2: Limitation

Question 1

Limitation Periods You Need to Know

Tort

Answer 1

= 6 years

Question 2

Limitation Periods You Need to Know

• Tort
• Contract
• Personal injuries (whether tort or contractliability)
• Contribution
• Judgments

Answer 2

Tort = 6 years (LA 1980, s. 2)

Contract = 6 years (LA 1980, s. 5)

Personal injuries (whether

tort or contract liability) = 3 years (LA 1980, s. 11)

Contribution = 2 years (LA 1980, s. 10)

Judgments = 6 years

Question 3

When does time start running for limitation period?

Answer 3

Time starts running when: elements of cause of action exist:

• contract = breach
• negligence = damage

For contract -) damage NOT essential element. But negligence REQUIRES damage. For contract breach =

• Non-payment of price - Time runs from the contractual date for payment
• Breach of implied terms as to quality- Time runs from delivery

Question 4

What does limitation do with parts of the day?

Answer 4

Parts of a day = Law ignores parts of a day. EXAMPLE: accident 22.10.19. Limitation starts running on 23.10.19. 3 years later = 22.10.22 (last day within limitation). 23.10.22 = time barred.

Time STOPS running when = claim is “brought”. Court will date stamp letters received seeking to issue CF by post. Court may not issue CF straight away, but limitation stops when claim is brought. Time runs from following day cause of action arose.

Question 5

DISTINCTION between issue and brought =

Answer 5

Time stops running when CF + issue fee are DELIVERED to court. This is last event in Claimant’s control.

Question 6

LIMITATION

EXTENSION

DISABILITY

Time doesn’t run while C under Legal disability, applies to:

Answer 6

1. Children;
2. Mental incapacity

You need to be under legal disability on the DATE of accrual. For mental incapacity, time doesn’t run if mental incapacity on date when right of action accrued. But later onset of mental incapacity doesn’t stop time running.

Time starts to run on their 18^th birthday.

Question 7

LIMITATION

POSTPONEMENT

Fraud LIMITATION

Answer 7

Time doesn’t run until C discovers fraud, or could with reasonable diligence have discovered it.

Question 8

LIMITATION

POSTPONEMENT

Concealment LIMITATION

Answer 8

Where D deliberately conceals wrongdoing from C, time doesn’t run until C discovers concealment, or could with reasonable diligence have discovered it.

Question 9

LIMITATION

POSTPONEMENT

Mistake LIMITATION

Answer 9

Time doesn’t run until C discovers mistake, or could with reasonable diligence have discovered it.

Question 10

Limitation

CONTRIBUTION CLAIMS

Answer 10

= 2 years from relevant date

Question 11

LIMITATION

CONTRIBUTION CLAIMS = 2 years from relevant date which is:

Answer 11

1. Final judgment on original claim
2. Date of award (if arbitrated)
3. Settlement
4. Date person agreed to amount he would make contribution

Time runs when liability crystallises.

Question 12

LIMITATION

JUDGMENT =

time

Answer 12

6 years from date judgment became enforceable.

Question 13

Whenever the judgment had limitation, it takes effect:

Answer 13

Judgment takes effect from day its given or other date if specified. Party MUST comply with money judgment within 14 days (inc. costs). Don’t need to produce paper or get it stamped.

Question 14

What is the judgment limitation

Interest on judgment?

Answer 14

Payable at 8%. Where interest payable, it runs from date judgment given. Limitation: 6 years from date interest becomes due.

Question 15

limitation

Tort

TIME LIMIT

Answer 15

6 years.

Question 16

LIMITATION

TORT = 6 years. EXCEPTION:

Answer 16

1. Personal injury = 3 years, from accident or knowledge
2. Fatal accident – 3 years from death or knowledge.
3. Latent damage

If V survives 3 years + a bit then dies = claim dies. If claim time-barred when died = don’t take 3 years from death. A Fatal accident claim cannot be brought if already time barred before V died! Court has no discretion there.

Question 17

Time starts running in PI claim when C knows (knowledge):

Answer 17

1. Injury was significant;
2. Injury attributable to alleged default
3. Identity of D
4. Vicarious liability: identity of wrongdoer.

If you don’t know these thins, time wont run against you until: you found out or could have found out, i.e constructive knowledge.

Question 18

What is the test for PI limitation claims?

Answer 18

• Knowledge that acts were negligence is irrelevant.
• Absolute knowledge is NOT the test: rather it’s knowing a REAL POSSIBILITY.
• Claimant is fixed with constructive knowledge of facts reasonably to be acquired from observable facts or seeking expert advice.

Question 19

What is “Significant injury”?

Answer 19

if C would reasonably have considered it sufficiently serious to justify proceedings against D who doesn’t dispute liability+ able to satisfy judgment.

Question 20

What is:

Constructive knowledge

Answer 20

Turns on what C ought reasonably to have done. Court MUST take into account injury C suffered.

A reasonable C who suffered significant injuries will seek professional advice into cause of their problems.

BOP – on D to show C knew injury was significant.

Question 21

DISCRETIONARY: “Disapplication” of PI limitation period

DON’T call this “extending time” = it is a “disapplication”

TEST:

Answer 21

Court MAY disapply 3 year limitation period for PI CLAIMS if:

1. Equitable;
   
   1. On taking balance between prejudice suffered by C; and
   2. Prejudice to D

Question 22

DISCRETIONARY: “Disapplication” of PI limitation period

In assessing the balance of prejudice:

Answer 22

1. Court MUST consider: “All circumstances”; and
2. 6 factors
   
   1. Length of + reasons for delay of C
   2. Extent the evidence adduced/likely to adduce by C or D is likely to be less cogent than if action brought within time
   3. Conduct of D after cause of action + extent D responded to requests made by C
   4. Duration of disability arising after accrual.
   5. Extent C acted promptly and reasonably only he had knowledge
   6. Steps taken by C to obtain medical, legal or expert advice + nature of advice.

Question 23

LATENT DAMAGE

ONLY applies to

Answer 23

TORT CLAIMS, NOT: tort cases with PI, and NOT contractual negligence.

Question 24

LATENT DAMAGE

When is the limitation period?

Answer 24

• 6 years from accrual,. i.e. date
• Alternative period 3 years from “starting date” = when C “knows”
  
  • Claimant suffered “material” damage
  • Damage attributable to allegedly negligent act or omission
  • Identity of the defendant
  • Identity where there is vicarious liability
• Time nevertheless runs when C has “constructive knowledge”
• Knowledge of law = irrelevant
• There is a “longstop” of 15 years from relevant act or omission.

THERE IS NO DISCRETION FOR COURT TO DISAPPLY LIMITATION HERE.

Question 25

STRIKING OUT

Striking out = court ordering written material to be deleted so it cant be relied upon. Court MAY strike out if:

Answer 25

1. SoC discloses no reasonable grounds for bringing or defending the claim
2. SoC is an abuse of court’s process or obstruct just disposal of proceedings; or
3. Failure to comply with rule, PD or Court order