#10345 - Limitation - BPC Civil Litigation

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

3. TIME STOPS ON DATE ACTION BROUGHT

• = date C delivers all relevant documents to court to issue claim (even if court office closed)

  • exception - part 20 claims - time stops when claim issued

4. DISAPPLYING LIMITATION

JR

• court has discretion to extend where good reason for delay

DEFAMATION

• court has discretion to disallow where equitable, having regard to balance of prejudice

PI OR DEATH (s33 LA 1980)

Balance of prejudice

• wide discretion to override 3 year LP where equitable for claim to proceed having regard to the balance of prejudice between the parties

• court shall have regard to all the circumstances of the case AND particular factors

  • particular factors

1. the length of, and the reasons for, the delay on the part of C

1. delay = after expiry of primary LP (including extension for date of knowledge)

2. reasons = C's reasons (subjective test), then court decide if good or bad

2. extent to which evidence likely to be less cogent due to delay

3. conduct of D after cause of action arose (including any extent to which he responded to C's reasonable requests for information or inspection)

4. the duration of any (mental) disability of C arising after accrual

5. the extent to which C acted promptly and reasonably once he knew whether or not D's act which gave rise to the injury might be capable at that time of giving rise to an action for damages;

6. the steps, if any, taken by C to obtain medical, legal or other expert advice and the nature of any such advice he may have received

   • other factors

1. strength of claim

2. C has alternative claim against solicitors in negligence

1. less important if

   1. weak claim against solicitor

   2. C prejudiced by delay of instructing new solicitors

3. reluctance to sue current employer

4. deciding not to sue D when D broke

5. time between accident and D being informed of claim (less prejudice to D if informed sooner, as has time to investigate)

• procedure

  • apply to judge (<25k, can apply to coco DJ)

  • C must disclose all relevant details at application hearing, otherwise decision may be set aside

If C issues a second claim

• if C issued claim during LP BUT allowed claim form to expire, then C issues a second claim, NOT abuse of process

• court can disapply limitation period in second claim and take fact it is a second claim into...