Limitation of Actions Consultation - Law Commission

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should remain. “Writing” for these purposes would include any recording by any means of a representation of words, symbols or numbers, whether recorded by the acknowledgor or the recipient of the acknowledgement. 282 We ask consultees (1) whether they agree with our provisional view that only acknowledgements in writing should be effective to restart a limitation period? (2) whether they think that oral acknowledgements should in some, but not all, circumstances extend a limitation period, and if so, in what circumstances they would recognise an oral acknowledgement as having this effect? 12.185 In Part VIII of this paper, we touched on some other aspects of the law on acknowledgements and part payments which could give rise to difficulty. These include: (i) exactly what an acknowledgement must contain, and the extent to which a denial of liability will render a statement incapable of being an acknowledgement; 283 (ii) the effect of an acknowledgement as to part only of an alleged debt, or a payment expressed to relate to part only of an alleged debt; 284 (iii) the effect of an acknowledgement or part payment where the debtor is claiming a set-off or counterclaim; 285 (iv) the extent of an agent’s power to give an acknowledgement; 286 and (v) the extent to which there is a payment, for limitation purposes, when a creditor is willing to treat the debtor as if a payment has been made, even though there has been no actual payment. 287 12.186 We are doubtful whether these, or any other questions related to acknowledgements and part payments, give rise to serious problems. Our provisional view is, therefore, that, other than the changes which we have provisionally recommended above, the law on acknowledgements and part payments is not in need of reform. We ask consultees if they agree. If consultees disagree, they are invited to tell us of any problems in the existing law and of the reforms which they consider desirable. 282 This definition of “writing” is derived from Digital Information and Requirements of Form, Report of the Legislative Working Party, Society for Computers & Law (May 1997). 283 See paras 8.33 - 8.35 above. 284 See paras 8.34, 8.37 above. 285 See para 8.35 above. 286 See paras 8.42 - 8.43 above. 287 As in Maber v Maber (1867) LR 2 Exch 153. See para 8.40 above. 317
5 SHOULD THE COURTS HAVE A DISCRETION TO DISAPPLY OR EXCLUDE A LIMITATION PERIOD? 12.187 Under the Limitation Act 1980, 288 the courts are given a discretion to disapply the limitation period in an action for personal injuries 289 or for defamation, 290 if “it appears to the court that it would be equitable to allow an action to proceed” having regard to the degree to which the limitation period prejudices the plaintiff and a decision to disapply the limitation period would prejudice the defendant. The court is obliged to have regard to all the circumstances of the case, and in particular to the factors identified in sections 33 (for personal injuries) and 32A (for defamation and malicious falsehood). Although the discretion is “structured” by the factors specified to be taken into account, it is very wide, and has indeed been described as “unfettered”. 291 12.188 The advantage of including a judicial discretion to disapply or exclude the (initial) limitation period is that it allows flexibility. A discretion to disapply or exclude the limitation period (running from the date of discoverability) enables the court to take into account factors other than those allowed for in the definition of the date of discoverability which have prevented the plaintiff from bringing proceedings before the expiry of the limitation period. 292 Though the plaintiff may have had full knowledge of the facts giving raise to the proceedings, there may, perhaps, be circumstances where the plaintiff’s conduct in not bringing proceedings before the end of the limitation period was excusable. 293 The existence of a judicial discretion enables the court to prevent injustice to plaintiffs in such a position. The argument for a discretion to exclude the long-stop limitation period is very similar but in particular, any long-stop period of limitation will in some cases mean that the plaintiff’s case is time-barred before he or she is in a position to take proceedings against the defendant (in some cases because the plaintiff could not reasonably know of the facts constituting the cause of action). If there is a judicial discretion to exclude the long-stop period, it is possible to prevent injustice to such plaintiffs. 12.189 The primary disadvantages of a discretion to disapply or exclude the initial limitation period or the long-stop period are that any judicial discretion will to some extent subvert the purposes of a limitation system: there will no longer be certainty on the length of a particular limitation period. No potential defendant would be able to rely on the expiry of the limitation period as preventing further 288 Discussed in paras 3.66 - 3.76; 3.106 - 3.107 above. We have also discussed provisions in other statutes which confer a judicial discretion to exclude a limitation period: see paras 7.28 - 7.39 above. 289 Section 33 of the 1980 Act. 290 Section 32A, inserted by the Defamation Act 1996. 291 Thompson v Brown [1981] 1 WLR 744, 752 per Lord Diplock; Donovan v Gwentoys Ltd [1990] 1 WLR 472, 477. 292 As is the case with the current discretion afforded to the courts under s 33 of the Limitation Act 1980, which permits the courts to take into account the plaintiff’s lack of awareness of their legal remedy, or a supervening disability. See paras 3.68, n 155; 3.72 - 3.75. 293 As in Halford v Brookes [1991] 3 All ER 559, where the reason the plaintiff had failed to bring proceedings earlier was because she had been advised by her solicitor and counsel that she did not have a claim. 318
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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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at achieving a settlement. 512 Simi
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evision and extension of the ground
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pursued in the tort of nuisance 6 b
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open to argument. It is also arguab
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Deliberate concealment (initial and
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11.22 In discussing the options for
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the chance of a limitation period e
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action does not accrue until the fa
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adopt the model of the Latent Damag
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liability in contract and tort - th
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which the demand was made. We would
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(c) that the injury, assuming liabi
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provision for vicarious liability.
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ecommended a definition of knowledg
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Page 277 and 278: However, we do not believe that it
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Page 293 and 294: It is also provided that unless the
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Page 337 and 338: If consultees do not agree, we ask
Page 339 and 340: (2) To What Extent should the Core
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Page 345 and 346: If consultees do not agree, we ask
Page 347 and 348: 7 ACTIONS BY A SUBSEQUENT OWNER OF
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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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