Limitation of Actions Consultation - Law Commission

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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
307 See also Deerness v John Keeble and Son Ltd [1983] 2 Lloyd’s Rep 260. 322
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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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12.43 A final question is the exten
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actual knowledge of information was
Page 269 and 270: 12.56 We are of the view that a sim
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Page 275 and 276: a definition of who within an organ
Page 277 and 278: However, we do not believe that it
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Page 281 and 282: 12.92 It should also be remembered
Page 283 and 284: We discuss in a later section the i
Page 285 and 286: (2) A period of 30 years from the a
Page 287 and 288: in connection with the provision of
Page 289 and 290: always protect plaintiffs. But a li
Page 291 and 292: a form of “disability” sufficie
Page 293 and 294: It is also provided that unless the
Page 295 and 296: (b) Supervening disability 12.126 B
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Page 299 and 300: where the injury is known only to t
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Page 303 and 304: 12.148 This leaves two issues for c
Page 305 and 306: view that deliberate concealment sh
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Page 313 and 314: those rights. 272 We recognise the
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Page 317 and 318: 5 SHOULD THE COURTS HAVE A DISCRETI
Page 319: the actual hardships to both sides
Page 323 and 324: (1) Whether the core regime should
Page 325 and 326: 13.10 Our provisional view is that
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Page 329 and 330: is the subject of some controversy.
Page 331 and 332: or police officer to prove 10 years
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Page 335 and 336: eduction in recent years to the lim
Page 337 and 338: If consultees do not agree, we ask
Page 339 and 340: (2) To What Extent should the Core
Page 341 and 342: if a thief’s identity and whereab
Page 343 and 344: 13.59 It can be strongly argued, ho
Page 345 and 346: If consultees do not agree, we ask
Page 347 and 348: 7 ACTIONS BY A SUBSEQUENT OWNER OF
Page 349 and 350: ange of disparate sections: and imp
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Page 353 and 354: 13.95 So, for example, in a constru
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Page 357 and 358: usually be the time when the land c
Page 359 and 360: in full to such actions. This would
Page 361 and 362: actions, and increasing the coheren
Page 363 and 364: 13.125 The situation should also be
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Page 367 and 368: 12 ACTIONS ON A JUDGMENT 13.137 Und
Page 369 and 370: 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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