Limitation Period

Question 1

What is the cause of action?

Answer 1

This will determine how long the primary limitation period is.

Question 2

Contract (LP and Accrual)

Answer 2

• 6 years
• Date of Breach

(e.g. where a contract was breached on 20th August, time will start to run that night, at midnight, that being the start of the day following the date of accrual).

Question 3

Tort and other claims for personal injury/fatal accidents

Answer 3

6 years

Question 4

Personal injury claims

Answer 4

3 years

i. Date of accident/injury; or
Date of knowledge

Question 5

Fatal accidents Act 1976 claims (brought by dependents)

Answer 5

3 years

i. Date of death, OR
Date of dependent’s knowledge of death

Question 6

Contribution claims

Answer 6

2 years

Date C’s liability established

(i.e. judgement or settlement)

Question 7

Tort - Negligence

Latent Damage

Answer 7

6 years or 3 years and Long Stop 15 years from negligent act

Date of damage; OR
Starting Date

Question 8

On what date will time begin to run?

Answer 8

Time generally starts to run on the day following the date of accrual of the cause of action. Parts of days are disregarded.

Question 9

On what date will limitation period expire?

Answer 9

The Anniversary of the breach. But time will cease to run on the date the claimant issues proceedings.

Question 10

When does time stop?

Answer 10

Time stops on date action is brought. Therefore date C delivers all relevant documents to court to issue a claim (even if the court office is closed)

Note - exception - part 20 claims - time stops when claim issued!

Question 11

What are the three exceptions or qualifications applicable to the limitation period?

Answer 11

Even though it appears that you are “out of time”, LA 1980 contains a number of provisions which effectively exclude or qualify the ordinary limitation period. The most important are as follows:

(1) Latent Damage (ss.14A and 14B) (2) Disability (ss.28 and 38(2)(3)) (3) Fraud, Concealment, Mistake (s.32)

Question 12

What is Latent Damage (ss.14A and 14B)?

Answer 12

Ss 14A and 14B apply to negligence actions other than those involving personal injuries. Although latent damage is often a problem in relation to defective buildings, these provisions apply to all types of non-personal injuries negligence cases. Thus, s.14A provides for two alternative periods, that is, six years from accrual, or, if expiring later, three years from the starting date. Under s.14B, both periods are subject to a long stop period of 15 years.

Question 13

What is the exception for Disability (ss.28 and 38(2)(3))?

Answer 13

Under s.28, time does not run against a person under disability on the date the cause of action accrued. There are two categories of person under disability, namely, children (persons under the age of 18), and persons of unsound mind (persons who, by reason of a lack of capacity within the meaning of s.2 of the Mental Capacity Act 2005, are “unable to make a decision for [themselves] in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain”).

Question 14

What is the exception for Fraud, Concealment, Mistake (s.32)and what are the relevant LP and accrual for each?

Answer 14

Under the provisions of s.32, the limitation period is postponed in the case of fraud, concealment, or mistake.

Concealment, fraud, mistake:

• concealment of relevant facts by D
• time does NOT run when any fact relevant (= ought to be pleaded in PoC) to claim is being concealed by D
• accrual = when concealment discovered OR could’ve been with reasonable diligence

D deprived of limitation defence if:

a. accidental wrongdoing: D takes steps to conceal breach after becoming aware of it; OR
b. intentional wrongdoing: D conceals OR fails to disclose AND wrongdoing unlikely to be discovered for some time

Claim based on fraud:
accrual = when C discovers fraud; OR could have discovered it with reasonable diligence

claim based on mistake:
accrual = when C discovers mistake; OR could have discovered it with reasonable diligence

Question 15

How and why will discretionary exclusion of time limits for actions in respect of personal injuries or death work?

Answer 15

Balance of prejudice

• wide discretion to override 3 year LP where equitable for claim to proceed having regard to the balance of prejudice between the parties
• court shall have regard to all the circumstances of the case AND particular factors - many, i.e.:

Length of delay
Reasons for the delay on the part of C

If C issues a second claim:

• if C issued claim during LP BUT allowed claim form to expire, then C issues a second claim, NOT abuse of process
• court can disapply limitation period in second claim and take fact it is a second claim into account in balance of prejudice
  14. What is the statue that governs limitations?

Question 16

What does date of knowledge mean in PI cases?

Answer 16

PI - date of knowledge: - s14(1) LA 1980
- rule: PI runs from date of injury OR date of knowledge if later

knowledge - C taken to have:

1. actual knowledge - what C actually knew; AND
2. constructive knowledge - what C ought to have known:
   - knowledge ascertainable by C without expert; AND
   - knowledge ascertainable with help of expert which it would have been reasonable to obtain

Question 17

Date of Knowledge (non-PI) cases

Answer 17

Date C first had knowledge of that:

1. the injury was significant
2. Injury attributable in whole/part to wrongful act/ommission
3. ID of D

Note - heavy burden on C proving knowledge on D

Question 18

What is the statue that governs limitations?

Answer 18

The Limitation Act 1980

Question 19

What 4 questions should you ask yourself about limitation period?

Answer 19

1. Is the claim for PI? -

as this overrides other limitation periods
This means all claims where remedy includes damages of PI (including anxiety, stress, failure to treat condition etc)

2. What is the date of accrual? - starts time running
   i. This means date substantive elements of the claim present
   ii. Time runs from day after action arises - parts of days ignored.
3. Has the claim been brought within limitation period?
4. If not - can limitation be disapplied?

Question 20

What does accrual of causes of action mean?

Answer 20

to happen, to come into force, to arise etc.

Question 21

7. What is the limitation in sexual abuse cases?

Answer 21

This area of procedure has developed in recent years

In Hoare, the House of Lords held, departing from their decision in Stubbings v Webb [1993] AC 498, that a claim for damages for personal injuries caused by a sexual assault had a limitation period of three years from the date when the victim first considered the injury sufficiently serious to justify proceedings (although judges could extend that period if thought equitable). In determining that date, the test was whether a reasonable person with the claimant’s knowledge would have considered the injury sufficiently serious. Such personal characteristics of the claimant as might have prevented him from acting as a reasonable person would have were a matter for any exercise of judicial discretion.

Question 22

Can limitation be used as a defence?

Answer 22

It should be remembered that the fact that the limitation period has expired does not prevent a Claimant from issuing a claim. The Defendant, however, can defeat the claim if he or she chooses to plead limitation as a defence. If the Defendant fails to do so the Claimant can succeed on the claim.

Limitation is a procedural defence. D must set it out in statement of case. C still has cause of action BUT cannot be enforced if limitation accepted.

Question 23

Can the limitation period be disapplied?

Answer 23

Although other examples exist, probably the most important is the discretionary power of the court, under LA 1980, s.33, to disapply the limitation period in personal injuries cases.

Question 24

What happens once time starts running?

Answer 24

It dosnt stop - so in the case of disability once someone becomes of sound mind/turns 18 then the clock starts and it is not stopped by a further/later disability