Limitation of Actions Consultation - Law Commission

common law remedies. 233
This approach is supported in other jurisdictions. 234
It
would also have the merit of avoiding the need to decide the question - on which,
as we have seen, there is some confusion - of the extent to which statutory
limitation periods are to be applied by analogy. We ask consultees whether they
agree with our provisional view that (subject to the question dealt with in
the next two paragraphs) where the core regime applies to common law
remedies for a cause of action, it should also apply to equitable remedies
for that cause of action. If consultees do not agree, we ask them how they
think such equitable remedies should be dealt with for limitation
purposes.
13.166 However a difficulty with applying the core regime is that, in some contexts,
specific performance will not be denied for laches however long the delay by the
plaintiff. This appears to be a result of the maxim “equity treats as done that
which ought to be done” so that the plaintiff is treated, in equity, as having already
obtained what was promised. 235
In other words, the rationale appears to be that
the transference of legal title is treated as a technicality that should not be barred
by delay. A classic illustration is Williams v Greatrex 236
where the plaintiffs had
gone into occupation under an agreement for a lease and were awarded specific
performance of a contract to convey legal title despite a delay of 10 years from
breach of contract. And presumably under the present law, if specific performance
were not available, neither would be damages in lieu of specific performance
(despite the obvious contrast to common law damages which would be barred by
limitation).
13.167 We incline to the view that, so as to avoid any question of our proposals
affecting the long-established rule that a contract to transfer a legal
interest is as good as a transfer of that interest, a limitation period for
specific performance should not be introduced where under the present
law (as exemplified by Williams v Greatrex) laches does not operate to bar
specific performance of a contract. We ask consultees for their views on
this issue. If consultees are against the introduction of a limitation period
233 A contrary rule would go against the developments of the past century, which have
gradually applied statutory limitation periods to equitable claims (such as for breaches of
trust, from the Trustee Act 1888, and actions for an account, from 1939). See J Beatson,
“Limitation Periods and Specific Performance” in Lomnicka and Morse (eds),
Contemporary Issues in Commercial Law (1997), pp 9 - 23.
234 See Ontario Law Reform Commission, Report on Limitation of Actions (1969) paras 22 - 23;
Alberta Law Reform Institute, Limitations, Report No 55 (1989) pp 36 - 37, New Zealand
Law Commission, Report No 6, Limitation Defences in Civil Proceedings, NZLC R6 (1988),
paras 335 - 337, Newfoundland Law Reform Commission, Working Paper on Limitations of
Actions NLRC - WP1 (1985), p 321, Law Reform Commission of British Columbia, Report
on Limitations, Part 2 - General, LRC 15 (1974), p 14. Law Reform Commission of Western
Australia, Report on Limitation and Notice of Actions, Project No 36 - Part II (1997), para
13.67.
235 The classic manifestation of this is the proposition in Walsh v Lonsdale (1882) 21 Ch D 9
that “an agreement for a lease is as good as a lease”. We understand that such agreements
are not uncommon. The same approach is the basis of some equitable mortgages: see
United Bank of Kuwait plc v Sahib [1997] Ch 107.
236 [1957] 1 WLR 31. See also, for example, Sharp v Milligan (1856) 22 Beav 606, 52 ER
1242 (where the delay was 18 years).
378