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Limitation Allocation Notes

BPTC Law Notes > BPTC Civil Ligitation Notes

This is an extract of our Limitation Allocation document, which we sell as part of our BPTC Civil Ligitation Notes collection written by the top tier of City Law School students.

The following is a more accessble plain text extract of the PDF sample above, taken from our BPTC Civil Ligitation Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

?Allocation of business between High Court & County Court:
o High Court & County Court both have concurrent jurisdiction over all tort and contract claims.
o However, there is guidance to follow about commencement, where you start claims based on value of claims.
Counting limitation periods.
-Zoan v Rouamba: what does 'from' mean---you don't count the actual day the damage was caused, day 1 counts as the day after that.
-SO: if accident occurs on 1 Jan 2017, and you have 3 years limitation
(a PI claim): would expire at midnight on 1 Jan 2020.

Limitation Act 1980
Actions in tort
S2 - Time Limit for actions founded on tort
An action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued.

Actions in contract
S5 - Time Limit for actions founded on simple contract
An action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued.

Contribution claims
S10 - Special Time limit for claiming contribution
(1)

Where under section 1 of the Civil Liability (Contribution) Act 1978 any person becomes entitled to a right to recover contribution in respect of any damage from any other person, no action to recover contribution by virtue of that right shall be brought after the expiration of two years from the date on which that right accrued [i.e. from date of judgment/award given].

(2)

[[what is 'date on which that right accrued?: = "the relevant date", to be ascertained as provided in subsections (3) and (4) below.

(3)

If the person in question is held liable in respect of that damage---
(a)
by a judgment given in any civil proceedings; or
(b)
by an award made on any arbitration;
-the relevant date shall be the date on which the judgment is given,
or the date of the award (as the case may be). For the purposes of this subsection no account shall be taken of any judgment or award given or made on appeal in so far as it varies the amount of damages awarded against the person in question.
(4)

[[if the parties settle:]] If, in any case not within (3), the person in question makes or agrees to make any payment to one or more persons in compensation for that damage (whether he admits any liability in respect of the damage or not)
-the relevant date = the earliest date on which the amount to be paid by him is agreed between him (or his representative) and the person
(or each of the persons) to whom the payment is to be made.

(5)

An action to recover contribution shall be one to which sections 28 [extension for disability], 32 [postponement of limitation period re fraud/concealment/mistake], 33A
and 35 of this Act apply, but otherwise Parts II and III of this Act (except sections 34,
37 and 38) shall not apply for the purposes of this section.

Personal Injury & Fatal Accidents cases
S11 - Special time limit for actions in respect of personal injuries
(1)

This section applies to any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person.

(1A)

This section does not apply to any action brought for damages under section 3 of the Protection from Harassment Act 1997.

(2)

None of the time limits given in the preceding provisions of this Act shall apply to an action to which this section applies.

(3)

An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) or (5) below.

(4)

Except where subsection (5) below applies, the period applicable is three years from
---
(a)
the date on which the cause of action accrued; OR
(b)
the date of knowledge (if later) of the person injured.

(5)

If the person injured dies before the expiration of the period mentioned in subsection (4) above ? the period applicable as respects the cause of action surviving for the benefit of his estate under s1 Law Reform (Miscellaneous
Provisions) Act 1934 = three years from THE LATER OF:---
(a)
the date of death, or
(b)
the date of the personal representative's knowledge;

(NB, s33 ? discretionary exclusion of time limit for PI claims, where equitable).
(6)

For the purposes of this section "personal representative" includes any person who is or has been a personal representative of the deceased, including an executor who has not proved the will (whether or not he has renounced probate) but not anyone appointed only as a special personal representative in relation to settled land; and regard shall be had to any knowledge acquired by any such person while a personal representative or previously. (7)

If there is more than one personal representative, and their dates of knowledge are different, subsection (5)(b) above shall be read as referring to the earliest of those dates.

S12 - Special time limit for actions under Fatal Accidents legislation
(1)

An action under the Fatal Accidents Act 1976 shall not be brought if the death occurred when the person injured could no longer maintain an action and recover damages in respect of the injury (whether because of a time limit in this Act or in any other Act, or for any other reason).
Where any such action by the injured person would have been barred by the time limit in section 11 or 11A of this Act, no account shall be taken of the possibility of that time limit being overridden under section 33
[discretionary exclusion of time limit for PI/death].
(although presumably the extension re fraud/concealment/mistake still applies even if s12(1) does???)

(2)

None of the time limits given in the preceding provisions of this Act shall apply to an action under the Fatal Accidents Act 1976, but no such action shall be brought after the expiration of three years from the LATER OF---
(a)
the date of death; or
(b)
the date of knowledge of the person for whose benefit the action is brought;

(NB, s33 ? discretionary exclusion of time limit for PI/fatal accident claims, where equitable).

