Nash v Eli Lilly and Co: CA 1993

The court considered whether a solicitor acting for a potential plaintiff was considered to be an expert for the purposes of the section.
Held: Purchas LJ said: ‘Of course as advice from a solicitor as to the legal consequences of the act or omission is not relevant his contribution can only consist of factual information. Moreover where constructive knowledge is under consideration through the channel of a solicitor this can only be relevant where it is established that the plaintiff ought reasonably to have consulted a solicitor at all. Thus it is for the defendant to establish not only that a solicitor whom the plaintiff might consult would have the necessary knowledge but also that it was reasonable to expect the plaintiff to consult him. This question was considered at some length in the judgment of Hidden J. and we can see no reason to depart from his general approach. .’ and ‘The standard of reasonableness in connection with the observations and/or the effort to ascertain are therefore finally objective but must be qualified to take into consideration the position, and circumstances and character of the plaintiff . . In considering whether or not the inquiry is, or is not reasonable, the situation, character and intelligence of the plaintiff must be relevant’.
Purchas LJ: ‘It was not . . the intention of Parliament to require for the purposes of section 11 and section 14 of the [1980] Act proof of knowledge of the terms in which it will be alleged that the act or omission of the defendants constituted negligence or breach of duty. What is required is knowledge of the essence of the act or omission to which the injury is attributable.’

Judges:

Purchas LJ

Citations:

[1993] 1 WLR 782, [1993] 4 All ER 383

Statutes:

Limitation Act 1980 13(4)(b)

Jurisdiction:

England and Wales

Citing:

Appeal from – Nash v Eli Lilly and Co QBD 1991
The court discussed the relevance of knowledge obtainable by the plaintiff’s solicitor for limitation purposes.
Held: Hidden J said ‘My conclusion is therefore that there is no binding authority on whether facts ascertainable by a plaintiff . .
Cited – Powell v National Coal Board CA 28-May-1986
Limitation operates as a defence, and therefore it is for he who sets it up to establish it, and prove that the claim was time barred. Once the initial limitation period had elapsed, it was for the plaintiff to assert that the date of knowledge . .

Cited by:

Cited – Henderson v Temple Pier Company Limited CA 23-Apr-1998
The plaintiff suffered injury walking a gangway onto a moored ship. Her solicitors failed to identify the owner of the ship, misspelling the name and failing to search in the General Register of Shipping and Seamen. The eventual claim was made . .
Cited – O’Driscoll v Dudley Health Authority CA 30-Apr-1998
The plaintiff sought damages for the negligence of the respondent in her care at birth. Years later the family concluded that her condition was a result of negligence. They waited until she was 21, when they mistakenly believed that she became an . .
Doubted – Forbes v Wandsworth Health Authority CA 21-Mar-1996
The plaintiff had a history of circulatory problems in his legs. He underwent surgery losing his leg. The question was when he should have sought advice as to why an attempted by-pass operation had resulted in one leg having to be amputated. He . .
Cited – Adams v Bracknell Forest Borough Council HL 17-Jun-2004
A attended the defendant’s schools between 1977 and 1988. He had always experienced difficulties with reading and writing and as an adult found those difficulties to be an impediment in his employment. He believed them to be the cause of the . .
Cited – Ali v Courtaulds Textiles Ltd CA 26-May-1999
A claimant was not fixed with knowledge of the source of his injury by being referred for medical opinion. He could not be expected to understand the source of this injury without expert assistance, and time did not run until such assistance was . .
Cited – Coban v Aynur Allen F Barnes and Son (a Firm) CA 8-Oct-1996
The defendant resisted the plaintiff’s claim for personal injuries as out of time. His explanation for not pursuing inquiries with his solicitor was that he was an over-stayer who feared deportation.
Held: Having good reason to make such . .
Cited – Haward and others v Fawcetts HL 1-Mar-2006
The claimant sought damages from his accountants, claiming negligence. The accountants pleaded limitation. They had advised him in connection with an investment in a company which investment went wrong.
Held: It was argued that the limitation . .
Cited – Buckler v J F Finnegan Ltd CA 21-Jun-2004
The claimant sought damages for personal injuries after ingesting asbestos while employed as a joiner by the defendant. The defendant appealed an order allowing the claim to go ahead despite being out of time. . .
Cited – Ministry of Defence v AB and Others SC 14-Mar-2012
The respondent Ministry had, in 1958, conducted experimental atmospheric explosions of atomic weapons. The claimants had been obliged as servicemen to observe the explosions, and appealed against dismissal of their claims for radiation sickness . .
Lists of cited by and citing cases may be incomplete.

