Limitation of Actions Consultation - Law Commission

elation to the initial period, with cases where factors other than the latency of the
damage have prevented the plaintiff from instituting proceedings. 304
Despite the
Law Reform Commission’s expressed desire that the discretion should be very
narrow, it is difficult to see how the discretion, as recommended, is restricted. 305
12.194 We believe that the disadvantages of a judicial discretion discussed above outweigh
the advantages. Experience with the discretion in section 33 of the Limitation Act
1980 demonstrates the difficulty of restricting the discretion. Moreover, the ability
to ask a court to exercise its discretion or the Court of Appeal to review the
exercise of the discretion by the court of first instance means a huge drain on court
resources (as well as the costs for defendants in resisting such applications). There
have, for example, been over 115 appellate decisions on section 33 of the 1980 Act
reported on Lexis. It is very difficult for applications to be ruled out as raising no
arguable case.
12.195 Removing the judicial discretion would also have the advantage of avoiding the
artificial distinction produced by Walkley v Precision Forgings Ltd. 306
In that case it
was held that where a writ is issued within the limitation period, but is not served
in time because of subsequent delay by the plaintiff, the court has no discretion to
disapply the limitation period in respect of a second writ. 307
To distinguish who
can be assisted by the exercise of the judicial discretion between plaintiffs who
delay before issuing the writ, and those who delay afterwards, who cannot be so
assisted, seems harsh and artificial.
12.196 We ask consultees whether they agree with our provisional view that within
our core regime the courts should not have a discretion to disapply an
initial limitation period or a long-stop. If consultees disagree, we ask them
in what circumstances they consider that the courts should have a
discretion to disapply limitation periods.
304 The Commission notes in particular the possibility in child abuse cases that the plaintiff
may be psychologically unable to contemplate bringing proceedings against the defendant
as a result of the damage suffered, and in relation to a case on AIDs infection, the fact that
the plaintiff had physical and mental problems, was concerned at the effect of publicity on
herself and her family and had been advised that no claim had ever succeeded (para 7.36).
305 Those other law reform bodies which have considered introducing a judicial discretion to
disapply a limitation period have rejected the idea. The Alberta Institute of Law Reform
noted “We will not recommend a provision granting the courts discretion to extend a fixed
limitation period beginning with discovery. ... If a discovery period is applicable, a claimant
will not be exposed to the risk that his claim will be barred before he could have discovered
it with the exercise of reasonable diligence. For claims subject to the discovery rule, we will
recommend a limitation period of sufficient duration to give even a relatively
unsophisticated claimant ample time in which to attempt to settle his controversy with the
defendant and to bring a claim when necessary. We are not prepared to go further, for we
believe that to do so would sacrifice the objectives of a limitations system.” (Limitations,
Report for Discussion No 4 (1986), para 2.154). See also the New Zealand Law
Commission, Report No 6, Limitation Defences in Civil Proceedings, NZLC R6 (1988), para
126, the Law Reform Commission of Saskatchewan, Tentative Proposals for Changes in
Limitations Legislation, Part II: The Limitations of Actions Act (1986), p 68. Scotland and the
Republic of Ireland have also rejected the idea of a judicial discretion to disapply limitation
periods. See paras 10.15, 10.19 and 10.38 above.
306 [1979] 1 WLR 606. See para 3.76 above.
321