Limitation of Actions Consultation - Law Commission

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