Limitation, Negligence

Updated: 28 July 2022; Ref: scu.186432

Hampshire Constabulary v Southampton City Council: CA 1 Dec 2014

Citations:

[2014] EWCA Civ 1541

Links:

Bailii

Statutes:

Civil Liability (Contribution) Act 1978, Limitation Act 1980 10

Jurisdiction:

England and Wales

Limitation

Updated: 28 July 2022; Ref: scu.539387

HR and Others v JAPT and Others: ChD 19 Mar 1997

Defendant’s application for strike out

Judges:

Lindsay J

Citations:

[1997] OPLR 123, [1997] EWHC Ch 371

Links:

Bailii

Jurisdiction:

England and Wales

Limitation, Trusts

Updated: 28 July 2022; Ref: scu.347314

Pickthall and Another v Hill Dickinson Llp: CA 11 Jun 2009

The court was asked as to the extent to which it is an abuse of the process for a claimant to commence proceedings without having the relevant cause of action vested in him, and whether it would be right to allow him to amend his pleadings to plead a subsequent assignment of that cause of action when that assignment took place outside the relevant limitation period.
Held: The claim was an abuse of process.
Mann LJ said: ‘In my view the starting point is that where a man starts proceedings knowing that the cause of action is vested in someone else, then it is hard to see why those proceedings are not an abuse. He has started proceedings in which, even if he proves all the facts he wants to prove and establishes all the law he wants to establish, he will still lose because he does not have a right to sue. It is hard to see how that cannot be an abuse. Only people who own causes of action, or who have an appropriate interest in proceedings, have any business asserting the cause of action or starting proceedings. Any other use of the court’s proceedings is improper . . A permitted amendment would not so much cure the abuse of process as be a reward for it. It seems to me to be wrong in principle to confer such rewards on those who act in that way.’

Judges:

Laws, Thomas, Mann LJJ

Citations:

[2009] EWCA Civ 543, [2009] CP Rep 40, [2009] PNLR 31

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Pickthall v Hill Dickinson Llp and Another ChD 13-Oct-2008
The defendant sought to have struck out a claim where the claimant was bankrupt, and the debt was unassigned from the trustee in bankruptcy. . .
Cited – Nelson v Nelson CA 6-Dec-1996
A solicitor appealed against an order requiring him to contribute to the costs of Mareva injunction applied for on behalf of his bankrupt client.
Held: Solicitors were not liable in costs personally for starting proceedings on behalf of a . .

Cited by:

Cited – Thames Chambers Solicitors v Miah QBD 16-May-2013
The solicitors appealed against a wasted costs order. They had accepted instructions to act for a bankrupt in pursuing a debt before his discharge and without the debt having been assigned to him by the trustee in bankruptcy.
Held: The order . .
Lists of cited by and citing cases may be incomplete.

Limitation, Litigation Practice

Updated: 26 July 2022; Ref: scu.346825

Horner v Cartwright: CA 11 Jul 1989

Stuart Smith LJ discussed the status of pleadings in a limitation as an acknowledgement: ‘It is unnecessary for the purpose of this judgment to deal with Mr. Horner’s submission that a statement in an action once it is contained in a pleading enures from day to day as a sort of continuing or running acknowledgment. As at present advised, I do not accept that submission for one moment, but it is unnecessary to decide that for the purpose of this appeal.’

Judges:

Stuart Smith and Ralph Gibson LJJ

Citations:

Unreported, 11 July 1989

Jurisdiction:

England and Wales

Judges:

Eady J

Citations:

[2009] EWHC 956 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Limitation, Professional Negligence

Updated: 24 July 2022; Ref: scu.341883

Raggett v The Society Of Jesus Trust 1929 for Roman Catholic Purposes and Another: QBD 5 May 2009

Judges:

Swift DBE J

Citations:

[2009] EWHC 909 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Personal Injury, Limitation

Updated: 24 July 2022; Ref: scu.341882

[1927] 1 Ch 30

Jurisdiction:

England and Wales

Cited by:

Cited – Hill (As Trustee In Bankruptcy of Nurkowski) v Spread Trustee Company Ltd and Another CA 12-May-2006
The defendants sought relief for transactions entered into at an undervalue. The bankrupt had entered into charges and an assignment of a loan account in their favour before his bankruptcy, and the trustee had obtained an order for them to be set . .
Lists of cited by and citing cases may be incomplete.

