Limitation of Actions Consultation - Law Commission

What is meant by constructive knowledge (of facts)?
15.7 We ask consultees whether they agree with our provisional views that:
(1) constructive knowledge should include a large subjective element so that it
should be defined as “what the plaintiff in his circumstances and with his
abilities ought to have known had he acted reasonably.”
(2) no more elaborate definition of constructive knowledge is required.
If consultees do not agree with our provisional views we ask them to explain why
not, and what alternative approach they would prefer. (Paragraph 12.57).
Should knowledge of the law be relevant?
15.8 We ask consultees whether knowledge for the purposes of the date of
discoverability:
(1) should always include knowledge of the law, including knowledge of one’s
entitlement to a legal remedy for what has occurred; or
(2) should include knowledge of the law only in so far as such knowledge is
necessary for the plaintiff to know all the elements of his or her cause of
action.
If consultees do not agree with either of these options, we ask them what
alternative proposals they would prefer. (Paragraph 12.69).
How would discoverability apply to corporate plaintiffs?
15.9 Given the uncertainty of how the courts would apply the principles of agency and
the identification test to discoverability by a corporate plaintiff - and given that this
is already an issue of uncertainty under the present law of limitations - it is our
provisional view that we should lay down specific statutory provisions setting out
how discoverability would apply to corporate plaintiffs. We ask consultees if they
agree. If consultees disagree, we ask them how they believe the courts would, or
should, apply the discoverability test to corporate plaintiffs. (Paragraph 12.76).
Actual knowledge
15.10 We provisionally propose that:
(1) there should be a general rule that a company has actual knowledge, for the
purposes of the discoverability test, where an employee or officer has that
knowledge;
(2) but that this rule should not apply where the company can show that the
employee or officer did not himself have authority to act on the
information, and
(a) the individual in question did not in fact communicate it to a
superior or anyone else within the company with the authority to
act on the information, and
402