Limitation of Actions Consultation - Law Commission

years from the date of the personal representative’s knowledge, whichever is the
later. 177
This therefore represents a different and fresh limitation period from that
which would otherwise apply to the deceased’s action. It is possible in a case where
there is more than one personal representative for the dates of knowledge to differ.
If that is the case time will run from the earliest date. 178
3.79 Section 33 of the 1980 Act applies to claims under section 11(5) so that, if the
period set by section 11(5) expires, the court may disapply the limitation period
under section 33. The criteria set out in section 33(3) 179
“shall have effect with
appropriate modifications, and shall have effect in particular as if references to the
plaintiff included references to any person whose date of knowledge is or was
relevant in determining a time limit”. 180
3.80 If the deceased dies after the limitation period for his or her action has expired
then the limitation period laid down in section 11(5) does not operate. The
personal representatives may apply to the court for a declaration under section 33
that the limitation period is excluded. However, in exercising that discretion the
court must have regard in particular to the length of, and reasons for, the delay on
the part of the deceased. 181
Thus when applying the criteria in section 33(3) the
most relevant knowledge will be that of the deceased. 182
Although not expressly
required to do so, the court will also consider the prejudice to the defendant
caused by any further delay on the part of the personal representatives. 183
(3) Actions under the Fatal Accidents Act 1976
3.81 The Fatal Accidents Act 1976 allows an action to be brought for the benefit of the
dependants of the deceased where the death was caused by any wrongful act,
neglect or default, which would have entitled the injured person to maintain an
action to recover damages. That is, it creates a statutory cause of action distinct
from any claim made on behalf of the estate under the Law Reform
(Miscellaneous Provisions) Act 1934. Such actions are brought by the executor or
administrator, but there are exceptions so that in certain circumstances the action
may be commenced by the dependants.
177 Note s 11(6) provides that regard shall be had “to any knowledge acquired by any such
person while a personal representative or previously”.
178 Section 11(7). In the case of injuries caused by a defective product the estate may bring a
cause of action under Part I of the Consumer Protection Act 1987 by relying on the 1934
Act. In this case however the relevant limitation provisions are contained in s 11A(5) -
11A(7) of the 1980 Act. These are similar to s 11(5) - 11(7) and the same principles apply.
179 See further above paras 3.66 - 3.75 above.
180 Section 33(5).
181 Section 33(4).
182 See s 33(5).
183 The rule in Walkley v Precision Forgings Ltd [1979] 1 WLR 606 - see para 3.76 above - is
also relevant here if the deceased issued a writ within the limitation period but did not
commence an action within the limitation period. See Papworth v Yorkshire Chemicals Ltd
(unreported, 13 March 1984) (CA) as an example of the effect of this rule in the case of
death.
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