Limitation

Question 0

When does time stop running?

Answer 0

When the claim is ‘brought.’

Question 1

What are examples of “breach” in contract?

Answer 1

1. Non-payment of price: time runs from contractual date for payment.
2. Breach of implied term as to quality: time runs from delivery.

Question 2

When is a claim ‘brought’?

Answer 2

The date the CF is sealed by court.

Posted CFs will be date stamped.

Question 3

What else must be delivered to court?

Answer 3

The issue fee.

Question 4

When will time not run?

Answer 4

When the C is under a legal disability. Eg: children; mental disability.

Question 5

From where will a cause of action in respect of personal injuries arise?

Answer 5

Nuisance, negligence, breach of statutory/contractual duty.

Question 6

Where will section 11 re personal injuries not apply?

Answer 6

Actions brought for damages under Protection of Harassment Act.

Question 7

When can action under the fatal accidents act not be brought?

Answer 7

If the death occurred when the person injured could no longer maintain an action and recover damages in respect of the injury.

Question 8

What is the consequence of a person disbarred under section 11 of LA 1980 then dying?

Answer 8

No account shall be taken of the possibility of that time limit being overridden under section 33.

Question 9

What is the time limit in respect of the fatal accidents act? And when does it start from?

Answer 9

1. Three years
2. From either the date of death, or the date of knowledge of the person for whose benefit the action is brought, whichever is the later.

Question 10

What if there are different dependents claiming under the fatal accidents act?

Answer 10

If the dates of knowledge differ, the date of knowledge from which the limitation period is to be calculated must be applied separately to each of them.

Question 11

What is a reference to the date of knowledge?

Answer 11

A reference to the date on which they first had knowledge of one of the relevant facts (see later question).

Question 12

What factors are relevant to the date of knowledge?

Are they cumulative or disjunctive?

Answer 12

Date on which they had knowledge that:

1. The injury in question was significant
2. The injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty
3. The identity of the defendant
4. If it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant.

The factors are cumulative.

Question 13

What is to be made of the knowledge of negligence etc as matters of law?

Answer 13

Knowledge that any acts or omissions did or did not as a matter of law involve negligence, nuisance and breach of duty is irrelevant.

Question 14

When is an injury ‘significant’?

Answer 14

If the person:

i) whose state of knowledge is in question
ii) would reasonably have considered it sufficiently serious
iii) to justify his instituting proceedings for damages
iv) against a defendant who did not dispute liability and was able to satisfy a judgement.

Question 15

What does a person’s ‘knowledge’ include the purposes of the Limitation act?

What type of knowledge is this?

Answer 15

Knowledge which he might reasonably have been expected to require:

a) from facts ascertainable or observable by him, or
b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek.

Constructive knowledge.

Question 16

As regards constructive knowledge, when will a person not be fixed with knowledge of facts? What is the condition?

Answer 16

So long as he has taken all reasonable steps to obtain, and where appropriate, to act on, that advice.

Question 17

When will the special time limit for non-PI negligence actions arise?

What type of damage is this?

Answer 17

When the starting date for reckoning the period of limitation falls after the date on which the cause of action.

Question 18

When may an action in negligence for damages other than personal injury not be brought?

Are the options conjunctive or disjunctive?

Answer 18

1. Six years from the date on which the cause of action accrued, or
2. Three years from the starting date, if that period expires later than six years from the date on which the cause of action accrued.

Disjunctive.

Question 19

What will be the starting date for reckoning the period of limitation?

Had both what?

Answer 19

The earliest date,
on which the plaintiff,
or any person in whom the cause of action was vested before him,

first had both:

i) the knowledge required to bring an action for damages in respect of the relevant damage
ii) and the right to bring such an action

Question 20

What two things form the definition of ‘the knowledge required to bring an action for damages in respect of the relevant damage’?

Answer 20

Both:

Question 21

What are the ‘material facts about damage in respect of which damages are claimed’?

Answer 21

a) Facts about the damage
b) as would lead a reasonable person who had suffered such damage
c) to consider it sufficiently serious
d) to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgement.

Question 22

What are the other facts?

Cumulative or disjunctive?

Answer 22

1. The damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence
2. The identity of the defendant
3. If it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the addition of facts supporting the bringing of an action against the defendant

Cumulative

Question 23

Apart from PI cases, when will the seeking of appropriate expert advice become relevant?

And when will the person not be fixed with knowledge?

Answer 23

To a person’s knowledge regarding latent damage.

As with PI cases, where the fact is ascertainable only with the help of expert advice and he has taken all reasonable steps to obtain (and where appropriate to act on) that advice

Question 24

When will action for damages in negligence, other than for personal injury, not be brought in any event?

