Limitation Notes

LIMITATION

• limitation = procedural defence - D must set out in SoC

• C still has cause of action BUT cannot be enforced

4 Questions:

1. Is the claim for PI? - overrides other limitation periods

2. What is the date of accrual? - starts time running

3. Has claim been brought within limitation?

4. If not – can limitation be disapplied?

1. PI CLAIM?

• = all claims where remedy includes damages for PI (including anxiety, stress, failure to treat a condition)

2. DATE OF ACCRUAL OF A CAUSE OF ACTION

• = date substantive elements of claim present

• time runs from day after action arises - parts of days ignored

PI (3 years)

• accrual = date of damage OR date of knowledge

Tort (6 years)

• negligence

  • accrual = date damage sustained

  • claims against solicitors

    • negligent advice - date advice is acted upon

    • negligently allowing claim to be struck out - date C had no arguable basis for avoiding strike out

    • negligent property valuation - date transaction entered (unless no loss - date value of property falls below value of loan)

• continuing torts - give rise to a fresh cause of action each time damage suffered

• conversion - date D deals with goods in way consistent with rights of owner (after 6 years C's title extinguished)

Defamation

• from date of wrongful act (actionable per se)

Fatal accidents and death (PI 3 years)

• claim brought by: dependants OR PR (estate)

• accrual = date of death (OR date of knowledge of dependant)

Defective products

• accrual = date of damage (to property or PI) (OR date of knowledge (PI))

Contract (6 years)

• accrual = date of breach (no need to prove loss)

• breach =

  • non-payment of goods - contractual date payment due

  • non payment for work - completion of work

  • defective goods - date of delivery

  • defective work - substantial completion of work

  • late delivery of goods - contractual date delivery due

  • claim against surety - date of default by debtor

  • anticipatory repudiatory breach - date of acceptance (termination)

• repeated breaches - C can claim for all breaches within 6 years before claim brought

• claim for specific performance: usual time limits only apply by analogy

Recovery of land (12 years)

• accrual = date of adverse possession

  • D gains legal title if has actual possession (physical control) AND intention to possess (intention to exclude others) for 12 years

• registered land – D may apply for registration after 10 years' possession

  • notification sent to registered owner and chargees

  • if no counter-notice – D registered as legal owner free from all charges

  • if counter-notice – C has 2 years to evict

  • fail to evict – D may reapply for registration – automatically registered if still in possession

Contribution claims (2 years)

• accrual = date C's primary liability fixed, disregarding possible appeals

  • if determined by court - time runs from judgment

  • if fixed by agreement - time runs from date of settlement

JR

• accrual = date when grounds for application arose

LATER DATE OF ACCRUAL

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:

  • actual knowledge - what C actually knew; AND

  • constructive knowledge - what C ought to have known:

1. knowledge ascertainable by C without expert; AND

2. knowledge ascertainable with help of expert which it would have been reasonable to obtain

• date of knowledge

  • = date C first had knowledge that: N.B. burden of proving C's knowledge on D

1. the injury was significant

   1. what did C know and ought to have known about injuries (with / without expert)?

   2. would a reasonable person (objective) with that knowledge have considered injuries sufficiently serious to justify proceedings?

2. injury attributable in whole/part to wrongful act/omission

   1. broad knowledge act caused some damage; AND

   2. specific knowledge (w/advice if appropriate) that act caused specific damage in question

      • usually: when C / C's doctor concluded = real possibility D's acts caused C's injury, such that a reasonable person would investigate further

      • NOT required: knowledge actionable, sufficient knowledge to draft PoC

3. ID of D (party who caused injury)

Tortious negligence (other than PI) - latent property damage- ss 14A and B

• 2 alternative LPs

1. 6 years from accrual (usual for tort); OR

2. 3 years from starting date

   • = earliest date C knew (actual AND constructive knowledge - same principles as PI):

   1. relevant damage sufficiently serious to justify proceedings;

   2. damage attributable to negligence;

      1. broad knowledge of basis of complaint; AND

      2. real possibility negligence caused damage

   3. ID of D

-----AND-----

• longstop for bringing proceedings = 15 years from negligent act

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:

1. accidental wrongdoing: D takes steps to conceal breach after becoming aware of it; OR

2. 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

Claimant under a disability (under 18 OR of unsound mind)

• accrual = when C turns OR recovers

D acknowledges or part-pays

• If D acknowledges (in signed writing) title to land or a debt, or makes part payments limitation period renewed

SUMMARY TABLE OF LIMITATION PERIODS

Buy the full version of these notes or essay plans and more in our BPTC Civil Ligitation Notes.