Unit 2 - Limitation

Question 1

Section 2 Limitation Act states that actions founded on tort expire…?

Answer 1

Six years from the date on which the cause of action accrued.

Question 2

Section 5 Limitation Act states that actions founded on simple contract expire…?

Answer 2

Six years from the date on which the cause of action accrued.

Question 3

Section 10 LA states that contribution claims expire…?

Answer 3

Two years from the date on which the right accrued (either day of judgment, day of award or where the defendant agreeds to pay).

Question 4

Section 11 LA applies a special time limit for what kind of action?

Answer 4

Damages for negligence, nuisance or breach of duty in respect of personal injuries.

Question 5

What is the limitation period for section 11 LA claims, where the person has not died?

Answer 5

Section 11(4): either three years the date where the cause of action accrued, or the date of knowledge (if later) of the injured person.

Question 6

What is the special time limit for actions under Fatal Accidents legislation?

Answer 6

S12(2) - three years from date of death, or date of knowledge of the person for whose benefit the action is brought (whichever is later).

Question 7

The date of knowledge refers to the day on which the person had knowledge of which FOUR facts?

Answer 7

Section 14(1)(a)-(d):

• the injury was significant
• the injury was attributable in whole/part to an act/omission constituting negligence, nuisance or BoD
• the identity of the defendant
• if alleged that the act/omission was not that of the defendant, the identity of the new person and additional facts supporting bringing a claim against them.

Question 8

What determines if an injury is significant under section 14?

Answer 8

Section 14(2): For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.

Question 9

What does ‘knowledge’ under section 14 include?

Answer 9

a person’s knowledge includes knowledge which he might reasonably have been expected to acquire—

(a) from facts observable or ascertainable 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;

but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.

Question 10

What is the purpose of extending limitation periods under section 14?

Answer 10

To overcome the rule that tort actions accrue when damage first occurs, rather than when the claimant first discovers liability.

Question 11

According to Nash v Eli Lilly, what is knowledge?

Answer 11

“A state of mind of sufficient certainty that, for the claimant, reasonably justified embarking on the preliminaries to making a claim for compensation, and once gained, cannot be lost”

Question 12

TRUE of FALSE. To constitute knowledge, a claimant must know they have a possible cause of action.

Answer 12

FALSE.

Question 13

What actions does section 14A apply to?

Answer 13

Negligence, other than that covered by section 11 (so no personal injury!)

Question 14

What is the limitation period for section 14A claims?

Answer 14

S14A(4):

• Six years from cause of action accrual;
• Three years from date of knowledge (if later expiry)

Question 15

TRUE of FALSE: knowledge requirements for section 14A are the same as for section 14?

Answer 15

TRUE.

Question 16

Section 14B provides an overriding time limit for non-personal injury negligence claims. How long is this limitation period?

Answer 16

15 years from date of act/omission alleged to constitute negligence.

Question 17

Is there a time limit for actions to enforce judgments?

Answer 17

Yes. Six years from the date on which the judgment became enforceable (see section 24).

Question 18

How long is the time limit extension for cases of disability under section 28?

Answer 18

Six years from the date where the individual stopped being disabled/died.

However, contribution claims are two years, personal injury negligence claims are three years and Fatal Accidents claims are also three years.

Question 19

What effect does fraud, concealment or mistake have upon a limitation period?

Answer 19

Section 32: period of limitation does not begin until C has discovered/could reasonably have discovered.

However, it also means section 14A and 14B do not apply. Regular limitation period applies.

Question 20

The discretionary exclusion under section 33 requires regard to what factors?

(7)

Answer 20

a) the LENGTH of, and the REASONS for, the delay on the part of the plaintiff;
(b) (IMPACT ON COGENCY OF EVIDENCE)the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11, by section 11A or (as the case may be) by section 12;
(c) DEFENDANT’S CONDUCT after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant;
(d) the DURATION OF ANY DISABILITY of the plaintiff arising after the date of the accrual of the cause of action;
(e) the extent to which the plaintiff ACTED PROMPTLY AND REASONABLY once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;
(f) the steps, if any, taken by the plaintiff to OBTAIN EXPERT ADVICE and the nature of any such advice he may have received.

Question 21

What constitutes a disability for the purposes of the Limitation Act?

Answer 21

• Infancy

- Lacking capacity under MCA.

Question 22

When does time start to run for a limitation period?

In particular, when does accrual occur for:

Breach of contract

Torts

Torts requiring proof of damage (except PI)

Answer 22

The day following the date of accrual (at midnight).

For breach of contract, accrual occurs at moment of breach.

For torts, accrual occurs at date of wrongful act.

For torts requiring proof of damage (except personal injury), accrual occurs the date on which the damage occurred.

Question 23

TRUE or FALSE. Limitation is a defence.

Answer 23

TRUE. C is never barred from making a claim; D must raise the defence.

Question 24

TRUE or FALSE: litigation friends are mandatory for disabled individuals to bring claims under the LA?.

Answer 24

FALSE. Children can have them, but they are mandatory for mentally incapacitated individuals. See CPR 21.2

Question 25

Adams v Bracknell Forest [2004], the claimant was unable to read or write. Was it be reasonably expected of him to disclose this to his doctor?

Answer 25

Yes. There is no reason why dyslexic people would not be as curious about the root of their problems.

