Limitation of Actions Consultation - Law Commission

More documents

Recommendations

Info

(2) whether, in addition, the definition of “disability” should make provision for the psychological incapacity suffered by victims of sexual abuse. (Paragraph 12.125). Supervening Disability 15.21 We ask consultees whether they agree with our provisional view that supervening disability should suspend the running of time under the initial limitation period. If consultees do not agree, we ask them to say why not. (Paragraph 12.128). The person under a disability has a representative adult 15.22 Consultees are asked whether a limitation period should run against a person under a disability who has a representative adult capable of bringing proceedings on his or her behalf (except where the claim is against the representative). (Paragraph 12.136). Should disability override a long-stop? 15.23 We consider that, at least in relation to adult disability - where in contrast to minority there is no necessary end to the disability - disability should not override a long-stop. Do consultees agree? (Paragraph 12.142). 15.24 We ask consultees which, if any, of the following three options they favour in relation to the question of whether minority should override a long-stop. These three options are all posited on the assumption that time would not be running against a person under a disability in respect of the initial limitation period (see paragraph 12.136). (1) Option 1: Minority should override a long-stop (so that the running of time for any act or omission committed during the plaintiff’s minority would not commence until the plaintiff is 18). (2) Option 2: Minority should not override a long-stop (so that a 10 year longstop would potentially bar a non-personal injury claim even though the plaintiff is a minor). (3) Option 3: There should be a special long-stop for minors which would end on the later of two dates: (a) the date the plaintiff reached the age of 21, or (b) the date the long-stop would have ended in the absence of disability. (Paragraph 12.144). (2) Deliberate Concealment 15.25 Consultees are asked if they agree with our provisional views that:- 405
(a) the long-stop limitation period 3 should be inapplicable where the defendant has deliberately concealed from the plaintiff the facts relevant to the discoverability test under the core regime, that is (i) the facts constituting the cause of action; (ii) the identity of the defendant; and (iii) that the cause of action is significant 4 (whether by act or omission and whether the concealment took place contemporaneously with, or subsequent to, the act or omission giving rise to the cause of action). But, in the absence of deliberate concealment, the long-stop limitation period should apply where the cause of action rests on the mistake of the plaintiff or the fraud of the defendant. (b) Concealment subsequent to the act or omission giving rise to the cause of action should suspend the running of the long-stop. (c) As is the case under the present law, for deliberate concealment the defendant must conceal the relevant facts intending the plaintiff not to discover the truth or reckless as to whether the plaintiff discovers the truth or not. If consultees do not agree with these provisional views, we ask them to say why not. (Paragraph 12.154). (3) Acknowledgement and Part Payment 15.26 We provisionally recommend that acknowledgement or part payment should continue to restart a limitation period in relation to, at least, the same actions for which this is presently the law. (And by limitation period, we mean to refer to both an initial limitation period and a long-stop). We ask consultees if they agree. (Paragraph 12.156). 15.27 We are provisionally opposed to an additional requirement that a plaintiff should have to show that he or she relied on the acknowledgement or part payment. We ask consultees whether they agree. (Paragraph 12.157). Should the law on acknowledgement and part payments be extended to all causes of action? 15.28 We provisionally recommend that acknowledgements and part payments should start time running again for all claims, whether liquidated or unliquidated. Consultees are asked whether they agree and, if not, to say why not. (Paragraph 12.167). 3 Our provisional view, that the initial limitation period should run from discoverability, would ‘swallow up’ the need for deliberate concealment (or mistake or fraud) to extend the ‘initial’ limitation period: see para 12.146 above. 4 And in the case of actions to recover converted goods, the location of the goods: see para 15.41 below. 406
