Limitation of Actions Consultation - Law Commission

the rule in land-related actions so that the expiry of the limitation period merely
bars the remedy, as this would undermine the title to the land acquired by adverse
possession after the expiry of the limitation period. The same argument applies,
though to a lesser degree, to conversion. As regards adopting a uniform “expiry
bars the remedy” rule, English law has therefore gone as far as it can: the expiry of
the limitation period bars the remedy, save where this would affect title to
property, or is ruled out by European law (as in relation to the Consumer
Protection Act 1987). But should English law go the other way and move to a
uniform rule that expiry of the limitation period extinguishes the right?
14.16 This general rule was examined by the Law Revision Committee in 1936 23
and by
the Law Reform Committee in 1977. 24
In 1936 it was concluded that no general
case could be made in favour of changing the current law, so that rights were more
generally extinguished, and that certain of the remedies available to a potential
plaintiff which did not involve court action (and so would remain available after
the expiry of the limitation period) were worth preserving. 25
In 1977, the Law
Reform Committee agreed, finding that a change in the law would have very little
practical effect, and that there was no significant demand for such a change. 26
14.17 A different position has been taken in some other common law jurisdictions. The
New South Wales Law Reform Commission, the Ontario Law Reform
Commission and the British Columbian Law Reform Commission recommended
that the expiry of the limitation period should extinguish the right in all causes of
action. 27
Similarly, the Newfoundland Law Reform Commission recommended
that the expiry of the limitation period should extinguish the right, but felt that the
requirement for the defendant to plead a limitation defence should be retained. 28
Section 17(1) of the Newfoundland Limitations Act provides that all causes of
action are extinguished on the expiry of the limitation period. 29
14.18 The New Zealand Law Commission in contrast recommended that the expiry of
the long-stop or of the initial limitation period should only afford a defence to the
defendant rather than extinguishing the rights (giving as the reason for their
decision in respect of the long stop, the fact that the long-stop would not be an
23 Fifth Interim Report (Statutes of Limitation) (1936) Cmd 5334, para 24 (pp 32 - 35)
24 Twenty-First Report (Final Report on Limitation of Actions) (1977) Cmnd 6923, paras 2.84 -
2.91.
25 See the Fifth Interim Report, para 24. The most important of these “self-help” remedies was
the solicitor’s lien over his client’s papers. See para 9.2 above.
26 See the Twenty First Report, paras 2.90 to 2.91.
27 New South Wales Law Reform Commission, First Report on the Limitation of Actions, LRC 3
(1967), paras 306 - 323; Ontario Law Reform Commission, Report on the Limitation of
Actions (1969), paras 126 - 133; Law Reform Commission of British Columbia, Report on
Limitations, Part 2 - General, LRC 15 (1974), p 96, and s 9, Limitation Act 1979.
28 See Newfoundland Law Reform Commission, Working Paper on Limitation of Actions,
NLRC-WP1 (1985), p 329 and Report on Limitation of Actions, NLRC-R1 (1986), pp 10 -
11.
29 Though the Act also provides in s 17(2) that where an order is made under another Act
extending the limitation period after that period has expired, the order will revive the cause
of action.
392