Limitation of Actions Consultation - Law Commission

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6 ACTIONS FOR CONVERSION Are modifications to the core regime needed for conversion generally? 15.41 We provisionally propose that for actions to recover converted property - and, possibly, for all actions for conversion - the definition of discoverability should require knowledge of the location of the property in addition to the other three elements (knowledge of the facts constituting the cause of action, the identity of the defendant and the significance of the cause of action) to start time running. We ask consultees for their views on this issue. (Paragraph 13.49). 15.42 We ask consultees whether they agree with our provisional view that, at least in respect of actions for conversions that are not thefts or theft-related, the long-stop under our core regime should run from the date of the first conversion. (Paragraph 13.50). Are further modifications to the core regime needed for conversions constituting, or related to, theft? 15.43 We ask consultees whether they favour the retention of the theft exception, whereby conversions constituting, or related to, theft (other than a claim against a bona fide purchaser) are not subject to a limitation period; or whether, on the contrary, they agree with our provisional view that the initial limitation period under the core regime (that is, three years from the date of discoverability) should apply to conversions constituting, or related to, theft. If consultees support the retention of the theft exception we ask them to explain why. (Paragraph 13.57). 15.44 We ask consultees whether they agree with our provisional views that where goods have been stolen:- (a) The long-stop period should apply in relation to actions for conversion against bona fide purchasers of the goods, and that the long-stop period should commence on the date of the purchase or, where there has been more than one purchase, on the date of the first bona fide purchase. (b) The long-stop period should be disapplied in relation to actions for conversion against anyone other than bona fide purchasers of the goods. If consultees do not agree, we ask them what alternative they would prefer. 15.45 We further ask consultees, who agree with our provisional views in the previous paragraph, whether they consider that the desired result can be achieved by a provision on deliberate concealment analogous to the present section 32(1), (3) and (4) of the 1980 Act or whether, on the contrary, they consider that special rules on long-stops are necessary to deal with claims for conversions constituting, or related to, theft. (Paragraphs 13.63 - 13.64). The effect of the expiry of the limitation period 15.46 Our provisional view is that where goods have been converted (whether there has been a theft or not) the plaintiff’s title should become extinguished when both the following conditions are satisfied: (i) the limitation period (whether the initial period or the long-stop) has expired in relation to the plaintiff’s claim in conversion against a defendant; and (ii) at the time when that limitation period 409
expired the goods remained in the possession of that defendant. We ask consultees whether they agree and, if not, to say why not. (Paragraph 13.69). 7 ACTIONS BY A SUBSEQUENT OWNER OF DAMAGED PROPERTY 15.47 Our provisional view is that (a) contrary to the present law, a fresh cause of action should accrue to a subsequent owner of damaged property even where the previous owner had knowledge of the material facts; and (b) the core regime should apply subject to the minor modification that the initial limitation period should start on the date when the plaintiff acquires an interest in the property, where this is later than the date of discoverability. Do consultees agree? (Paragraph 13.76). 8 ACTIONS IN RESTITUTION 15.48 We provisionally propose that restitutionary actions should be subject to our core regime (with the qualification expressed at paragraph 15.49). We ask consultees whether they agree and, if not, to say why not. (Paragraph 13.83). 9 ACTIONS FOR A CONTRIBUTION OR AN INDEMNITY (1) Contribution under Section 1 of the Civil Liability (Contribution) Act 1978 15.49 We ask consultees whether they agree with our provisional view that the core regime should apply to actions for contribution under section 1 of the Civil Liability (Contribution) Act 1978 subject to the modification that, to avoid the problem of a chain of contribution claims, there should be a single long-stop running from the date of the judgment or settlement in the original action to which the contribution claim relates. We also ask consultees whether they would favour shortening the length of the ten year long-stop in this context and, if so, what length of long-stop they would favour. (Paragraph 13.91). (2) Contractual indemnity 15.50 We ask consultees whether they agree with our provisional view that actions for a contractual indemnity should be subject to our core regime subject to the modification that, to avoid the problem of a chain of indemnities, there should be a single long-stop running from the date of the judgment or settlement in the original action to which the indemnity claim relates. We ask consultees whether they would favour shortening the length of the ten year long-stop in this context and, if so, what length of long-stop they would favour. (Paragraph 13.97). 10 BREACH OF TRUST AND RELATED ACTIONS 15.51 Consultees are asked whether they agree with our provisional view that the core regime should apply to actions for breach of trust and to recover trust property, and that the core regime, which includes provisions dealing with deliberate concealment, obviates the need for separate provisions in respect of fraudulent breaches of trust. We also ask consultees whether they agree with our provisional view that the core regime should apply in the same way to actions for breach of fiduciary duty, for breach by a trustee of the “self-dealing” and “fair dealing” rules, 410
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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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of discoverability, offers sufficie
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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
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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 406 and 407: Should an acknowledgement or part p
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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
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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
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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
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Limitation of Actions Consultation - Law Commission

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