Limitation of Actions Consultation - Law Commission

(1) to reduce the initial limitation period or long-stop;
(2) to extend the initial limitation period; and
(3) to change the starting date for the initial limitation period.
We also ask consultees for their views as to whether, by agreement, a longstop
period may or may not be extended or a long-stop starting date may
or may not be changed.
2. WHAT THE PLAINTIFF NEEDS TO DO TO PREVENT THE EXPIRY
OF THE LIMITATION PERIOD: ISSUE OR SERVICE OF
PROCEEDINGS?
14.7 Under the current law, the limitation period will stop running when the plaintiff
issues proceedings against the defendant rather than at the point of service of the
proceedings. 9
14.8 The disadvantage of this rule is that some time will inevitably elapse before the
issue of proceedings comes to the notice of the defendant. In practice the plaintiff
has the benefit of an extension to the limitation period equivalent to the time
within which the writ remains valid. 10
As we have seen, 11
this rule can also cause
problems in relation to the discretion under section 33 of the 1980 Act. As Lord
Diplock said in Thompson v Brown:
It may seem anomalous that a defendant should be better off where,
unknown to him, a writ has been issued but not served than he would be if
the writ had not been issued at all; but this is a consequence of the greater
anomaly too well-established for this House to abolish that, for the
purposes of a limitation period, an action is brought when a writ or other
originating process is issued by the central office of the High Court and not
discoverability with an accrual starting date (in order to give the parties greater certainty)
would be struck down as unreasonable; although if made with a consumer and the claim
was for breach of statutorily implied terms, such an agreement would be void if the 1977
Act applied. If contained in a consumer contract, clauses altering the normal limitation
period might also be struck down as unfair under the Unfair Terms in Consumer Contracts
Regulations 1994.
9 See Thompson v Brown [1981] 1 WLR 744, 752 - 753; Dresser UK Ltd v Falcongate Freight
Ltd [1992] QB 502, 517 and para 9.6 above.
10 A fact which led the Review Body on Civil Justice to recommend that the law should be
changed so that limitation periods continued to run until proceedings were served on the
defendant. This is the position in Scotland. See Report of the Review Body on Civil
Justice (1988) Cm 394, para 204. See also New Zealand Law Commission, Report No 6,
Limitation Defences in Civil Proceedings, NZLC R6 (1988), para 174. The time allowed for
service has been reduced, since the Law Reform Committee and the Review Body
considered the issue, from 12 months to, for most writs, 4 months. RSC, O 6, r 8. See also
rule 7.11, Lord Woolf, Access to Justice: Draft Civil Proceedings Rules (1996), which requires a
claim to be served within 4 months of being issued (unless the claimant requires permission
to serve it out of the jurisdiction, in which case the time is extended to six months from
service).
11 See para 3.76 above.
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