Limitation

Updated: 21 July 2022; Ref: scu.244179

Sava v SS Global Ltd and others: CA 25 Nov 2008

Citations:

[2008] EWCA Civ 1308

Links:

Bailii

Jurisdiction:

England and Wales

Registered Land, Limitation

Updated: 19 July 2022; Ref: scu.278250

Updated: 17 July 2022; Ref: scu.270820

McHugh v Gray: QBD 27 Jul 2006

Judges:

Beatson J

Citations:

[2006] EWHC 1968 (QB)

Links:

Bailii

Statutes:

Limitation Act 1980 11

Jurisdiction:

England and Wales

Citing:

Cited – Coad v Cornwall and Isles of Scilly Health Authority CA 17-Jul-1996
A nurse suffered a back injury in 1983 in the course of her employment. She left the employment of the health authority in either 1990 or 1991. The judge had accepted her evidence that she did not know that she had a right of action against her . .
Lists of cited by and citing cases may be incomplete.

Limitation, Personal Injury

Updated: 17 July 2022; Ref: scu.244510

Roberts v Gill and Co and Another: CA 15 Jul 2008

The claimant sought damages in negligence against solicitors who had advised the executors in an estate of which he was a beneficiary. He now sought to amend his claim to make a claim in his personal and in derivative capacities. Sums had been paid out of the estate which had defeated the inheritance rights of the claimant. A new claim would now be out of time.
Held: The appeal was dismissed. There was no objection on the basis that the claimant in a derivative claim was publicly funded. The claimant had to be assumed to have known of the defect in his action and of the need to have acted earlier. The matter was in any event covered by CPR 19.5.
If Mark Roberts’ application to amend so as to plead a derivative claim were allowed, the administrator had to be joined as a party. Since the limitation period had expired, joinder of the administrator could only be permitted if the addition were ‘necessary’ (CPR 19.5(2)(b)) to enable the existing action to be pursued. The addition of the administrator was not necessary for the existing, personal, claim to be properly carried on, and permission to amend to plead the derivative claim only (without joining the administrator) was refused since that amendment would not enable the claimant to proceed to judgment on the derivative claim because the relevant parties had not been and could not be joined.

Judges:

Lord Justice Pill, Lady Justice Arden and Mr Justice Patten

Citations:

[2008] EWCA Civ 803, Times 18-Aug-2008, [2009] 1 WLR 531, [2008] WTLR 1429, [2009] PNLR 2, [2009] CP Rep 3

Links:

Bailii

Statutes:

Limitation Act 1980, Civil Procedure Rules 19.5

Jurisdiction:

England and Wales

Citing:

