Limitation of Actions Consultation - Law Commission

3.82 The basic provision is section 12 of the Limitation Act 1980 which is largely
analogous to the provisions for actions for personal injuries of section 11. By
section 12(2) no action under the Fatal Accidents Act can be brought after the
expiration of three years from the date of death or the date of knowledge of the
person for whose benefit the action is brought, whichever is the later. Knowledge
here has the same meaning as it has when applied to an action for personal injury
by the injured plaintiff. 184
If there is more than one dependant then the issue of the
date of knowledge under section 12 is applied separately to each of them. 185
Thus
it is possible for a number of different limitation periods to be operating.
3.83 Under section 12(3) of the 1980 Act, sections 28 (extension of limitation period in
the case of disability), 33 (exclusion of limitation period), 35 (new claims in
pending actions) and 39 (if another limitation period is set by another enactment
the limitation period under section 12(2) will not apply) apply to actions under the
1976 Act. Where a dependant applies to the court for the period set by section
12(2) to be excluded under section 33, section 33(5) provides that the criteria set
out in section 33(3) 186
“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”.
3.84 Section 12(1) of the 1980 Act provides that an action under the Fatal Accidents
Act 1976 “shall not be brought if the death occurred when the person injured
could no longer maintain an action and recover damages in respect of the injury
(whether because of a time limit in this Act or any other Act, or for any other
reason).” When deciding whether the deceased could still maintain an action it is
not permissible to take into account the possibility that the limitation period could
have been excluded under section 33. But although no account can be taken of
the possibility that the deceased may have made a successful section 33 claim,
section 33(6) provides that the court may exclude the operation of section 12(1) of
the 1980 Act and section 1 of the Fatal Accidents Act 1976. In exercising that
discretion the court, pursuant to section 33(4), must have regard in particular to
the length of, and reasons for, the delay on the part of the deceased. Although not
specifically required to do so, the court will also consider the prejudice to the
defendant caused by any further delay on the part of the dependants.
3.85 It is worthwhile pointing out here that the decision in Stubbings v Webb, 187
which
we have discussed in detail above, can also lead to odd inconsistency where the
184 See s 14 and the discussion above at paras 3.38 - 3.65.
185 Section 13(1). Section 13(2) provides that, if the effect of subsection 1 is that the action
would be outside the limitation period for some dependants but not all, the court shall
direct that any person as regards whom the action would be outside that limit shall be
excluded from those for whom the action is brought. The Court will not give that direction,
however, if it is shown that, if the action were brought exclusively for the benefit of the
person in question, it would not be defeated by a defence of limitation (whether in
consequence of s 28 of the Act or an agreement between the parties not to raise the
defence, or otherwise): s 13(3). Arguably the court should not give a direction under s
13(2) unless it has also decided it will not exclude the limitation period under s 33. See MA
Jones, Limitation Periods in Personal Injury Actions (1995), p 176.
186 See further paras 3.66 - 3.75 above.
187 [1993] AC 498. See paras 3.32 - 3.35 above.
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