Limitation of Actions Consultation - Law Commission

any, the acknowledgement would have on third parties, 279
though it is arguable
that, after the agreement, the Council was free to deal with the land as its owner
(subject to the rights granted to Mr Tillson by the agreement) just as if its title had
never been extinguished.
12.181 We ask consultees for their views as to whether a contract (for example, a
contractual compromise) can be effective to revive a party’s rights when
those rights would otherwise have been extinguished by the operation of
the law of limitations.
(d) Other issues
12.182 We have discussed above the reform issues, in relation to acknowledgements and
part payments, which seem to us to be the most important. We ought, however, to
address briefly the question of whether any other rules relating to this area are in
need of reform, or whether they are working satisfactorily.
12.183 An acknowledgement must be in writing if it is to restart the limitation period.
This requirement has been in force since before the Limitation Act 1939 was
passed. It could be argued that this requirement is now unnecessary. Very few
contracts are required to be in writing to be effective, and it may be thought
anomalous that a binding contract can be entered into by an oral agreement, but
that a limitation period in respect of claims under that agreement can only be
extended by an acknowledgement in writing delivered to the plaintiff. The
argument for only recognising written acknowledgements is that they promote
certainty. There are some circumstances in which an oral acknowledgement may
be just as reliable as a written acknowledgement (as, for example, where a party to
litigation acknowledges the validity of a debt in open court). However, oral
statements made in less formal circumstances will be far more difficult to prove. A
plaintiff, concerned to extend the limitation period for his claim, may seek to rely
on an “acknowledgement” in an off-hand remark by the defendant made in
circumstances where it may be quite difficult for the defendant, two or three years
later, to remember what he was supposed to have said, still less to question it.
Although we can see the force of the argument that an oral acknowledgement, as
long as it can be proved, ought to have the same force as a written one, we tend to
the view that the law here demands certainty, and that the requirement should
remain. 280
Moreover, the need for certainty would be increased, and the argument
in favour of a writing requirement strengthened, if our provisional
recommendations was accepted so that the scope of the acknowledgement rule
was widened to include claims for unliquidated damages. 281
12.184 We take the provisional view that the requirement that an
acknowledgement must be in writing if it is to restart a limitation period
279 The original defendants to the Council’s action, third parties who claimed to occupy the
land pursuant to a licence granted by Mr Tillson, took no part in the proceedings after Mr
Tillson had been joined as defendant.
280 See also Law Reform Committee, Twenty-First Report (Final Report on Limitation of Actions)
(1977) Cmnd 6923, paras 2.65 - 2.67.
281 See Law Reform Commission of Saskatchewan, Tentative Proposals for Changes in Limitations
Legislation, Part II: The Limitation of Actions Act (1986), p 84.
316