Appeal from – Roberts v Gill and Co and Another ChD 2007
. .
Cited – Lancaster v Evors 1841
A creditor of the deceased’s estate could enforce a cause of action vested in an estate which the executors were not willing to enforce. . .
Cited – Yeatman v Yeatman 1877
An action was brought by a residuary legatee against her mother-in-law’s executors and another member of the family, who it was alleged, had failed to account for partnership monies to the mother-in-law.
Held: A beneficiary of a trust could . .
Cited – Meldrum v Scorer 1887
The plaintiff, as a beneficiary under a will, sued the executors of the will and the trustees of a settlement made by him.
Held: The court directed that the other beneficiaries of the trust should be joined as defendants to avoid multiplicity . .
Cited – In re Field 1971
The plaintiff had an order for maintenance against the deceased’s estate. She brought proceedings in her own name against an insurance company which had wrongly paid a claim to the widow and not to the estate. The insurer sought a strike out. The . .
Cited – Performing Right Society Limited v London Theatre of Varieties Limited HL 1924
The parties, the plaintiff who was the equitable assignee of performing rights and the infringing defendant, joined specific issue on the absence of the legal owner of the rights.
Held: His absence was critical. PRS failed to obtain a . .
Cited – Vandepitte v Preferred Accident Insurance Corp. of New York PC 1933
The plaintiff was injured in a motor accident. He failed in a direct claim against the insurers of the negligent defendant driver. The insurance was effected by the father (Mr Berry) of the negligent driver and provided that an indemnity would be . .
Cited – Harmer v Armstrong CA 1934
The court considered the position where the assignor of a contract was required to attend court as a party when the assignee sought to enforce the debt.
Held: A beneficiary under a bare trust could bring proceedings in his own name and, where . .
Cited – Bradstock Trustee Services Ltd v Nabarro Nathanson ChD 1995
The plaintiffs were trustees of an occupational pension scheme. It began professional negligence proceedings to recover an expected surplus paid to the employer by the solicitors whose advice had been acted on. The anticipated costs were . .
Cited – Hayim v Citibank NA PC 1987
(Hong Kong) The plaintiffs were the testator’s sons, who were beneficiaries under his American will. He also executed a Hong Kong will under which the residue of his property outside the United States was to be held on trust for sale on the trusts . .
Cited – Giles v Rhind CA 17-Oct-2002
An action by a company under a shareholder’s agreement was compromised. The other shareholder now sought to commence an action against the party in breach for his personal losses. The defendant argued that the company’s compromise was binding also . .

Cited by:

Appeal from – Roberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Limitation, Civil Procedure Rules

Updated: 17 July 2022; Ref: scu.270705

Prescription and Limitation (Scotland) Act 1973 11(3)

Cited by:

Cited – David T Morrison and Co Ltd (T/A Gael Home Interiors) v ICL Plastics Ltd and Another SCS 14-Mar-2013
Extra Division – Inner House – An explosion at the defenders’ neighbouring premises had damaged those of the pursuer. The defenders now appealed against a finding that the claim was out of time calculated from the time when it had sufficient . .
Cited – David T Morrison and Co Ltd (T/A Gael Home Interiors) v ICL Plastics Ltd and Others SC 30-Jul-2014
The claimant sought damages after an explosion at the defender’s nearby premises damaged its shop. The defender said that the claim was out of time, and now appealed against a decision that time had not begun to run under the 1973 Act.
Held: . .
Lists of cited by and citing cases may be incomplete.

Scotland, Limitation

Updated: 17 July 2022; Ref: scu.270221

England and Wales

Cited by:

Cited – Lu v Solicitors Regulation Authority Admn 6-Jul-2022
No Unmnecessary Anoniymity
The appellant, having been acquitted of misconduct, complained of the anonymisation of various partied by the SDT.
Held: The court was critical of the approach taken by the Tribunal. ‘I see no good reason why Ms Pearson, Ms Stone, Mr Ewing and . .
Lists of cited by and citing cases may be incomplete.

Limitation, Contract

Updated: 14 July 2022; Ref: scu.634308

Bradford and Bingley Plc v Cutler: CA 18 Jan 2008

The borrower fell into arrears when he lost his job. Benefits payments were made toward the debt under the 1992 Act. Those stopped, and the house was repossessed. The property was sold, and the claimant eventually sought to recover the shortfall. They relied on the last benefits payment as acknowledgement of the debt, saying it was paid as agent for the borrower. The borrower said that their was no relationship of agency.
Held: The Benefits Agency payments went to reduce the borrower’s liability and were for his benefit. They were made as his agent and constituted an acknowledgment of the debt.

Citations:

[2008] EWCA Civ 74

Links:

Bailii

Statutes:

Social Security (Mortgage Interest Payments) Act 1992, Limitation Act 1980 29(5)

Jurisdiction:

England and Wales

Land, Limitation

Updated: 13 July 2022; Ref: scu.264658

Ofulue and Another v Bossert: CA 29 Jan 2008

The claimants appealed an order finding that the defendant had acquired their land by adverse possession. They said that the defendant had asserted in defence to possession proceedings that they were tenants, and that this contradicted an intent to deny the claimants’ title.
Held: The appeal failed. A finding by the ECHR that a particular area falls within the contracting states’ margin of appreciation is therefore a signal to the national judge that the decision of the national authorities as to the content of rights within that area should receive appropriate respect. The court was to apply Pye -v- United Kingdom. The margin of appreciation given to a national court was not something to be retested on each adverse possession case. A person believing himself to be a tenant may still be in adverse possession, even if his belief that he is a tenant is incorrect. The statement in the pleadings did not amount to an acknowledgement.

