Limitation of Actions Consultation - Law Commission

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Should an acknowledgement or part payment bind anyone other than the person making the acknowledgement or payment? 15.29 Though we believe that separate rules should continue to apply to actions in respect of mortgages and for the possession of land, we provisionally recommend that, otherwise, there should be no difference in the effect on third parties of part payments as opposed to acknowledgements: both acknowledgements and part payments should only bind the acknowledgor or the person making the part payment (or their successor). We ask consultees whether they agree with this provisional recommendation. (Paragraph 12.172). Should an acknowledgement or part payment be capable of reviving a claim if it is made after the limitation period has already expired? 15.30 We provisionally recommend that there should be no reform of the law to enable an acknowledgement or part payment to revive a claim notwithstanding the expiry of a limitation period. We ask consultees whether they agree, or whether they consider that acknowledgements made after the expiry of a limitation period should revive the plaintiff’s cause of action (where the expiry of a limitation period serves only to bar the remedy rather than to extinguish the plaintiff’s claim). (Plaintiffs 12.177). 15.31 We ask consultees for their views as to whether a contract (for example, a contractual compromise) can be effective to revive a party’s rights when those rights would otherwise have been extinguished by the operation of the law of limitations. (Paragraph 12.181). Other issues 15.32 We take the provisional view that the requirement that an acknowledgement must be in writing if it is to restart a limitation period should remain. “Writing” for these purposes would include any recording by any means of a representation of words, symbols or numbers, whether recorded by the acknowledgor or the recipient of the acknowledgement. We ask consultees (1) whether they agree with our provisional view that only acknowledgements in writing should be effective to restart a limitation period? (2) whether they think that oral acknowledgements should in some, but not all, circumstances extend a limitation period, and if so, in what circumstances they would recognise an oral acknowledgement as having this effect? (Paragraph 12.184). 15.33 Our provisional view is that, other than the changes which we have provisionally recommended above, the law on acknowledgements and part payments is not in need of reform. We ask consultees if they agree. If consultees disagree, they are invited to tell us of any problems in the existing law and of the reforms which they consider desirable (Paragraph 12.186). 407
5 SHOULD THE COURTS HAVE A DISCRETION TO DISAPPLY OR EXCLUDE A LIMITATION PERIOD? 15.34 We ask consultees whether they agree with our provisional view that within our core regime the courts should not have a discretion to disapply an initial limitation period or a long-stop. If consultees disagree, we ask them in what circumstances they consider that the courts should have a discretion to disapply limitation periods. (Paragraph 12.196). THE RANGE OF THE CORE REGIME 1 ACTIONS ON A SPECIALTY 15.35 Our provisional view is that specialties should be subject to our core regime. We ask consultees whether they agree, and if not, to say why not. (Paragraph 13.6) 2 ACTIONS UNDER THE LAW REFORM (MISCELLANEOUS PROVISIONS) ACT 1934 15.36 Our provisional view is that claims under the Law Reform (Miscellaneous Provisions) Act 1934 should be subject to the core regime, save that (as under the present law in relation to claims for personal injury) the initial limitation period should start from the later of the date the cause of action was discoverable by the plaintiff (that is, the personal representative) or the date of death. Do consultees agree? (Paragraph 13.10). 3 ACTIONS UNDER THE FATAL ACCIDENTS ACT 1976 15.37 We provisionally consider that claims under the Fatal Accidents Act 1976 should be subject to our core regime save that, as under the present law, the date of discoverability should refer to the knowledge of the dependants for whom the action is brought. Do consultees agree? (Paragraph 13.16). 4 ACTIONS BY VICTIMS OF CHILD SEXUAL ABUSE 15.38 We are provisionally of the view that claims by victims of child sexual abuse should continue to be subject to a limitation period. We ask consultees whether they agree and, if not, to say why not. (Paragraph 13.25). 15.39 Our provisional view is that our core regime (in essence, three years from discoverability with a long-stop of 30 years from the date of the abuse and postponement - unless, possibly, there is a representative adult other than the defendant - for minority and adult disability) should apply, rather than a separate regime, to claims by victims of child sexual abuse. We ask consultees whether they agree and, if not, to say why not. (Paragraph 13.37). 5 ACTIONS FOR DEFAMATION OR MALICIOUS FALSEHOOD 15.40 We ask consultees whether they agree with our provisional view that defamation and malicious falsehood should be subject to our core regime. If consultees do not agree, we ask them what, if any, reform to the present law they would prefer. (Paragraph 13.43). 408
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PART I INTRODUCTION 1. WHY DOES THE
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Consumer Protection Act 1987. 12 Th
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periods applicable to them, 29 they
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whether a period of four or five ye
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have been damaged. 54 The Committee
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it is fair to assume that it reflec
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particularly where a defendant is o
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We apprehend that the law of limita
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1.41 Although, plainly, there are a
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(5) actions on a judgment or arbitr
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SECTION A: THE CURRENT LAW PART II
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TABLE 1 Limitation Periods under th
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Nature of Action Starting Point Len
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performed even after they are first
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promise by the guarantor that the d
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The fact that the damage was not at
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whether the ‘reasonable discovera
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limitation period that commission,
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the starting of time running from t
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had been no violation of the Conven
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has taken all reasonable steps to o
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3.44 The operation of section 14(2)
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(that is, the amputation). The Cour
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assess the intelligence of the plai
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approach taking into account an ind
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But there is a lack of solid and bi
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court will naturally be more inclin
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that the court will wish to exercis
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3.82 The basic provision is section
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enacted in the Latent Damage Act 19
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(2) the identity of the defendant;
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first has knowledge of those facts,
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“once he knew whether or not the
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3.113 The drafting of section 4 has
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(8) A Note on Bailment 3.116 A bail
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PART IV STARTING DATE, LENGTH OF PE
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Property Act 1925 where land is own
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express but implied and constructiv
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with the meaning of fraud in sectio
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was the expression “to recover mo
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from the other beneficiaries who ha
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The situation can therefore arise w
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elation to the apportioned cost) re
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defendant’s unjust enrichment has
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difference between this and the San
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money received will fall within thi
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PART VI STARTING DATE, LENGTH OF PE
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the limitation period running from
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a third party who has dispossessed
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in respect of which time will never
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It is not necessary, however, for t
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(1) where the land has been effecti
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title to the land of the person who
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limitation period is either sixty y
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6.50 Where a lender holds a second
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2. ARBITRATION (1) Arbitration Awar
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outside his control; whether the cl
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local authority entered on to the l
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such actions should be classified a
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7.25 Under section 10(4), where the
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expiry of the time limit; whether n
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(vi) Merchant Shipping Act 1995 (
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Act Nature of Action Starting Point
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Act Nature of Action Race Relations
