Limitation of Actions Consultation - Law Commission

proceedings. Additional uncertainty may result from the exercise of the discretion,
as it is impossible to ensure consistency: inevitably, different judges may come to a
different decision on the facts of any case. As noted in Yates v Thakeham Tiles
Ltd, 294
citing Asquith LJ in Bellenden v Satterthwaite: 295
We are here concerned with a judicial discretion, and it is of the essence of
such a discretion that on the same evidence two different minds might
reach widely different decisions without either being appealable. It is only
where the decision exceeds the generous ambit within which reasonable
disagreement is possible, and is, in fact, plainly wrong, that an appellate
body is entitled to interfere.
12.190 We are also concerned that giving the courts a discretion may be to opt out of
making a firm policy choice (which can and ought to be made once-and-for-all)
on certain admittedly difficult questions. We have in mind, for example, that it
would be all too easy (but, in the long-run, unsatisfactory for the legal system) to
steer clear of making a decision on the meaning of “significant cause of action” or
the effect of lack of knowledge of the law.
12.191 Reviews of the law on limitation before the Law Reform Committee, Twentieth
Report considered that a judicial discretion should not be introduced into the law
of limitations, because of the uncertainty this would involve. 296
The Law Reform
Committee itself, while accepting the view that “the matter cannot be left entirely
to the court’s discretion throughout the whole field of limitation in personal injury
cases”, nevertheless recommended that the court should have a discretion to weigh
294 [1995] PIQR P135, P143 (per Wall J). The case concerned the discretion under s 33 of the
1980 Act.
295 [1948] 1 All ER 343, 345.
296 The Law Revision Committee, reporting on the matter in 1936 noted that:
The exercise of such a discretion would no doubt present difficult problems to the
court, and it would not be easy to foresee how it would operate. In so far as it came to
be exercised along well-defined principles, its chief merit - flexibility - would tend to
disappear. On the other hand, if it remained more or less impossible to predict from
one case to another how the discretion of the court was going to be exercised, the
fundamental benefit conferred by statutes of limitation, namely the elimination of
uncertainty, would be prejudiced (Fifth Interim Report (Statutes of Limitation) (1936)
Cmd 5334, p 11).
The Committee chaired by Mr Justice Edmund Davies which reviewed the law on
limitation of actions in cases of personal injury in the wake of Cartledge v E Jopling & Sons
Ltd also rejected the idea of conferring a wide discretion on the courts:
From the practical point of view, an unfettered discretion would encourage optimistic
claimants to institute proceedings which in truth had no chance of success and thus to
waste their own, the defendant’s and perhaps the taxpayer’s money on pointless
litigation. More serious is the objection based on the principle that the law should be
certain and the area of judicial discretion therefore narrowed as far as possible. We
were impressed by the practically unanimous opposition of the legal witnesses to the
conferring on the courts of a wide discretion. We think this opposition is wellfounded:
however conscientiously they may attempt to exercise their discretionary
powers, different judges are bound to have different approaches to cases of apparent
hardship, and to leave their discretionary powers entirely unfettered would, in our
view, lead to undesirable divergences of practice. (Report of the Committee on Limitation
of Actions in Cases of Personal Injury (1962) Cmnd 1829 para 31).
319