Judges:

Arden LJ, May LJ, Sir Martin Nourse

Citations:

[2008] EWCA Civ 7, [2008] HRLR 20, [2008] 3 WLR 1253, [2008] UKHRR 447, [2009] Ch 1, [2008] NPC 8

Links:

Bailii

Statutes:

Limitation Act 1980 29, Land Registration Act 1925 75(1), Human Rights Act 1998 2

Jurisdiction:

England and Wales

Citing:

Cited – J A Pye (Oxford) Ltd and Others v Graham and Another HL 4-Jul-2002
The claimants sought ownership by adverse possession of land. Once the paper owner had been found, they indicated a readiness to purchase their interest. The court had found that this letter contradicted an animus possidendi. The claimant had . .
Applied – J A Pye (Oxford) Ltd v The United Kingdom ECHR 30-Aug-2007
UK Advers Possession Law – Not Compliant
The claimant had said that the UK law which allowed it to lose land by virtue of twelve year’s occupation by a squatter, interfered with its right to ownership of property.
Held: The UK law on adverse possession did comply with the Convention. . .
Cited – J A Pye (Oxford) Ltd v The United Kingdom ECHR 15-Nov-2005
The claimants had been the registered proprietors of land, they lost it through the adverse possession of former tenants holding over. They claimed that the law had dispossessed them of their lawful rights.
Held: The cumulative effect of the . .
Cited – Belfast City Council v Miss Behavin’ Ltd HL 25-Apr-2007
Belfast had failed to license sex shops. The company sought review of the decision not to grant a licence.
Held: The council’s appeal succeeded. The refusal was not a denial of the company’s human rights: ‘If article 10 and article 1 of . .
Cited – Regina v Director of Public Prosecutions, ex parte Kebilene and others HL 28-Oct-1999
(Orse Kebeline) The DPP’s appeal succeeded. A decision by the DPP to authorise a prosecution could not be judicially reviewed unless dishonesty, bad faith, or some other exceptional circumstance could be shown. A suggestion that the offence for . .
Cited – Miailhe v France (No 2) ECHR 26-Sep-1996
Hudoc Preliminary objection joined to merits (victim); Preliminary objection rejected (victim); Preliminary objection rejected (non-exhaustion); Preliminary objection rejected (ratione materiae); No violation of . .
No longer correct – Beaulane Properties Ltd v Palmer ChD 23-Mar-2005
The paper owner sought possession of land. The defendant said he had acquired a possessory title. The land was registered.
Held: The claimant’s human rights under article 1 were engaged. To be justifiable, the interference in that right had to . .
Cited – Powell v McFarlane ChD 1977
Intention to Establish Adverse Possession of Land
A squatter had occupied the land and defended a claim for possession. The court discussed the conditions necessary to establish an intention to possess land adversely to the paper owner.
Held: Slade J said: ‘It will be convenient to begin by . .
Cited – Buckinghamshire County Council v Moran CA 13-Feb-1989
The parties’ respective properties were separated by a fence or hedge and the true owner had no access to the disputed land. In 1967 the Defendants’ predecessors in title began to maintain the land by mowing the grass and trimming the hedges and . .
Cited – Lodge (T/A JD Lodge) v Wakefield Metropolitan Council CA 21-Mar-1995
The plaintiff had formerly been a tenant of the defendant under an informal tenancy. No rent had been paid since 1974. He claimed to have acquired the land by adverse possession. He gave evidence at trial that if he had been asked to pay rent at any . .
Cited – Re Flynn (no 2) 1969
An acknowledgement of title to restart a limitation period must be precisely focused on a disputed right. . .
Cited – Surrendra Overseas Ltd v Government of Sri Lanka 1977
A debtor can only be held to have acknowledged the claim if he has in effect admitted his legal liability to pay that which the plaintiff seeks to recover. An acknowledgement of part only of a debt cannot operate to acknowledge more.
Kerr J . .
Cited – Markfield Investments Ltd v Evans CA 9-Nov-2000
The claimants were paper owners of land occupied by the defendant. The claimant said the acquiescence had been interrupted by an abortive court action by the claimant’s predecessor in title.
Held: With regard to any particular action the . .
Cited – BP Properties Ltd v Buckler CA 31-Jul-1987
The putative owner of the paper title wrote to the defendant who occupied the relevant property in October 1974 as follows: ‘Since we wish to help you as much as possible we are prepared to allow you to remain in occupation of the house and garden . .
Cited – Horner v Cartwright CA 11-Jul-1989
Stuart Smith LJ discussed the status of pleadings in a limitation as an acknowledgement: ‘It is unnecessary for the purpose of this judgment to deal with Mr. Horner’s submission that a statement in an action once it is contained in a pleading enures . .
Cited – Rush and Tomkins Ltd v Greater London Council HL 3-Nov-1988
The parties had entered into contracts for the construction of dwellings. The contractors sought payment. The council alleged shortcomings in the works. The principal parties had settled the dispute, but a sub-contractor now sought disclosure of the . .
Cited – Re Gee and Co (Woolwich) Ltd 1975
Company accounts can acknowledge the company’s liability for debts as at the date at which the accounts are drawn up even if they are not finalised and signed until after that date. . .
Cited – Handyside v The United Kingdom ECHR 7-Dec-1976
Freedom of Expression is Fundamental to Society
The appellant had published a ‘Little Red Schoolbook’. He was convicted under the 1959 and 1964 Acts on the basis that the book was obscene, it tending to deprave and corrupt its target audience, children. The book claimed that it was intended to . .

