Limitation of Actions Consultation - Law Commission

(iii) What is meant by actual knowledge of a fact?
3.52 The concept of actual knowledge is probably the same for all the section 14(1)
facts. 106
The plaintiff may progress from a state of complete unawareness, via
suspicion, and belief of facts, to certain knowledge. The plaintiff will almost always
make this progress at least partly with the assistance of legal, medical and other
experts. Sometimes this is not a “straight-line” progression: for example, the
plaintiff may change his or her mind on receiving advice, only to change it back
again when further information or advice comes to light.
3.53 In some cases, the courts have regarded there as being a sharp distinction between
knowledge, on the one hand, and mere belief or suspicion on the other, which does
not amount to knowledge, even if reasonable and strongly held. 107
But in Halford v
Brooks 108
Lord Donaldson MR said that “reasonable belief,” as opposed to
suspicion that was “vague and unsupported”, would normally constitute
knowledge. In Nash v Eli Lilly & Co 109
the Court of Appeal rejected the
distinction between knowledge and belief as “a false antithesis.” 110
Purchas LJ, 111
whilst insisting that he was not attempting a precise definition, said that the court
would
proceed on the basis that knowledge [for the purpose of section 14(1)]
is a condition of mind which imports a degree of certainty and ... the
degree of certainty which is appropriate ... is that which, for the
particular plaintiff, may reasonably be regarded as sufficient to justify
embarking upon the preliminaries to the making of a claim for
compensation such as the taking of legal or other advice. 112
He then said that whether or not the plaintiff’s state of mind could be treated as
knowledge depended on two factors, which could be viewed as stages in a process.
The first factor or stage was the nature of the information received by the plaintiff;
the second factor was the plaintiff’s evaluation of the information. The court
would then:
106 Parry v Clwyd Health Authority [1997] PIQR P1, P6, per Colman J.
107 Davis v Ministry of Defence, The Times, 7 August 1985 (CA); Stephen v Riverside Health
Authority [1990] 1 Med LR 261 (Auld J).
108 [1991] 1 WLR 428, 443.
109 [1993] 1 WLR 782.
110 Ibid, 796, per Purchas LJ. See also O’Driscoll v Dudley Health Authority, in which the plaintiff
was held not to have acquired knowledge pending expert medical advice, although some
time previously letters had been sent on her behalf to the defendant claiming
compensation, and saying (inter alia) that the anoxia resulting from the alleged negligence
was “why she is like she is” and that “In our opinion and that of others [the plaintiff’s]
condition was caused through incompetence”: [1996] 7 Med LR 408, 412, per Poole J.
Further, in Whitfield v North Durham Health Authority [1995] 6 Med LR 32, 37, Waite LJ
said that even the issue of an earlier writ in respect of the same cause of action did not
necessarily mean that the plaintiff had knowledge at the time when the earlier writ was
issued although since, in that case, the plaintiff was held to have acquired actual knowledge
two years before the first writ was issued, this should be treated as obiter.
111 Giving the judgment of the court.
112 [1993] 1 WLR 782, 792.
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