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Act Nature of Action Compulsory Pur
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Act Nature of Action Companies Act
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Act Nature of Action Ibid, Schedule
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Act Nature of Action Town and Count
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PART VIII FACTORS WHICH POSTPONE TH
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(a) the period applicable in accord
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ended in 1993. 25 But, as the next
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not mean ‘concealed’, since any
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supported by the wording of this ph
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(4) Proviso to Section 32 8.23 By r
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3. ACKNOWLEDGEMENT AND PART PAYMENT
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further agreement by the parties. 8
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of discrete debts, and those where
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(3) Acknowledgements and Part Payme
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PART IX ADDITIONAL ISSUES 1 WHAT HA
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2 WHAT THE PLAINTIFF NEEDS TO DO TO
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that the defendants were also debar
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laches cannot be invoked where ther
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emedy, 52 so that, for example, a p
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granted. Under section 13(4) of the
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actions under Order 15, rule 1(2) o
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the court from allowing the action
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9.37 It appears, therefore, that su
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SECTION B: OTHER JURISDICTIONS PART
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Law Reform (Miscellaneous Provision
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(who may not be immediately identif
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for personal injuries; actions for
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corresponding English provision. 64
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1980 78 ] are so obvious that the e
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10.40 Under the 1991 Act, an action
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10.44 There are two exceptions to t
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(7) Factors Postponing the Running
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except in the Northern Territory, w
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fraudulent breach of trust or the r
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(b) while he is, for a continuous p
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causes of action. A confirmation is
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action. 206 As in England and in ot
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discoverable. 228 Moreover, one sho
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(6) Actions in respect of Land 10.7
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5. CANADA 10.85 Statutory rules of
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(3) Latent Damage 10.90 Nearly all
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Central Trust Co v Rafuse, 301 a pr
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the new Limitations Act in Alberta
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periods may apply for the different
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10.112 Below we shall examine three
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product liability, 362 although the
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disguise the nature or the effect o
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general, parties cannot renounce fi
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(vii) A one-year period 425 applies
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prescription is suspended as agains
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the same manner as under the Limita
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10.155 In relation to hidden defect
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at achieving a settlement. 512 Simi
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evision and extension of the ground
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pursued in the tort of nuisance 6 b
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open to argument. It is also arguab
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Deliberate concealment (initial and
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11.22 In discussing the options for
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the chance of a limitation period e
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action does not accrue until the fa
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adopt the model of the Latent Damag
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liability in contract and tort - th
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which the demand was made. We would
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(c) that the injury, assuming liabi
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provision for vicarious liability.
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ecommended a definition of knowledg
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12.43 A final question is the exten
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actual knowledge of information was
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12.56 We are of the view that a sim
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the law of limitations and possibly
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negligently, and that the plaintiff
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a definition of who within an organ
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However, we do not believe that it
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to obtain the relevant information
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12.92 It should also be remembered
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We discuss in a later section the i
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(2) A period of 30 years from the a
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in connection with the provision of
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always protect plaintiffs. But a li
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a form of “disability” sufficie
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It is also provided that unless the
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(b) Supervening disability 12.126 B
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In practice a right of action again
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where the injury is known only to t
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isks precisely this injustice, and
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12.148 This leaves two issues for c
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view that deliberate concealment sh
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equirement is inappropriate. Whilst
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Commission felt that the difficulti
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limitation period by entering into
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those rights. 272 We recognise the
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any, the acknowledgement would have
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5 SHOULD THE COURTS HAVE A DISCRETI
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the actual hardships to both sides
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307 See also Deerness v John Keeble
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(1) Whether the core regime should
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13.10 Our provisional view is that
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of action was an intentional trespa
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is the subject of some controversy.
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or police officer to prove 10 years
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consequences, or has been led to be
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eduction in recent years to the lim
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If consultees do not agree, we ask
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(2) To What Extent should the Core
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if a thief’s identity and whereab
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13.59 It can be strongly argued, ho
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If consultees do not agree, we ask
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7 ACTIONS BY A SUBSEQUENT OWNER OF
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ange of disparate sections: and imp
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action, no loss can have occurred u
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13.95 So, for example, in a constru
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Page 367 and 368: 12 ACTIONS ON A JUDGMENT 13.137 Und
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Page 381 and 382: egime but should continue to apply
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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
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Page 400 and 401: (2) Definition of the Date of Disco
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Page 404 and 405: (2) whether, in addition, the defin
Page 408 and 409: 6 ACTIONS FOR CONVERSION Are modifi
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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
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Page 422 and 423: of his estate by virtue of section
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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,
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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
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9. (1) Nothing in any provision of
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