Limitation of Actions Consultation - Law Commission

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one year from accrual with a judicial discretion to disapply (defamation or malicious falsehood). It is hard to see the justification for such complexity. Moreover, apart from the complexity caused by having different regimes, there is needless complexity within the different regimes. We have seen, for example, that the discoverability test, within the present law, is problematic; and that the law governing conversion is tortuous. 70
PART IV STARTING DATE, LENGTH OF PERIOD, DISCRETION TO DISAPPLY AND LONG- STOP: BREACH OF TRUST 1. ACTIONS FOR (OR CONSEQUENT ON A) BREACH OF TRUST (1) Introduction 4.1 The law on limitation periods for actions for (or consequent on) a breach of trust is laid down in section 21 of the 1980 Act. This is a notoriously complex section. It essentially provides two separate regimes for actions by a beneficiary under a trust: (1) The regime governing fraudulent breaches of trust (section 21(1)(a)) and actions to recover trust property or its proceeds from the trustee (section 21(1)(b)); (2) The regime governing all other actions by a beneficiary to recover trust property or in respect of a breach of trust (section 21(3)). No limitation period applies to actions falling within the first regime. The limitation period which applies to actions falling within the second regime is six years from the date on which the right of action accrued; and there is no judicial discretion to disapply and no long-stop. 1 4.2 It is important to emphasise at the outset that section 38(1) of the 1980 Act defines “trustee”, be reference to the definition in the Trustee Act 1925. Section 68(1)(17) of that Act expressly includes, for example, implied and constructive trustees, and personal representatives. 2 It has, however, been held not to apply to a trustee in bankruptcy. 3 There is no explicit reference in section 68(1)(17) of the Trustee Act 1925 to trustees under a resulting trust, and it has been suggested that it is arguable that this indicates an intention on the part of the legislature to exclude resulting trusts from the ambit of section 68 of the Trustee Act 1925. 4 But it is most unlikely that this interpretation is the one intended. 5 Subject to these 1 The personal remedy in issue in relation to actions under s 21 is commonly the equitable action for an account. By s 23, the time limit for an account depends on the time limit for the underlying claim. See para 5.13 below. 2 By s 68(1)(17) of the Trustee Act 1925: “‘Trust’ does not include the duties incident to an estate conveyed by way of mortgage, but with this exception the expressions ‘trust’ and ‘trustee’ extend to implied and constructive trusts, and to cases where the trustee has a beneficial interest in the trust property, and to the duties incident to the office of a personal representative, and ‘trustee’, where the context admits, includes a personal representative, and ‘new trustee’ includes an additional trustee.” 3 Re Cornish [1896] 1 QB 99. 4 A McGee, Limitation Periods (2nd ed 1994), p 250. 5 The expression “implied trusts” is sometimes used to mean all trusts other than express trusts which arise, or are presumed to arise, through the intention of the settlor. It seems likely that “implied ... trusts”, for the purposes of Trustee Act 1925, s 68(1)(17), includes 71
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PART I INTRODUCTION 1. WHY DOES THE
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Consumer Protection Act 1987. 12 Th
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periods applicable to them, 29 they
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whether a period of four or five ye
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have been damaged. 54 The Committee
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it is fair to assume that it reflec
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particularly where a defendant is o
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We apprehend that the law of limita
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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
Page 55 and 56: that the court will wish to exercis
Page 57 and 58: 3.82 The basic provision is section
Page 59 and 60: enacted in the Latent Damage Act 19
Page 61 and 62: (2) the identity of the defendant;
Page 63 and 64: first has knowledge of those facts,
Page 65 and 66: “once he knew whether or not the
Page 67 and 68: 3.113 The drafting of section 4 has
Page 69: (8) A Note on Bailment 3.116 A bail
Page 73 and 74: Property Act 1925 where land is own
Page 75 and 76: express but implied and constructiv
Page 77 and 78: with the meaning of fraud in sectio
Page 79 and 80: was the expression “to recover mo
Page 81 and 82: from the other beneficiaries who ha
Page 83 and 84: The situation can therefore arise w
Page 85 and 86: elation to the apportioned cost) re
Page 87 and 88: defendant’s unjust enrichment has
Page 89 and 90: difference between this and the San
Page 91 and 92: money received will fall within thi
Page 93 and 94: PART VI STARTING DATE, LENGTH OF PE
Page 95 and 96: the limitation period running from
Page 97 and 98: a third party who has dispossessed
Page 99 and 100: in respect of which time will never
Page 101 and 102: It is not necessary, however, for t
Page 103 and 104: (1) where the land has been effecti
Page 105 and 106: title to the land of the person who
Page 107 and 108: limitation period is either sixty y
Page 109 and 110: 6.50 Where a lender holds a second
Page 111 and 112: 2. ARBITRATION (1) Arbitration Awar
Page 113 and 114: outside his control; whether the cl
Page 115 and 116: local authority entered on to the l
Page 117 and 118: such actions should be classified a
Page 119 and 120: 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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Limitation of Actions Consultation - Law Commission

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