#19713 - 2. Bpc Civil Litigation 2023 2024 Limitation Periods - BPC Civil Litigation

Accrual

• In respect of torts which are actionable without proof of damage (‘actionable per se’), libel for example, the cause of action accrues on the date of the wrongful act.

• In the case of torts requiring proof of damage (except personal injury, fatal accidents and conversion) the cause of action accrues on the date on which the damage occurred. Exceptions may be made in cases involving latent damage.

Accrual (breach) - e.g when contract failed to be performed, i.e date of delivery

Time will start to run the next day (e.g accrual is on 19th, time starts on the 29th)

Accrual – either:

1. Date of judgment of arbitral award, or

2. If payments agreed, earliest date on which amount agreed between parties

Admitting full versus partial liability does not affect the limitation period.

General rule

1. Date of actual (injury) or

2. Knowledge (if later) of injured person

If injured person dies within period

1. Date of death

2. Date of the first personal representative's first knowledge of the death.

   1. Incl. an executor who has not proved the will (whether or not has renounced probate)

   2. Not special personal representative in relation to settle land

   3. Regard had to knowledge acquired both while personal representative and previously

1. Date of accident/injury, or

2. Date of knowledge if later

1. 6 - accrual (damage) or

2. 3 - earliest date when C or any person in whom cause of action vested before him first had both:

   1. Knowledge required to bring action for damages and

   2. Right to bring such an action

• If lesser defects are discovered and more serious ones are discovered later, the time runs from the knowledge of the lesser defects

• Test for knowledge: would the reasonable person in the claimant’s position reasonably be expected to have acquired the knowledge of the material facts to justify to embark upon preparations for litigation. Would the reasonable person think it was sufficiently serious to justify proceedings.

  • Full knowledge is not required.

  • The claimant must have sufficient knowledge to commence their further investigations

Latent damage (ss.14A and 14B):

• s.14A provides for two alternative periods, that is, six years from accrual, or, if expiring later, three years from the starting date.

• This is restricted to claims in negligence other than personal injury

  • 6 years from accrual

  • 3 years from starting date: this is the earliest date the claimant knew

    • That the relevant damage was sufficiently serious to justify proceedings, and

    • That the damage was attributable to the alleged negligence; and

    • The defendant’s identity

  • Under s.14B, both periods are subject to a long stop period of 15 years.

• The claimant must have no reasonable knowledge, however, the limitation period will apply in some circumstances as full knowledge of the extent of the damage is not required to stop the time from running.

Time does not run if the claimant is under a disability, and in cases of fraud, mistake and concealment.

Disability (ss.28 and 38(2)(3)):

• Under s.28, time does not run against a person under disability on the date the cause of action accrued.

• Time starts to run after a child turns 18.

• A child can have a litigation friend to commence proceedings before they turn 18.

• Adult who lacks capacity will always need a litigation friend. Time pauses.

• Disability will override a longstop period

Fraud, Concealment, Mistake (s.32)

• limitation does not run until the Claimant has discovered the fraud, concealment or mistake or could, with reasonable diligence, have discovered it.

• 30 year longstop when land and disabilities interact.

• Time expires on the anniversary of the breach

• Time will cease to run on the day that the Claimant issues proceedings

• Note, limitation is a defence - it can defeat a claim: if the claim is time-barred, the defendant should plead limitation in the defence and should consider applying to strike out the claim as an abuse of process.

• 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...