that the effect of the expiry of the limitation period
was to bar the remedy rather than extinguish the right. This rule was changed on
the recommendation of the Law Reform Committee, on the grounds that it gave
rise to considerable uncertainty, and could trap unwary defendants, as for
example, the inclusion of statute barred debts in a company’s balance sheet
(required by law) could be effective to revive the debts, even though no such
revival was intended. The Law Reform Committee commented that:
We think the rule is somewhat unreal and serves no very useful purpose. If
the debtor and creditor both wish to preserve the former’s liability, they can
do so more easily in some other manner and it seems to us better, and to
make for a greater measure of certainty, that once a debt has become
statute-barred it should remain irrecoverable by action. 271
12.174 The question whether an acknowledgement or part payment should be capable of
reviving a limitation period after its expiry has been vigorously debated among law
reform bodies. Some take the view that the expiry of the limitation period should
extinguish the plaintiff’s rights as well as his or her remedy, and regard it as a
necessarily consequence that acknowledgement or part payment cannot resurrect
269 Section 29(7) of the 1980 Act.
270 Limitation Amendment Act 1980, s 6.
271 Law Reform Committee, Twenty-First Report (Final Report on Limitation of Actions) (1977)
Cmnd 6923, para 2.71.
313