Limitation of Actions Consultation - Law Commission

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for specific performance in this situation, we ask them whether they would nevertheless favour, in this situation, a limitation period being introduced for damages in lieu of specific performance so as to produce assimilation, for the same breach of contract, with the limitation period applicable to an action for common law damages. 13.168 The next question is if, in accordance with our provisional view, the core regime (subject to what has been said in paragraph 13.167) is to apply to equitable remedies, what role should there be for the doctrine of laches. For example, if specific performance for breach of contract is subject to a 3-year initial limitation period from discoverability, should the court be free to deny specific performance for laches within that 3-year period? Or if an account of profits for breach of trust or an intellectual property tort, is subject to a 3-year initial limitation period from discoverability, should the courts be free to deny an account of profits because of laches within that 3-year period? 13.169 We should emphasise that nothing that we here say is intended to affect the operation of the equitable doctrine of acquiescence (or the linked doctrines of waiver, estoppel, or affirmation). Rather we are talking about laches in its distinctive sense of a remedy being denied because of the plaintiff’s delay plus, probably, prejudice to the defendant (or others). In contrast, acquiescence requires a representation, albeit by active or passive conduct, that the plaintiff will not insist on his or her rights and that the defendant has detrimentally relied on that representation. 237 13.170 Nor is anything we here say intended to affect laches in so far as the doctrine may be applied to rule out a remedy because of the plaintiff’s delay in prosecuting, rather than instituting, an action. 238 Limitation of actions - the subject matter of this paper - is concerned with delay in starting actions and not subsequent delays by the plaintiff. 13.171 In Re Pauling’s Settlement, 239 as we have noted, Wilberforce J held that laches cannot be invoked where there is a statutory limitation period. Adopting that approach there would be no role for laches where the core regime applies. There is much to be said for this approach. The core regime attempts to balance carefully, in a clear and certain way, the interests of the defendant, the plaintiff, and the state. Having fixed the appropriate balance, it may be thought contradictory to override it by the discretionary laches doctrine. 13.172 On the other hand, most other common law reform bodies which have recommended that a uniform limitations regime should apply to all causes of 237 See para 9.20 above. 238 It is not clear whether laches can apply to delay in prosecuting rather than instituting an action. Du Santoy v Symes [1967] Ch 1146, 1168 suggests that it is only where the plaintiff has lulled the defendant into a belief that he is going to ask for damages and not specific performance that delay in bringing an action to trial defeats specific performance. Brunyate, Limitation of Actions in Equity (1932) appears to deal only with instituting an action. Cf Hanbury & Martin, Modern Equity (15th ed 1997), p 719. 239 [1962] 1 WLR 86 at 115, approved by the Court of Appeal [1964] 1 Ch 303 at 353. See 13.161 above. See also Archbold v Scully (1861) 9 HLC 360, 11 ER 769, 778. 379
action have recommended that (contrary to Wilberforce J’s approach) specific provision should be made to preserve the doctrines of laches (and acquiescence). (1) The Alberta Law Reform Institute proposed a clause: Nothing in this Act precludes a court from granting a defendant immunity from liability under the equitable doctrines of acquiescence or laches, notwithstanding that the defendant would not be entitled to immunity pursuant to this Act (Now section 10, Limitations Act 1996, c L-15.1). (2) The Law Reform Commission of Western Australia recommended the adoption of a similar clause. 240 (3) The Newfoundland Law Reform Commission has recommended that laches should be available, but only “with respect to those claims for equitable relief which are in aid of a legal right that may now be defeated by laches.” 241 In consequence the Newfoundland Limitation Act 1995 provides that Nothing in this Act affects (a) a rule of equity that denies relief because of acquiescence or undue delay, to a person whose cause of action is not barred by this Act, (b) a rule of equity that denies relief because of laches to a person who claims equitable relief with respect to a right in law or equity and whose cause of action is not barred by this Act. 242 (4) A similar view was taken by the Law Reform Commission of British Columbia, 243 and enacted in section 2 (b) of the Limitation Act RSBC 1979: Nothing in this Act interferes with ... (b) a rule of equity that refuses relief, on the ground of laches, to a person claiming equitable relief in aid of a legal right, whose right to bring the action is not barred by this Act. Only the New Zealand Law Commission and the Ontario Limitations Act Consultants Group have not recommended providing specifically for the doctrine of laches. 244 240 See Report on Limitation and Notice of Actions, Project No 36 - Part II (1997), para 13.78. 241 See Working Paper on Limitation of Actions, NLRC - WP1 (1985), p 321. 242 Section 3. 243 The reason given for preserving laches where equitable relief is claimed in support of a legal right is so that it can be applied, for example, to applications for specific performance or rescission of a contract, where it is felt that the equitable relief should not be available to the plaintiff for the same period of time as an award in damages. British Columbia Law Reform Commission Report on Limitations, Part 2 - General, LRC 15 (1974), p 14. See also Newfoundland Law Reform Commission, Working Paper on Limitation of Actions, NLRC- WP1 (1985), p 320 n 21. 380
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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
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12.56 We are of the view that a sim
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the law of limitations and possibly
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negligently, and that the plaintiff
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a definition of who within an organ
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However, we do not believe that it
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to obtain the relevant information
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12.92 It should also be remembered
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We discuss in a later section the i
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(2) A period of 30 years from the a
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in connection with the provision of
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always protect plaintiffs. But a li
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a form of “disability” sufficie
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It is also provided that unless the
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(b) Supervening disability 12.126 B
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In practice a right of action again
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where the injury is known only to t
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isks precisely this injustice, and
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12.148 This leaves two issues for c
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view that deliberate concealment sh
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equirement is inappropriate. Whilst
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Commission felt that the difficulti
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limitation period by entering into
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those rights. 272 We recognise the
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any, the acknowledgement would have
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5 SHOULD THE COURTS HAVE A DISCRETI
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the actual hardships to both sides
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307 See also Deerness v John Keeble
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(1) Whether the core regime should
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13.10 Our provisional view is that
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Page 337 and 338: If consultees do not agree, we ask
Page 339 and 340: (2) To What Extent should the Core
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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 357 and 358: usually be the time when the land c
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Page 400 and 401: (2) Definition of the Date of Disco
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Page 412 and 413: 13.155 - 13.157. If consultees do n
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Page 416 and 417: [13 November 1980] APPENDIX LIMITAT
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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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