#4706 - Limitation - BPC Civil Litigation

LIMITATION Procedural Defence - must be set out by Defendant in Statement of Case (not Court of its own motion) * Apply to strike out as abuse of process Claimant still has a cause-of-action, but it cannot be enforced. * Except limitation-barred claims for adverse possession or conversion - expiry of limitation extinguishes Claimant's right. Limitation does not apply to claims for equitable remedies - though court may apply by analogy. 4 Questions: 1. What category of claim? - defines which limitation period applies 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: Categorizing the Claim Fraudulent Breach of Trust (unlimited) "Trustee" - including constructive and resulting trusts * eg. third party now in possession of trust property as a result of breach "Fraudulent breach" - dishonest * "Trustee" (Defendant) must be party/privy to the breach * If innocent - non-fraudulent breach of trust. Constructive Trustees: * Fraudulent - if Defendant was a trustee before the breach * Non-fraudulent - if Defendant became a trustee at/after the breach (trust is a construction of the court) Personal Injury (3 years) All claims where remedy includes damages for Personal Injury * including: damages for anxiety, stress, failure to treat a condition 2: Date of Accrual Date substantive elements of claim present * Claim for costs (debt) by solicitor against client - accrual: one month from bill (date payment due) Part-days ignored - time starts running day after Breach of Contract (6 years) Contract: breach - claims established without proof of loss * Elements: Offer, acceptance, consideration, breach etc. "Breach": * Claim for non-payment for goods: contractual date payment due * Claim for non-payment for work: completion of work * Claim for defective goods: date of delivery * Claim for defective work: substantial completion of work * Claim for late delivery: contractual date delivery due * Claim against surety/guarantor: date of default by debtor * Anticipatory repudiatory breach: date of acceptance (termination) Repeated breach - Claimant can claim for all breaches within 6 years before the claim brought Mistake (of fact or law) Accrual: date mistake could, with reasonable diligence, have been discovered Claim based on Fraud Date Claimant has actual/constructive knowledge of the fraud Negligence (Tort) (6 years) Tort: date damage sustained - damage is element of claim Claims against Solicitors * Negligent advice: Date advice acted upon * document executed, conveyance completed, contracts exchanged * on that date - damage: Claimant loses right to negotiate better agreement * Negligently allowing claim to be struck out: date Claimant has no arguable basis for avoiding SO * Negligent property valuation: date transaction entered * unless no loss at this point - date value of property less than amt of loan Conversion (tort: 6 years) Date goods first "converted" * Defendant deals with goods in a way inconsistent with the rights of the owner (Claimant) At end of 6 years from first conversion - Claimant's title is extinguished. Fatal Accidents Act Claims (3 years) Date of death Recovery of Land (12 years) Accrual: date from which there is "adverse possession" * occupation of land by someone, inconsistent with rights of owner * actual possession without lawful title Unless Claimant has future title - time runs from gaining title Expiry of 12 years - no longer "adverse possession" - Defendant gains legal title if: * Actual possession of land - apt degree of physical control, and * Intention to possess - intention to exclude world-at-large (including legal owner) If registered land - Defendant may apply for registration after 10 years possession * notification sent to registered owner and chargees * If no counter-notice - Defendant registered as legal owner free from all charges * If counter-notice - Claimant has 2 years to evict * fail to evict - Defendant may reapply for registration - automatically registered if still in possession. Consumer Protection Act Defective Products (3 years) Accrual: date of damage (damage to property or Personal Injury) Claim upon a Judgement (6 years) Accrual: date judgment became enforceable Enforcement of Judgment (no limit) Interest limited to 6 year-period after judgment Category of Claim LIMITATION TABLE Date of Accrual Limitation Period Judicial Review Date when grounds for application arose (eg. date of order, judgment, refusal of licence etc) 3 months Claims under HRA As above 1 year Defamation Date of wrongful act (actionable per se) 1 year Contribution under CL(Claimant)A When liability of Claimant is established: - Judgment on liability - Date of settlement (if requires consent order to take effect - date of order) 2 years