Cited by:

Appeal from – Ofulue and Another v Bossert HL 11-Mar-2009
The parties disputed ownership of land, one claiming adverse possession. In the course of negotations, the possessor made a without prejudice offer to purchase the paper owner’s title. The paper owner claimed that this was an acknowledgement under . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation, Human Rights

Updated: 13 July 2022; Ref: scu.264011

Twentieth Century Banking Corporation Ltd v Wilkinson: ChD 1977

Property was charged in 1973. The principal was be repayable in 1988 with interest. There was no provision by which a default made the power of sale exercisable or the advance repayable. When the borrower defaulted, the mortgagee had to apply to court for an order for sale in lieu of foreclosure under section 91(2) of the 1925 Act.
Held: The order was made. As to the proceeds: ‘The plaintiffs will of course be entitled, having paid the expenses of the sale, to discharge all arrears of interest down to date; that will leave a principal sum outstanding, the principal sum of andpound;19,000. There will remain in the hands of the plaintiffs, after discharging arrears of interest, and if the sale produces only the andpound;18,000 expected, a sum of, say, andpound;15,000. Now, in my mind, as the plaintiffs will have that sum of andpound;15,000 in hand they will be unable to say in future as regards that andpound;15,000 ‘Payment is not yet due, therefore we can invest it. Interest at the high rate secured by the mortgage will continue to accrue, and we will give credit for the interest produced by investing the money at a rate inevitably less than the mortgage rate.’ It seems to me that either as a necessary consequence, or as a matter of a condition which I can impose, the plaintiffs must treat any money which is in hand after payment of expenses and interest down to date as being in satisfaction pro tanto of the principal secured by the mortgage, and of all future interest on the principal so satisfied. That seems to me to be fair to both parties and to produce an equitable result.’

Judges:

Templeman J

Citations:

[1977] Ch 99

Statutes:

Law of Property Act 1925 91(2)

Jurisdiction:

England and Wales

Cited by:

Cited – West Bromwich Building Society v Wilkinson HL 30-Jun-2005
The Society had taken possession of a property in 1989. It located the defendants many years later and sought payment of the excess after deduction of the proceeds of sale, and for interest. The borrowers claimed the debt was expired by limitation . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 13 July 2022; Ref: scu.228176

Hicks Developments Ltd v Chaplin and others: ChD 5 Feb 2007

The defendants had succeeded in an application before the Land Registry adjudicator for a strip of land adjoining their property to be registered in their name after a finding that they had successfully established a claim by adverse possession. The claimants had developed the adjoining land leaving the strip unbuilt upon. A fence had been erected by agreement in 1986.
Held: The developer’s appeal failed. Whilst the adjudicator’s reasons were not as full as they might have been, they were sufficient and he had had a proper basis in the evidence to support his conclusion. Since the 12 year period had expired before the Human Rights Act came into effect, the occupation was not subject to a human rights challenge.