Page 1 and 2:
PART I INTRODUCTION 1. WHY DOES THE
Page 3 and 4:
Consumer Protection Act 1987. 12 Th
Page 5 and 6:
periods applicable to them, 29 they
Page 7 and 8:
whether a period of four or five ye
Page 9 and 10:
have been damaged. 54 The Committee
Page 11 and 12:
it is fair to assume that it reflec
Page 13 and 14:
particularly where a defendant is o
Page 15 and 16:
We apprehend that the law of limita
Page 17 and 18:
1.41 Although, plainly, there are a
Page 19 and 20:
(5) actions on a judgment or arbitr
Page 21 and 22:
SECTION A: THE CURRENT LAW PART II
Page 23 and 24:
TABLE 1 Limitation Periods under th
Page 25 and 26:
Nature of Action Starting Point Len
Page 27 and 28:
performed even after they are first
Page 29 and 30:
promise by the guarantor that the d
Page 31 and 32:
The fact that the damage was not at
Page 33 and 34:
whether the ‘reasonable discovera
Page 35 and 36:
limitation period that commission,
Page 37 and 38:
the starting of time running from t
Page 39 and 40:
had been no violation of the Conven
Page 41 and 42:
has taken all reasonable steps to o
Page 43 and 44:
3.44 The operation of section 14(2)
Page 45 and 46:
(that is, the amputation). The Cour
Page 47 and 48:
assess the intelligence of the plai
Page 49 and 50:
approach taking into account an ind
Page 51 and 52:
But there is a lack of solid and bi
Page 53 and 54:
court will naturally be more inclin
Page 55 and 56:
that the court will wish to exercis
Page 57 and 58:
3.82 The basic provision is section
Page 59 and 60:
enacted in the Latent Damage Act 19
Page 61 and 62:
(2) the identity of the defendant;
Page 63 and 64:
first has knowledge of those facts,
Page 65 and 66:
“once he knew whether or not the
Page 67 and 68:
3.113 The drafting of section 4 has
Page 69 and 70:
(8) A Note on Bailment 3.116 A bail
Page 71 and 72:
PART IV STARTING DATE, LENGTH OF PE
Page 73 and 74:
Property Act 1925 where land is own
Page 75 and 76:
express but implied and constructiv
Page 77 and 78:
with the meaning of fraud in sectio
Page 79 and 80:
was the expression “to recover mo
Page 81 and 82:
from the other beneficiaries who ha
Page 83 and 84:
The situation can therefore arise w
Page 85 and 86:
elation to the apportioned cost) re
Page 87 and 88:
defendant’s unjust enrichment has
Page 89 and 90:
difference between this and the San
Page 91 and 92:
money received will fall within thi
Page 93 and 94:
PART VI STARTING DATE, LENGTH OF PE
Page 95 and 96:
the limitation period running from
Page 97 and 98:
a third party who has dispossessed
Page 99 and 100:
in respect of which time will never
Page 101 and 102:
It is not necessary, however, for t
Page 103 and 104:
(1) where the land has been effecti
Page 105 and 106:
title to the land of the person who
Page 107 and 108:
limitation period is either sixty y
Page 109 and 110:
6.50 Where a lender holds a second
Page 111 and 112:
2. ARBITRATION (1) Arbitration Awar
Page 113 and 114:
outside his control; whether the cl
Page 115 and 116:
local authority entered on to the l
Page 117 and 118:
such actions should be classified a
Page 119 and 120:
7.25 Under section 10(4), where the
Page 121 and 122:
expiry of the time limit; whether n
Page 123 and 124:
(vi) Merchant Shipping Act 1995 (
Page 125 and 126:
Act Nature of Action Starting Point
Page 127 and 128:
Page 129 and 130:
Page 131 and 132:
Act Nature of Action Race Relations
Page 133 and 134:
Act Nature of Action Compulsory Pur
Page 135 and 136:
Act Nature of Action Companies Act
Page 137 and 138:
Act Nature of Action Ibid, Schedule
Page 139 and 140:
Act Nature of Action Town and Count
Page 141 and 142:
PART VIII FACTORS WHICH POSTPONE TH
Page 143 and 144:
(a) the period applicable in accord
Page 145 and 146:
ended in 1993. 25 But, as the next