Question 26

In Kew v Bettamix Ltd [2006] , was it held that constructive knowledge dated from when K’s doctors first told him his symptoms might be attributable to vibration exposures at work?

Answer 26

Yes. Although K was not told expressly at that time of the causative link, the doctor’s conclusions demonstrated that there was a real possibility that his working conditions had caused the symptoms and, for a reasonable man, required investigation

Question 27

TRUE or FALSE: Wilkinson v Ancliff BLT Ltd [1986] said that a defendant needs all the details necessary to prove a case before the limitation period starts running.

Answer 27

FALSE. Time runs from the date when a plaintiff knows that he has a possible case against the potential defendants; it is not necessary that he should have all the details available to prove his case for time to start running.

Question 28

Hayward v Fawcetts [2016] said that the date of requisite knowledge for the purposes of section 14A(8)(a) was not when H first knew he might have a claim for damages, but instead when…

Answer 28

H first knew enough to justify setting about investigating the possibility that F’s advice was defective.

Question 29

Eagle v Redlime [2011] said what about knowledge of drainage system damage / wall cracks?

Answer 29

C’s knowledge that there had been subsidence causing the drainage system to sink and cracking to the walls was sufficient to lead a reasonable person to consider it sufficiently serious to justify commencing proceedings for damages as stipulated by section 14A(7).

Knowledge, for the purposes of section 14A(8) does not mean knowing for certain.

Full knowledge of the extent of damage is not required to start time running.

Question 30

When might a court allow an amendment to a statement of case if the relevant limitation period has ended?

Answer 30

CPR 17.4
(2)The court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings.

(3) The court may allow an amendment to correct a mistake as to the name of a party, but only where the mistake was genuine and not one which would cause reasonable doubt as to the identity of the party in question.

Question 31

TRUE of FALSE: where it is reasonably arguable that a limitation period has expired before an amendment is made, the onus is on the defendant to show that the amendment does not fall within the provisions of r17.4 or r19,5,

Answer 31

FALSE. The onus is on the applicant to prove that it DOES fall within either rule.

Question 32

Where there is a dispute as to whether or not a new claim to be raised by amendment is statute-barred, what must the claimant prove?

Answer 32

Either:

• D’s limitation period defence is not reasonably arguable; or
• the amendment falls within the provisions of r17.4 or 19.5

Question 33

Rule 19.5(3): The addition or substitution of a party after the limitation period has ended is only necessary where:

Answer 33

(a) the new party is to be substituted for a party who was named in the claim form in MISTAKE for the new party;
(b) the claim CANNOT properly be carried on by or against the original party unless the new party is added or substituted as claimant or defendant; or

Question 34

True or false. If Rule 19.5 is satisfied, the court must accept addition / substitution.

Answer 34

FALSE. It is a discretion to be exercised in accordance with the overriding objective.

Question 35

Mistake under r19.5 must be a mistake as to…?

Answer 35

Name, rather than identity.

It must also be a causally relevant mistake.

Question 36

What is the Sardinia Sulcis test for mistake?

Answer 36

(4) the test is: is it possible to identify the intended defendant “by reference to a description more or less specific to the particular case”?; if it is, it is a mistake of the type covered by r.19.5(3)(a);
(5) thus, if the claimant gets the right description but the wrong name for their intended defendant, there is unlikely to be any doubt as to the identity of the person intended to be sued; but if they get the wrong description, it will be otherwise;
(6) this test might allow the substitution of a new defendant, unconnected with the original defendant and unaware of the claim until after the expiry of a relevant limitation period; but any potential injustice can be avoided by the exercise of the court’s discretion (see para.19.5.1).

Question 37

Must a defendant give details of the expiry of any relevant limitation period relied upon?

Answer 37

Yes. See 16PD.13.1

Question 38

Any new claim made in the course of an action shall be deemed to be a separate action commencing:

Answer 38

On the date on which those proceedings were commenced (for new claims by way of third party proceedings);

or on the same date as the original action for other new claims.

(section 35 LA)

Question 39

What counts as a new claim under section 35?

Answer 39

A case involving either:

(a) the addition or substitution of a new cause of action; or
(b) the addition or substitution of a new party;

Question 40

What counts as third party proceedings?

Answer 40

Proceedings brought in the course of any action against a person not previously a party to the action, other than proceedings brought by joining any such person as defendant to any claim already made in the original action by the party bringing the proceedings.

Question 41

What does section 35 LA set out?

Answer 41

The rules for adding or substituting parties to an ongoing claim, as well as the addition or substitution of a new cause of action.

Question 42

The Court won’t allow a new claim for an original action after limitation period expiry. Under section 35(5), when will the court allow new causes of action/parties to be added/substituted?

Answer 42

In the case of a claim involving a new cause of action, if the new cause of action arises out of the same facts or substantially the same facts as are already in issue on any claim previously made; and

In the case of a claim involving a new party, if the addition or substitution of the new party is necessary for the determination of the original action.

Question 43

CPR 17.4 addresses:

Answer 43

amendments to statements of case after the end of a relevant limitation period

Question 44

When will the court allow an amendment under CPR 17.4?

Answer 44

Where the effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as the existing

OR: To correct a mistake as to the name of a party, where the mistake was genuine.