(3)

An action under the Fatal Accidents Act 1976 shall be one to which sections 28
[fraud/concealment/mistake], 33 [discretionary exclusion of time limit for PI/
death], 33A, 33B and 35 of this Act apply, and the application to any such action of the time limit under subsection (2) above shall be subject to section 39; but otherwise Parts II and III of this Act shall not apply to any such action.

S14 - Definition of 'date of knowledge' for purposes of s11 & 12
(1) Subject to subsection (1A) below, in sections 11 and 12 of this Act references to a person's date of knowledge are references to the date on which he first had knowledge of the following facts---
(a)

(b)

(c)
(d)

that the injury in question was significant
[i.e.--> reasonably considered sufficient serious to justify instituting proceedings for damages against a D who did not dispute liability &
was able to justify judgment];
and that 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; and the identity of the defendant, and 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;

knowledge of 'matter of law' irrelevant: and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant. (1A)

In section 11A of this Act and in section 12 of this Act so far as that section applies to an action by virtue of section 6(1)(a) of the Consumer Protection Act 1987 (death caused by defective product) references to a person's date of knowledge are references to the date on which he first had knowledge of the following facts---
(a)
such facts about the damage caused by the defect as would lead a reasonable person who had suffered such damage to consider 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; and
(b)
that the damage was wholly or partly attributable to the facts and circumstances alleged to constitute the defect; and
(c)
the identity of the defendant;
but, in determining the date on which a person first had such knowledge there shall be disregarded both the extent (if any) of that person's knowledge on any date of whether particular facts or circumstances would or would not, as a matter of law, constitute a defect and, in a case relating to loss of or damage to property,
any knowledge which that person had on a date on which he had no right of action by virtue of Part I of that Act in respect of the loss or damage.

(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.

(3)

For the purposes of this section a person's "knowledge" includes knowledge which he might reasonably have been expected to acquire---
(a)
(b)

from facts observable or ascertainable by him, or 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.

Commentary - 8-38 Whitebook, on s14(1), date of knowledge?S14(1): extends limitation period from the date of knowledge of the relevant person, if this is later than the date of the accrual of the cause of action.
This fundamental development designed to overcome the rule that in actions in tort the cause of action accrues when the damage first occurs and not when the claimant first discovers the same, by which time their action may already have become statutebarred
For the purposes of both ss.11 and 12 of the Act, a person's date of knowledge is defined (see s.14 of the 1980 Act) as a reference to the date on which he had knowledge of the four following facts, namely:
o (a) that the injury in question was significant; and (b) that 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; and (c) the identity of the defendant; and (d)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.
o These four facts are stated conjunctively. The claimant must have knowledge of them all. But they are exhaustive. ??

"Knowledge" imports a state of mind of sufficient certainty that, for the claimant, reasonably justified embarking on the preliminaries to making a claim for compensation. Once knowledge is gained, it cannot be lost.
The court has firmly rejected the argument that the claimant must know that he has a possible cause of action. It is erroneous to seek to anticipate how the case might ultimately be put---in terms of positive act or negligent omission.
It is specifically provided that ignorance of matters of law as to whether any act or omission involved negligence, nuisance or breach of duty is not relevant in determining whether a person had knowledge.

Latent damages claims (for property damage claims for negligence))
S14A - Special Time limit for negligence actions where facts relevant to cause of action are not known at date of accrual [[only applies to claims for property damage arising from negligence]] ? link to 15 year overriding time limit in s14B
(1)

This section applies to: any action for damages for negligence, other than one to which section 11 [[i.e. Personal Injury]] applies; WHERE the starting date for reckoning the period of limitation under subsection (4)(b) below falls after the date on which the cause of action accrued.

(2)

Section 2 of this Act shall not apply to an action to which this section applies.

(3)

An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) below.

(4)

That period is either---
(a)
six years from the date on which the cause of action accrued
(I.E. normal tort limitation period);
(b)
OR if later: three years from the 'starting date' as defined by subsection (5) below.

(5)

For the purposes of this section, the 'starting date' for the period of limitation under
(4)(b) above is the earliest date on which the plaintiff or any person in whom the cause of action was vested before him first had both:
-(1) the knowledge required for bringing an action for damages in respect of the relevant damage
-AND (2) a right to bring such an action.

(6)

In subsection (5) above "the knowledge required" for bringing an action for damages in respect of the relevant damage" means knowledge both (i.e. same things for 'date of knowledge' re PI/fatal accidents)---
(a)
of the material facts about the damage in respect of which damages are claimed;
-(7) "material facts" about the damage = such facts about the damage as would lead a reasonable person who had suffered such damage to consider 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.
(b)

AND of the other facts in (8):
(1)

(2)
(3)

that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence; and the identity of the defendant; and if it is alleged that the act or omission was that of a person other than the defendant, the identity of that

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