Limitation of Actions Consultation - Law Commission

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six years proposed by the Tucker Committee) 19 is “a matter deserving of the attention of the Law Commission for the law cannot be described as satisfactory”. 20 And Brooke LJ has suggested that we should examine the problems of interpretation caused by the definition of the date of knowledge which starts the limitation period running for personal injury claims. 21 1.5 Although part of the purpose of this paper is to seek consultees’ views on the extent to which reforms are needed, we can say at the outset that, at this stage in our thinking, the case for a wide-ranging reform looks compelling. It would seem that only a comprehensive reform can produce a law of limitations that is coherent, certain, clear, just, modern and cost-effective. 2. THE BACKGROUND TO THE PRESENT LAW 1.6 The first “limitation periods” applied to various land-related actions. Before 1237 plaintiffs could not claim land on the basis of a seisin before the day in 1135 when Henry I died. 22 Thereafter more recent dates were set for land-related claims with effect from 1237, 23 and 1275. 24 These dates were not changed until 1540, when for the first time limitation periods were set by reference to a fixed period of time rather than a fixed date. 25 Under the 1540 Act of Limitation, limitation periods of sixty, 26 fifty 27 and thirty years 28 were prescribed for land-related claims. The Limitation Act 1623 then provided that the period for writs of formedon should be limited to twenty years, and that no person should make entry into any lands later than twenty years after his right of entry accrued. 1.7 The limitation periods for land-related actions were reviewed by the Real Property Commissioners reporting to the House of Commons in 1829. Noting the multiplicity of remedies for land-related claims, and the equal variety of limitation 19 See para 1.13 below. 20 [1995] 1 FLR 862, 866. 21 Spargo v North Essex District Health Authority [1997] PIQR P235, P245. 22 Sir F Pollock and FW Maitland, The History of English Law before the time of Edward I (2nd ed 1968), p 81. 23 Under the Statute of Merton, 20 Hen III, c 8 (1235) a Writ of Right could not refer back to any time before Henry II’s coronation (1154); Writs of Mort d’auncestor, or Nativis and Entry could not refer to any time before “the last return of King John from Ireland into England”, and Writs of Novel Disseisin could not refer to time before Henry III’s first voyage to Gascony. 24 Under the Statute of Westminster, 3 Ed I c 39 (1275), the earliest date which could be cited in a Writ of Right was moved forward to the coronation of Richard I (1189); for Writs of Mort d’auncestor, of Cousinage, of Aiel, of Entry and of Nativis the relevant date was changed to the coronation of Henry III (1216). 25 See the Act of Limitation, with a proviso, 32 Hen VIII, c 2 (1540). 26 For a Writ of Right. 27 For Writs of Mort d’auncestor, Cousinage, Aiel, Writs of Entry or other possessory actions and avowries for rents or services, formedons in remainder and reverter and scire facias on fines. 28 For claims based on the possession of the claimant. 4
periods applicable to them, 29 they recommended that the law be simplified “by giving all persons alleging that they are unjustly deprived of their estates the same time for enforcing their claims, with a certain indulgence to claimants under disabilities”. With respect to the length of the limitation period, they said: Notwithstanding the anomalies to which we have adverted, the period of twenty years is the limitation which in this country is generally acted upon, and which, being established in some cases by statute, and found to suit the convenience of society, has been made the foundation of legal presumption, and the rule for affording or refusing equitable relief. We think that this should be retained, and with a few exceptions and qualifications made universal. 30 These recommendations were implemented in the Real Property Limitation Act 1833. The 20-year period was then reduced to 12 years by the Real Property Limitation Act 1874. This remains the relevant limitation period for most landrelated claims. 1.8 Until the Limitation Act 1623 there were no limitation periods for other (that is, non-land-related) claims. This Act provided that a limitation period of two years should apply to actions on the case for words, a period of four years should apply to actions of assault and false imprisonment and for most other actions a limitation period of six years should apply. We have been unable to trace any information on the reason why the six year period was thought appropriate. No limitation period applied to contracts under seal (that is, specialties), actions of account between merchants, their servants or factors, actions brought for debt under a special statute, nor to actions brought on a record. 31 These limitation periods were supplemented by the Civil Procedure Act 1833, which prescribed a limitation period of twenty years for actions on a bond or other specialty, a period of two years for actions to recover penalties, and extended the application of the six year period to actions of debt upon an award. 1.9 These limitation periods were reviewed by the Law Revision Committee, chaired by Lord Wright MR, in 1936. 32 The report of that Committee noted that considerable problems were caused by different periods being laid down for different actions (not least because some limitation periods were set by reference to forms of action which had ceased to exist following the reforms made by the Common Law Procedure Act 1854 and the Judicature Acts 1873-75). The Committee noted that 29 In some cases no limitation periods applied, as with claims for dower, escheat, waste - or any other action for which seisin did not need to be alleged. Further no statute of limitation applied to actions by the Church. 30 First Report of the Real Property Commissioners, Parliamentary Papers, 1829, vol X, p 1, 40. 31 See 21 Jac 1, c 16, s 3; Sir W Holdsworth, A History of English Law (7th ed 1956), vol 4, p 533. 32 Law Revision Committee, Fifth Interim Report (Statutes of Limitation) (1936) Cmd 5334. 5
Page 1 and 2: PART I INTRODUCTION 1. WHY DOES THE
Page 3: Consumer Protection Act 1987. 12 Th
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
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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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usually be the time when the land c
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in full to such actions. This would
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actions, and increasing the coheren
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13.125 The situation should also be
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13.131 If such actions are to be br
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12 ACTIONS ON A JUDGMENT 13.137 Und
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13.143 This protection was not comp
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when the distinction was swept away
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authorities and bodies levying char
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performance, injunctions, or other
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common law remedies. 233 This appro
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action have recommended that (contr
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egime but should continue to apply
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94; the Vaccine Damages Payments Ac
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(2) whether they consider that a li
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If a defendant can waive a limitati
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when it is brought to the knowledge
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the rule in land-related actions so
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great advantage in abolishing these
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which was considered determinative
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398
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(2) Definition of the Date of Disco
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(b) the individual would not be exp
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(2) whether, in addition, the defin
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Should an acknowledgement or part p
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6 ACTIONS FOR CONVERSION Are modifi
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and for dishonestly assisting or pr
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13.155 - 13.157. If consultees do n
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2. WHAT THE PLAINTIFF NEEDS TO DO T
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[13 November 1980] APPENDIX LIMITAT
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4A. Time limit for actions for defa
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varies the amount of damages awarde
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of his estate by virtue of section
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and knowledge that any acts or omis
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able to satisfy a judgment. (8) The
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preceding estate or interest or six
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(b) any land is held upon trust (in
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of trust property under the trust,
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ar, the assurance shall thereupon o
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Acknowledgment and part payment 29
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(4) Where in a case within subsecti
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Discretionary exclusion of time lim
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(3) In acting under this section th
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(as the case may be) by way of coun
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In this subsection "duty" includes
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(5) Subject to subsection (6) below
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SCHEDULES SCHEDULE 1 Provisions wit
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7. Accrual of right of action in ca
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corporation sole the right of actio
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9. (1) Nothing in any provision of
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