Limitation of Actions Consultation - Law Commission

(2) Definition of the Date of Discoverability
Knowledge of which facts?
15.4 We ask consultees whether they agree with our provisional proposals that:
(1) the definition of the date of knowledge (or date of discoverability) should
focus on three main factual elements:
(a) that the plaintiff has a cause of action
(b) against the defendant which is
(c) significant.
(2) A cause of action should be regarded as significant if a person with the
plaintiff’s abilities would have reasonably considered the cause of action
sufficiently serious to justify instituting proceedings against the defendant,
on the assumption that the defendant does not dispute liability and has the
resources to meet the claim.
If consultees do not agree with these provisional proposals, what proposals would
they prefer? (Paragraph 12.44).
What is meant by actual knowledge (of facts)?
15.5 We ask consultees whether they agree with our provisional views that:
(1) “actual knowledge” should be treated as a straightforward concept and
should not be defined in our proposed statute.
(2) the approach of the Court of Appeal in Spargo v North Essex District Health
Authority 2
should be supported. According to this, the courts should treat
actual knowledge as a subjective concept; and a plaintiff, who so firmly
believes that he or she has a significant cause of action against the
defendant that he or she goes to a solicitor to seek advice about making a
claim, should be regarded as having actual knowledge.
(3) as under the present law, once actual knowledge has been acquired, time
should run irrespective of subsequent advice to the contrary.
If consultees do not agree with our provisional views we ask them to explain why
not, and what alternative approach they would prefer. (Paragraph 12.49).
15.6 We ask consultees whether they agree with our provisional view that it would be
prudent to clarify in the proposed legislation that normal rules of agency would
apply so that a plaintiff would be taken to have his or her agent’s actual knowledge
of information acquired within the agent’s authority to act for the plaintiff.
(Paragraph 12.51).
2 [1997] PIQR P235.
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