#16077 - Limitation Allocation - BPC Civil Litigation

• Allocation of business between High Court & County Court:

  • High Court & County Court both have concurrent jurisdiction over all tort and contract claims.

  • 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 undersection 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 whichsections 28 [extension for disability], 32 [postponement of limitation period re fraud/concealment/mistake], 33A and 35 of this Actapply, but otherwiseParts II and III of this Act(exceptsections 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 undersection 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 theFatal Accidents Act 1976shall 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 insection 11 or 11A of this Act, no account shall be taken of the possibility of that time limit being overridden undersection 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 theFatal 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 theFatal Accidents Act 1976shall be one to whichsections 28 [fraud/concealment/mistake], 33 [discretionary exclusion of time limit for PI/death], 33A, 33B and 35 of this Actapply, and the application to any such action of the time limit under subsection (2) above shall be subject tosection 39; but otherwiseParts 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, insections 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) 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

(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;

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) Insection 11A of this Act and in section 12 of this Actso far as that section applies to an action by virtue ofsection 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 ofPart I of that Actin 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) from facts observable or ascertainable by him, or

(b) 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...