Limitation of Actions Consultation - Law Commission

the actual hardships to both sides “in a residual class of cases”. 297
Despite this
recommendation, 298
the limitation on the court’s discretion contained in the
Limitation Act 1980 is minimal. Lord Denning noted in Firman v Ellis: 299
Section 2D, as I read it, gives a wide discretion to the court which is not
limited to a “residual class of case” at all. It is not limited to “exceptional
cases”. It gives the court a discretion to extend the time in all cases where
the three-year limitation has expired before the issue of the writ.
This was approved by the House of Lords in Thompson v Brown. 300
12.192 A common law jurisdiction where the proposals for reform of the limitation law
have included a judicial discretion is Western Australia. 301
The Law Reform
Commission of Western Australia has proposed that there should be a “very
narrow discretionary power” which enables a court to disregard either the initial
limitation period or the long-stop period:
The court should be able to order that either period may be extended in
the interests of justice, but should only be able to make such an order in
exceptional circumstances, where the prejudice to the defendant in having
to defend an action after the normal limitation period has expired, and the
general public interest in finality of litigation, are outweighed by other
factors. The plaintiff would have the burden of proving that the conditions
for exercise of discretion in his favour had been met. 302
12.193 It also recommends that the court should be able to take all the circumstances of
the case into account, including a list of factors (which is rather more extensive
than those included in section 33 of the 1980 Act). The aims of the discretion are
to enable the courts to deal with the exceptional case where the plaintiff’s claim
would otherwise be defeated by a limitation period despite the fact that the
damage only became discoverable after the expiry of the long-stop period and, 303
in
297 Law Reform Committee, Twentieth Report (Interim Report on Limitation of Actions: in Personal
Injury Claims) (1974) Cmnd 5630, para 56.
298 Which the government appears to have accepted: see Hansard (HL) 1 May 1975, vol 360,
col 7 - 14.
299 [1978] QB 886.
300 [1981] 1 WLR 744.
301 Two Canadian jurisdictions, Nova Scotia and Manitoba, have enacted legislation providing
for a judicial discretion to disapply the limitation period. Nova Scotia has largely adopted
the provisions of s 33 of the Limitation Act 1980 (See Limitation of Actions Act 1982 RS c
258, s 3(2),(4)). However this provision applies beyond personal injury claims to most
personal actions. See paras 10.94 - 10.95 above. Manitoba also gives the courts a
discretion to grant the plaintiff leave to proceed out of time in some circumstances (subject
to an overall long-stop of 30 years). See Limitation of Actions Act 1987, s 14(1) discussed
at para 10.94 above.
302 Report on Limitation and Notice of Actions, Project No 36 - Part II (1997), para 7.40.
303 The Commission is clearly influenced here by the fact that the introduction of a long-stop
period would bar claims which would otherwise not have been subject to an ultimate
limitation period regardless of the amount of time which passed before the damage
suffered by the plaintiff was discoverable. This would also be a factor in this country in the
case of actions for personal injuries where there is currently no long-stop period.
320