Page 147 and 148:
not mean ‘concealed’, since any
Page 149 and 150:
supported by the wording of this ph
Page 151 and 152:
(4) Proviso to Section 32 8.23 By r
Page 153 and 154:
3. ACKNOWLEDGEMENT AND PART PAYMENT
Page 155 and 156:
further agreement by the parties. 8
Page 157 and 158:
of discrete debts, and those where
Page 159 and 160:
(3) Acknowledgements and Part Payme
Page 161 and 162:
PART IX ADDITIONAL ISSUES 1 WHAT HA
Page 163 and 164:
2 WHAT THE PLAINTIFF NEEDS TO DO TO
Page 165 and 166:
that the defendants were also debar
Page 167 and 168:
laches cannot be invoked where ther
Page 169 and 170:
emedy, 52 so that, for example, a p
Page 171 and 172:
granted. Under section 13(4) of the
Page 173 and 174:
actions under Order 15, rule 1(2) o
Page 175 and 176:
the court from allowing the action
Page 177 and 178:
9.37 It appears, therefore, that su
Page 179 and 180:
SECTION B: OTHER JURISDICTIONS PART
Page 181 and 182:
Law Reform (Miscellaneous Provision
Page 183 and 184:
(who may not be immediately identif
Page 185 and 186:
for personal injuries; actions for
Page 187 and 188:
corresponding English provision. 64
Page 189 and 190:
1980 78 ] are so obvious that the e
Page 191 and 192:
10.40 Under the 1991 Act, an action
Page 193 and 194:
10.44 There are two exceptions to t
Page 195 and 196:
(7) Factors Postponing the Running
Page 197 and 198:
except in the Northern Territory, w
Page 199 and 200:
fraudulent breach of trust or the r
Page 201 and 202:
(b) while he is, for a continuous p
Page 203 and 204:
causes of action. A confirmation is
Page 205 and 206:
action. 206 As in England and in ot
Page 207 and 208:
discoverable. 228 Moreover, one sho
Page 209 and 210:
(6) Actions in respect of Land 10.7
Page 211 and 212:
5. CANADA 10.85 Statutory rules of
Page 213 and 214:
(3) Latent Damage 10.90 Nearly all
Page 215 and 216:
Central Trust Co v Rafuse, 301 a pr
Page 217 and 218:
the new Limitations Act in Alberta
Page 219 and 220:
periods may apply for the different
Page 221 and 222:
10.112 Below we shall examine three
Page 223 and 224:
product liability, 362 although the
Page 225 and 226:
disguise the nature or the effect o
Page 227 and 228:
general, parties cannot renounce fi
Page 229 and 230:
(vii) A one-year period 425 applies
Page 231 and 232:
prescription is suspended as agains
Page 233 and 234:
the same manner as under the Limita
Page 235 and 236:
10.155 In relation to hidden defect
Page 237 and 238:
at achieving a settlement. 512 Simi
Page 239 and 240:
evision and extension of the ground
Page 241 and 242:
pursued in the tort of nuisance 6 b
Page 243 and 244:
open to argument. It is also arguab
Page 245 and 246:
Deliberate concealment (initial and
Page 247 and 248:
11.22 In discussing the options for
Page 249 and 250:
the chance of a limitation period e
Page 251 and 252:
action does not accrue until the fa
Page 253 and 254:
adopt the model of the Latent Damag
Page 255 and 256:
liability in contract and tort - th
Page 257 and 258:
which the demand was made. We would
Page 259 and 260:
(c) that the injury, assuming liabi
Page 261 and 262:
provision for vicarious liability.
Page 263 and 264:
ecommended a definition of knowledg
Page 265 and 266:
12.43 A final question is the exten
Page 267 and 268:
actual knowledge of information was
Page 269 and 270:
12.56 We are of the view that a sim
Page 271 and 272:
the law of limitations and possibly
Page 273 and 274:
negligently, and that the plaintiff
Page 275 and 276:
a definition of who within an organ
Page 277 and 278:
However, we do not believe that it
Page 279 and 280:
to obtain the relevant information
Page 281 and 282:
12.92 It should also be remembered
Page 283 and 284:
We discuss in a later section the i
Page 285 and 286:
(2) A period of 30 years from the a
Page 287 and 288:
in connection with the provision of
Page 289 and 290:
always protect plaintiffs. But a li
Page 291 and 292:
a form of “disability” sufficie
Page 293 and 294:
It is also provided that unless the
Page 295 and 296:
(b) Supervening disability 12.126 B
Page 297 and 298:
In practice a right of action again
Page 299 and 300:
where the injury is known only to t
Page 301 and 302:
isks precisely this injustice, and
