Limitation of Actions Consultation - Law Commission

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estitution would be regarded as accruing at the same date as the tort or equitable wrong. An alternative approach is that, by analogy with the position for autonomous unjust enrichment, the cause of action accrues on the later of the date when the enrichment is received or the date of the relevant wrong. 92
PART VI STARTING DATE, LENGTH OF PERIOD, DISCRETION TO DISAPPLY AND LONG- STOP: ACTIONS TO RECOVER LAND AND RELATED ACTIONS 6.1 The law on limitation periods for actions to recover land and related actions is set out in sections 15 to 20 and Schedule 1 of the 1980 Act. These provisions apply to actions to recover any interest in land, 1 actions to recover arrears of rent, 2 and actions to recover money secured by a mortgage or charge, or to recover the proceeds of the sale of land, 3 although it should be borne in mind that provisions of more general application may also be relevant. For example, the running of time might be postponed by the plaintiff’s disability. 4 Special provisions postpone the start of the limitation period where there has been an acknowledgement of the plaintiff’s title. 5 6.2 The fact that the expiry of time can enable a person to acquire title to land through limitation means that there are parallels between limitation on the one hand, and, on the other hand, prescription, whereby the expiry of time can enable a person to acquire an easement or profit. 6 But despite the parallel, limitation and prescription are, in relation to the acquisition of interests and rights in land, quite separate concepts. They differ fundamentally in that prescription rests on the presumption of a previous grant of the right being claimed, and its lawful exercise, whereas limitation rests on adverse possession, which is necessarily an unlawful use of land. 7 Since the purpose of this project is to examine limitation of actions, that is, where the plaintiff has a cause of action against the defendant, adverse possession falls within it, whereas the creation of easements and profit by prescription is outside its scope. 6.3 However, as in relation to the tort of conversion, it would here be artificial to discuss the starting date and length of period without also considering what happens on the expiry of the limitation period. 8 1 Sections 15 - 18 and Schedule 1. See para 6.4 - 6.44 below. 2 Section 19. See para 6.45 below. 3 Section 20. See paras 6.46 - 6.50 below. 4 See paras 8.2 - 8.5 below. 5 See paras 8.27 - 8.35; 8.42 - 8.48 below. 6 For a general discussion of the acquisition of easements and profits by prescription see R E Megarry and H W R Wade, The Law of Real Property (5th ed 1984), pp 869 - 892; Cheshire and Burn’s Modern Law of Real Property (15th ed 1994), pp 543 - 557. 7 Succinctly described by Nourse LJ in Buckinghamshire CC v Moran [1990] 1 Ch 623, 644 as “possession as of wrong”. See paras 6.19 - 6.35 below. 8 The general law on the expiry of a limitation period is dealt with in paras 9.1 - 9.5 below. See paras 3.108 - 3.115 in relation to conversion. 93
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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
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(5) actions on a judgment or arbitr
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SECTION A: THE CURRENT LAW PART II
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TABLE 1 Limitation Periods under th
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Nature of Action Starting Point Len
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performed even after they are first
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promise by the guarantor that the d
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The fact that the damage was not at
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whether the ‘reasonable discovera
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limitation period that commission,
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the starting of time running from t
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had been no violation of the Conven
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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 and 70: (8) A Note on Bailment 3.116 A bail
Page 71 and 72: PART IV STARTING DATE, LENGTH OF PE
Page 73 and 74: Property Act 1925 where land is own
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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: money received will fall within thi
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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
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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
Page 121 and 122: expiry of the time limit; whether n
Page 123 and 124: (vi) Merchant Shipping Act 1995 (
Page 125 and 126: Act Nature of Action Starting Point
Page 131 and 132: Act Nature of Action Race Relations
Page 133 and 134: Act Nature of Action Compulsory Pur
Page 135 and 136: Act Nature of Action Companies Act
Page 137 and 138: Act Nature of Action Ibid, Schedule
Page 139 and 140: Act Nature of Action Town and Count
Page 141 and 142: 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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