Limitation of Actions Consultation - Law Commission

Where the plaintiff must obtain leave before proceedings may be issued, the initial
limitation period would start running when the plaintiff has the knowledge
required by our definition of discoverability. It would be suspended from the date
when the plaintiff applied for leave to bring the proceedings, but would start
running again when leave is granted. The same rule would be applied to the longstop
period.
14.25 Example 1: Where the plaintiff wishes to sue an insolvent defendant, having
acquired the relevant knowledge in January 2000, the initial limitation period
would start to run from that point. The plaintiff would need leave to bring the
proceedings. If the plaintiff applied for leave in December 2000, the limitation
period would be suspended from that point. It would start to run again when
leave was granted: so that, if leave was given at the end of June 2001, the plaintiff
would then have a further two years from that point before the limitation period
expired.
14.26 Example 2: The plaintiff applies for a patent in January 2000. That patent is then
infringed by the defendant in January 2001. The plaintiff immediately learns of
the infringement, but is unable to bring proceedings because the patent has not
been granted. This finally happens in January 2010. As the plaintiff had already
taken the necessary steps to remove the restriction by applying for the patent, and
pursuing that application, the limitation period would immediately be suspended -
and would in practice only start to run from January 2010, the date of the grant of
the patent. The plaintiff would therefore have three years from that date to bring
the action for patent infringement.
14.27 We ask consultees whether they agree with our provisional view that,
where the plaintiff’s right to bring the action is subject to a restriction, the
running of time, for the purposes of the initial limitation period and longstop,
should be suspended from the date the plaintiff has done all that he
or she could do to lift that restriction. If consultees do not agree with this,
we ask them to say why they do not agree.
6 THE BURDEN OF PROOF
14.28 Under the current law it is not entirely clear who has the burden of proof on
limitation. 38
However, it seems to be the case that the burden of proof is on the
plaintiff: that is, the plaintiff has the burden of disproving a limitation defence
where the defendant has pleaded one. The point is one of some practical
significance, for there will inevitably be cases where the action is fairly old, but
there is some dispute as to whether time has run or not, and the evidence on the
point is inconclusive. In such cases the outcome is likely to depend ultimately on
the incidence of the burden of proof.
14.29 Arguably it is more logical that the burden of proving that a limitation defence
applies should rest on the defendant: this would be consistent with viewing
limitation as a “defence” and with the rule that the defendant must plead a
limitation defence if he intends to raise one. Further, it is not an essential part of
the plaintiff’s cause of action that the limitation period has not expired, a point
38 See paras 9.23 - 9.25 above.
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