What is this called?

Answer 24

15 years from the date on which that occurred any particular ‘act or omission.’

Long stop.

Question 25

What are the elements regarding acts or omissions with regards to long stop claims?

Answer 25

Any act or omission:

1. Which is alleged to constitute negligence, and
2. To which the damage in respect of which damages are claimed is alleged to be attributable, in whole or in part

Question 26

The long stop acts as a defence even if what? By when?

Answer 26

1. The cause of action has not yet accrued, or
2. The date which is the starting date for reckoning the period has not yet occurred,

Before the end of the period of the limitation.

Question 27

When may an action to recover any land not be brought?

Answer 27

After the expiration of 12 years.

Question 28

What is the effect of the limitation period if the person to whom the cause of action accrued was under a disability? on what date? How to choose between end of disability/death?

Answer 28

The action maybe brought at any time before the expiration of six years from the date when he ceased to be under the disability or died notwithstanding that the period of limitation has expired.

Date of accrual.

Whichever arises first.

Question 29

What if the action first accrues to someone not under a disability and then is claimed by someone under a disability?

And what if on the death of a person under a disability at the date of death, that another person under a disability claims under that course of action?

Answer 29

The disability exception will not apply.

Question 30

In what instances will the limitation period of claims following a disability apply?

Answer 30

1. Contributions.

2. Personal injury cases.

Question 31

Where else will an action have its limitation period extended by three years from the date when C ceased to be under a disability/died?

Answer 31

In relation to negligence actions where facts relevant to cause of action are not known at date of acrrual:

Three years + six years from date on which cause of action accrued

Or

Three years + three years from starting date for reckoning the period of limitation.

Question 32

When may an action not be brought after the end of a particular limitation period?

Answer 32

Latent damage: 15 years (long stop period).

Question 33

In what three instance will the limitation period “not begin to run”?

Answer 33

1. the action is based upon the fraud of the Defendant; or
2. any fact relevant to the C’s right of action has been deliberately concealed from him by D, or
3. the action is for relief from the consequences of a mistake.

Question 34

Following the three instances in which the limitation period will not run, when will it (be deemed to) run again?

Answer 34

Until C has discovered the fraud, concealment or mistake or could with reasonable diligence have discovered it.

Question 35

When is there deemed to be deliberate concealment of breach of duty?

Answer 35

Where in the circumstances the breach is unlikely to be discovered.

Question 36

Where will exceptions of fraud/concealment/mistake not apply?

Answer 36

In regards to a Fatal Accidents claim.

Question 37

Which types of damage limitation periods will not apply in event of fraud/concealment/mistake?

What is the limitation period as a result?

Answer 37

ss14A and 14B: date of knowledge/long stop cases.

Six years from date of discovery.

Question 38

When may a Court direct that s11 provisions (three year PI claims) shall not apply?

What is effect on limitation period?

Answer 38

If it appears to the court that it would be equitable to allow an action to proceed.

It is disapplied.

Question 39

What will the court, in assessing disapplication of s11, have regard to?

Answer 39

The degree to which:

1. the 3 year limitation period prejudices the C/any person whom he represents; and
2. any decision to disapply would prejudice D/any person whom….

Question 40

Which type of action limitation period cannot be disapplied? Except when:?

Answer 40

Fatal Accidents claims, except where the reason the deceased could not maintain an action is due to 3 year PI limit.

Question 41

When deciding whether to disapply, what shall Court have regard to?

Answer 41

All the circumstances of case, including:
1. the length of/reasons for delay on part of C;

2. Twe, having regard to delay, the evidence (likely to be) adduced by C/D is likely to be less cogent than if action had been brought within 3 year limitation period/Fatal Accidents period;
3. Conduct of D after cause of action arose, including twe he responded to requests reasoanably made by C for information/inspection for purpose of ascertaining facts which were/might be relevant to C’s cause of action vs D;
4. the duration of any disability of C arising after date of accrual/cause of action;
5. twe C acted promptly and reasonably once he knew whether/not act/omission of D, to which injury was atrributable, might be capable at that time of giving rise to action for damages,
6. the steps, if any, taken by C to obtain medical, legal or other expert advice and the nature of such advice he may have received.

Question 42

What if Court is considering disapplying claim brought on part of deceased following end of 3-year limitation period?

Answer 42

Court shall have regard in particular to length of, and reasons for, delay on part of C.

Question 43

What is relevance to date of knowledge of deceased with regards to disapplying 3 year limitation period?

Answer 43

Circumstances of case considered by Corut will include “appropriate modifications”