Limitation of Actions Consultation - Law Commission

instrument used (subject only to general rules governing the fairness of contracts
such as those laid down in the Unfair Contract Terms Act 1977). 7
Our
provisional view is, therefore, that specialties should be subject to our core
regime. We ask consultees whether they agree, and if not, to say why not.
2 ACTIONS UNDER THE LAW REFORM (MISCELLANEOUS
PROVISIONS) ACT 1934
13.7 Under the current law, 8
the death of a potential plaintiff does not extinguish any
cause of action which accrued to that plaintiff. Instead the cause of action survives
for the benefit of the estate. Unless the action includes a claim for damages for
personal injuries suffered by the deceased plaintiff, the death will have no effect on
the limitation period, which will run from the accrual of the cause of action.
Where a claim is being made for damages for personal injuries, the limitation
period will run from the date of death or the date of knowledge of the personal
representative of the deceased, and the court will have a discretion to disapply the
limitation period.
13.8 Under our core regime, the initial limitation period for all claims (not simply
claims in respect of personal injuries) will start from the date the plaintiff - that is
the personal representative of the deceased - knew or ought to have known of the
cause of action. Should the limitation period run from the date of death where
this is later than the date of discoverability, as under the current regime for
personal injuries? The date of discoverability could in some cases precede the
death, where, for example the personal representative has been told of the cause of
action by the deceased. As the personal representative has no power to act on
behalf of the estate until, at the earliest, the date of death - and as the long-stop
would prevent indefinite liability - it would seem reasonable to postpone the start
of the limitation period until the date of death.
13.9 Under our core regime the long-stop period would start from the date of the act or
omission by the defendant which gave rise to the cause of action. This may in
some cases mean that the personal representative has relatively little time to bring
the action, for example where the deceased died after having contracted a latent
industrial disease and the claim relates to this injury. However, this would be in
line with the principle generally adopted by the current law that the estate of the
deceased should not be able to bring an action where the deceased himself would
have been time-barred. The alternative starting point for the long-stop period,
the date of death, could considerably extend the length of time the defendant
remains exposed to potential liability. We do not think that such an extension
would be reasonable.
7 See the discussion in the Law Reform Committee, Twenty-First Report (Final Report on
Limitation of Actions) (1977) Cmnd 6923, paras 2.58 - 2.61. This is not the case in
Scotland, where section 13 Prescription and Limitation (Scotland) Act 1973 invalidates any
provision in an agreement which purports to exclude a prescription limitation period. See
our proposals with respect to agreements to change the limitation periods, paras 14.1 - 14.6
below. See also paras 9.7 - 9.11 above.
8 See paras 3.77 - 3.80 above.
325