Page 303 and 304:
12.148 This leaves two issues for c
Page 305 and 306:
view that deliberate concealment sh
Page 307 and 308:
equirement is inappropriate. Whilst
Page 309 and 310:
Commission felt that the difficulti
Page 311 and 312:
limitation period by entering into
Page 313 and 314:
those rights. 272 We recognise the
Page 315 and 316:
any, the acknowledgement would have
Page 317 and 318:
5 SHOULD THE COURTS HAVE A DISCRETI
Page 319 and 320:
the actual hardships to both sides
Page 321 and 322:
307 See also Deerness v John Keeble
Page 323 and 324:
(1) Whether the core regime should
Page 325 and 326:
13.10 Our provisional view is that
Page 327 and 328:
of action was an intentional trespa
Page 329 and 330:
is the subject of some controversy.
Page 331 and 332:
or police officer to prove 10 years
Page 333 and 334:
consequences, or has been led to be
Page 335 and 336:
eduction in recent years to the lim
Page 337 and 338:
If consultees do not agree, we ask
Page 339 and 340:
(2) To What Extent should the Core
Page 341 and 342:
if a thief’s identity and whereab
Page 343 and 344:
13.59 It can be strongly argued, ho
Page 345 and 346:
If consultees do not agree, we ask
Page 347 and 348:
7 ACTIONS BY A SUBSEQUENT OWNER OF
Page 349 and 350:
ange of disparate sections: and imp
Page 351 and 352:
action, no loss can have occurred u
Page 353 and 354: 13.95 So, for example, in a constru
Page 355 and 356: of discoverability, offers sufficie
Page 357 and 358: usually be the time when the land c
Page 359 and 360: in full to such actions. This would
Page 361 and 362: actions, and increasing the coheren
Page 363 and 364: 13.125 The situation should also be
Page 365 and 366: 13.131 If such actions are to be br
Page 367 and 368: 12 ACTIONS ON A JUDGMENT 13.137 Und
Page 369 and 370: 13.143 This protection was not comp
Page 371 and 372: when the distinction was swept away
Page 373 and 374: authorities and bodies levying char
Page 375 and 376: performance, injunctions, or other
Page 377 and 378: common law remedies. 233 This appro
Page 379 and 380: action have recommended that (contr
Page 381 and 382: egime but should continue to apply
Page 383 and 384: 94; the Vaccine Damages Payments Ac
Page 385 and 386: (2) whether they consider that a li
Page 387 and 388: If a defendant can waive a limitati
Page 389 and 390: when it is brought to the knowledge
Page 391 and 392: the rule in land-related actions so
Page 393 and 394: great advantage in abolishing these
Page 395 and 396: which was considered determinative
Page 397: 398
Page 400 and 401: (2) Definition of the Date of Disco
Page 402 and 403: (b) the individual would not be exp
Page 406 and 407: Should an acknowledgement or part p
Page 408 and 409: 6 ACTIONS FOR CONVERSION Are modifi
Page 410 and 411: and for dishonestly assisting or pr
Page 412 and 413: 13.155 - 13.157. If consultees do n
Page 414 and 415: 2. WHAT THE PLAINTIFF NEEDS TO DO T
Page 416 and 417: [13 November 1980] APPENDIX LIMITAT
Page 418 and 419: 4A. Time limit for actions for defa
Page 420 and 421: varies the amount of damages awarde
Page 422 and 423: of his estate by virtue of section
Page 424 and 425: and knowledge that any acts or omis
Page 426 and 427: able to satisfy a judgment. (8) The
Page 428 and 429: preceding estate or interest or six
Page 430 and 431: (b) any land is held upon trust (in
Page 432 and 433: of trust property under the trust,
Page 434 and 435: ar, the assurance shall thereupon o
Page 436 and 437: Acknowledgment and part payment 29
Page 438 and 439: (4) Where in a case within subsecti
Page 440 and 441: Discretionary exclusion of time lim
Page 442 and 443: (3) In acting under this section th
Page 444 and 445: (as the case may be) by way of coun
Page 446 and 447: In this subsection "duty" includes
Page 448 and 449: (5) Subject to subsection (6) below
Page 450 and 451: SCHEDULES SCHEDULE 1 Provisions wit
Page 452 and 453: 7. Accrual of right of action in ca
Page 454 and 455:
corporation sole the right of actio
Page 456:
9. (1) Nothing in any provision of
show all

Limitation of Actions Consultation - Law Commission

Create successful ePaper yourself

Delete template?

Save as template?