Limitation of Actions Consultation - Law Commission

occupier of land had good title to that land as a result of the expiry of a limitation
period. This would create uncertainty in an area of the law where certainty is
particularly important, and where third parties are most likely to need to rely on
the assumption that the defendant’s title cannot be disturbed by a potential
plaintiff after the expiry of a limitation period.
12.177 We provisionally recommend that there should be no reform of the law to
enable an acknowledgement or part payment to revive a claim
notwithstanding the expiry of a limitation period. We ask consultees
whether they agree, or whether they consider that acknowledgements
made after the expiry of a limitation period should revive the plaintiff’s
cause of action (where the expiry of a limitation period serves only to bar
the remedy rather than to extinguish the plaintiff’s claim).
12.178 The current position on acknowledgements can be contrasted with agreements not
to rely on the expiry of the limitation period, or a unilateral waiver by the
defendant of his right to plead the expiry of a limitation period. Either will prove
effective to revive the cause of action.
12.179 The problematic relationship between acknowledgements and contracting out of,
or waiving, limitation periods was demonstrated in Colchester Borough Council v
Smith. 278
An acknowledgement of the title of the Council was made by the
occupier of the land after the expiry of the limitation period which had
extinguished the Council’s title to the land. That acknowledgement was held to be
effective by the Court of Appeal, on the basis that it formed part of an agreement
to settle the dispute between the occupier and the Council, and that it was in the
public interest to enforce such agreements.
12.180 The Court of Appeal was faced with a conflict between two principles: the need to
uphold compromises of litigation, and the policy behind section 29(7) of the 1980
Act and the doctrine of adverse possession, that there should be certainty that,
after the expiry of the limitation period, the possessor of the land is the actual
owner. There are very good reasons to uphold agreements compromising
litigation in cases of adverse possession, given that it is frequently very difficult to
establish when the adverse possession began, so that any proceedings in respect of
the plaintiff’s claim to recover the land may be protracted, and very expensive. On
the other hand, where the agreement purports to acknowledge the plaintiff’s title
after that title has been extinguished by the expiry of the limitation period,
upholding it appears to undermine the policy behind section 29(7) of the 1980
Act. The decision appears to mean that, despite section 29(7), an
acknowledgement of the plaintiff’s claim after the expiry of the limitation period
may revive the plaintiff’s cause of action, even in cases where the expiry of the
limitation period extinguishes the plaintiff’s rights, rather than merely barring his
or her remedy. The Court of Appeal did not have cause to examine what effect, if
278 [1992] Ch 421. See para 9.11 above. The decision has been heavily criticised. See AHR
Brierley, “Adverse Possession: a case of death and regrettable resurrection” [1991] Conv
397 - 404; M Dixon, “Title by adverse possession lost by estoppel” [1991] CLJ 234 - 236
(commenting on the decision of the court at first instance), and M Dixon, “Adverse
Possession-Compromises and Estoppel” [1992] CLJ 420 - 422 (commenting on the
decision of the Court of Appeal).
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