Limitation of Actions Consultation - Law Commission

court will naturally be more inclined to exercise its discretion in favour of the
plaintiff, but even very short delays must be adequately explained in order for the
court to do so. 156
To hold otherwise would create a risk that the limitation period
would nearly always in practice be longer than the three years allowed by the
statute.
“The extent to which, having regard to the delay, the evidence adduced or likely to be
adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action
had been brought within the time allowed by section 11...”
3.69 This paragraph encompasses a number of possibilities. Oral evidence may have
become less reliable because witnesses’ memories have faded. Documentary
evidence may have been destroyed. In this latter case the court may take into
account which party has destroyed the evidence, and whether that destruction was
reasonable. However, the ultimate question must be whether in all the
circumstances it is still possible to have a fair trial of the action. This inevitably
creates a risk that defendants will be able to escape liability by destroying relevant
evidence. 157
“The conduct of the defendant after the cause of action arose, including the extent (if
any) to which he or she responded to requests reasonably made by the plaintiff for
information or inspection for the purpose of ascertaining facts which were or might be
relevant to the plaintiff's cause of action against the defendant”
3.70 A defendant who deliberately resorts to delaying tactics in order to delay either the
issue or the service of the writ may find this paragraph invoked against him or her,
as may a defendant who is obstructive to the plaintiff’s efforts to discover the
facts. 158
But the conduct which potentially falls within the paragraph is limited to
procedural matters in the conduct of the litigation. 159
3.71 The obligations imposed on the defendant by this paragraph extend also to his or
her insurers and solicitors. 160
It has also been held that the making of an interim
payment may be taken into account under this paragraph, this being a relevant
factor about a defendant’s conduct because it is evidence that the plaintiff
probably has a strong case. 161
“The duration of any disability of the plaintiff arising after the date of the accrual of the
cause of action”
rights to explain the delay in bringing proceedings. See Halford v Brookes [1991] 1 WLR
428 and Coad v Cornwall and Isles of Scilly Health Authority [1997] 1 WLR 189.
156 Ramsden v Lee [1992] 2 All ER 204; Hartley v Birmingham DC [1992] 1 WLR 968.
157 Conry v Simpson [1983] 3 All ER 369 (CA).
158 See, eg, Marston v British Railways Board [1976] ICR 126, 136 - 137, per Croom-Johnson J.
Apart from s 33 it may be possible to infer an agreement to defer either issue or service of
proceedings, perhaps giving rise to an estoppel against relying on limitation or the time
limit for serving the writ: see Hare v Personal Representatives of Malik (1980) 124 SJ 328.
159 Halford v Brookes [1991] 1 WLR 428, 436G, per Russell LJ.
160 Thompson v Brown [1981] 1 WLR 744, 751.
161 Marshall v Martin (unreported, 10 June 1987) (CA).
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