Limitation of Actions Consultation - Law Commission

great advantage in abolishing these rules. 35
Moreover, we feel that making
“extinction” the general rule could create difficulties (notably in the case of actions
for a contribution, where the limitation period for an action by the plaintiff in the
original action against the defendant to the contribution action may have expired
before the right to bring a contribution action has accrued). Our provisional
view is that (with the exception explained in paragraphs 13.65 - 13.69
above) no change should be made to the present law on the effect of the
expiry of a limitation period. Consultees are asked if they agree.
5 THE “SEVCON PROBLEM”: RESTRICTIONS ON THE
PLAINTIFF’S RIGHT TO SUE.
14.22 We have seen that it is possible for a cause of action to accrue, and hence for a
limitation period to commence, before the plaintiff is legally entitled to bring an
action. 36
The classic illustration is Sevcon Ltd v Lucas CAV Ltd. 37
English law has
not taken the view that, as the plaintiff is not in a position to pursue the claim,
time should not run in such cases just as it does not run in cases of disability.
Rather time runs irrespective of any restrictions on the plaintiff’s right to sue
which do not form part of the cause of action. Although the cases have concerned
the time at which the cause of action arose, rather than the time at which the
cause of action was discoverable (which would be the starting-point for the
limitation period under our core regime), the same problem could arise under our
core regime, unless specific provision is made to deal with it. That is, the plaintiff
may know of his cause of action but be unable to sue for it because of the
existence of a restriction on his or her right to sue.
14.23 We are of the view that the plaintiff in this position should be protected from the
risk that the limitation period expires before he or she is ever able to bring
proceedings. This could be done by enacting a rule that the limitation period
should not start to run until the restriction on the plaintiff’s right to sue had been
removed. However, the plaintiff should not be given over-generous protection.
For example, in certain circumstances the plaintiff must obtain the leave of the
court before he or she may issue proceedings. This could be described as a
restriction on the plaintiff’s right to sue. However, the plaintiff can apply for the
leave of the court when he or she thinks fit, and, if leave is granted, there
would be unlikely to be a significant delay between the making of the
application and the grant of leave. It would be inappropriate for the limitation
period to start only when leave to bring the action had been granted. To decide
otherwise would allow the plaintiff to determine when the limitation period would
expire.
14.24 A more satisfactory solution would be to suspend the limitation period from the
point where the plaintiff has taken the necessary steps to remove any restriction.
35 Cf the New South Wales Law Reform Commission which noted, “We think it a useful
reform to extinguish the right when the cause of action for its enforcement is barred and
thus abolish a number of complicated rules of law which have little practical importance but
stand merely as an occasional embarrassment to the student, the lawyer and the citizen”
(First Report on the Limitation of Actions), LRC 3 (1967), para 323.
36 See paras 9.26 - 9.27 above.
37 [1986] 1 WLR 462.
394