Judges:

Briggs J

Citations:

[2007] EWHC 141 (Ch)

Links:

Bailii

Statutes:

Civil Procedure Rules 52.11(3)

Jurisdiction:

England and Wales

Citing:

Cited – Flannery and Another v Halifax Estate Agencies Ltd, Trading As Colleys Professional Services CA 18-Feb-1999
A judge at first instance taking a view on an expert’s report should give reasons in his judgment for that view. On appeal, where no reasons had been given, he should be asked to provide reasons by affidavit for the appeal. An inadequately reasoned . .
Cited – Batsford Estates (1983) Company Ltd v Taylor and Another CA 29-Apr-2005
The company owner eventually made a positive decision not to take any possession proceedings against the occupiers following service of a notice to quit. The occupiers then remained in possession for more than 12 years.
Held: After serving a . .
Cited – London Borough of Lambeth v Rumbelow ChD 25-Jan-2001
The court considered what would constitute permission to occupy land so as to destroy a claim for adverse possession. Etherton J said: ‘In order to establish permission in the circumstances of any case two matters must be established. Firstly, there . .
Cited – Rowley and Another v Secretary of State for Transport Local Government and the Regions Admn 24-May-2002
The inspector after holding an inquiry had confirmed the decision of the county council to make an order modifying the definitive map by the inclusion of a footpath over the objectors’ land.
Held: The decision by the Secretary of State . .
Cited – English v Emery Reimbold and Strick Ltd; etc, (Practice Note) CA 30-Apr-2002
Judge’s Reasons Must Show How Reached
In each case appeals were made, following Flannery, complaining of a lack of reasons given by the judge for his decision.
Held: Human Rights jurisprudence required judges to put parties into a position where they could understand how the . .
Lists of cited by and citing cases may be incomplete.

Registered Land, Limitation

Updated: 13 July 2022; Ref: scu.248359

London Borough of Lambeth v Rumbelow: ChD 25 Jan 2001

The court considered what would constitute permission to occupy land so as to destroy a claim for adverse possession. Etherton J said: ‘In order to establish permission in the circumstances of any case two matters must be established. Firstly, there must have been some overt act by the land owner or some demonstrable circumstances from which the inference can be drawn that permission was in fact given. It is, however, irrelevant whether the users were aware of those matters . . Secondly [it must be established that] a reasonable person would have appreciated that the user was with the permission of the land owner.’

Judges:

Etherton J

Citations:

Unreported 25 Jan 2001

Jurisdiction:

England and Wales

Cited by:

Cited – Hicks Developments Ltd v Chaplin and others ChD 5-Feb-2007
The defendants had succeeded in an application before the Land Registry adjudicator for a strip of land adjoining their property to be registered in their name after a finding that they had successfully established a claim by adverse possession. The . .
Cited – Totton and Eling Town Council v Caunter and Another ChD 11-Jun-2008
The council appealed against an award by the adjudicator of title by adverse possession in favour of the respondents.
Held: The appeal succeeded. On any sensible analysis from the Council’s perspective, the Caunters were entitled to remain in . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 13 July 2022; Ref: scu.248381

Long v Tower Hamlets London Borough Council: ChD 20 Mar 1996

The parties had agreed for a lease, and the tenant entered possession, but no formal lease was executed. The tenant stopped paying rent in 1977 or 1984. He now claimed rectification of the registers to show him as proprietor. The landlord argued that as a lease in writing, time ran from the notice to quit. The tenant denied that it was lease in writing since no estate was disposed.
Held: A written document does not have to be a deed in order to be a ‘writing’. The document was therefore in writing, though not a deed. However: ‘a written document, whatever its terms, however clearly referable to the existence of a lease, and however comprehensive it may be in setting out the terms of the lease, is not a ‘lease in writing’ for the purposes of para 5(1) of Schedule 1 to the Limitation Act 1980 unless at law the document itself operates to ‘pass an interest’.’ The court considered the tenant’s argument that as a reversionary lease it had to be created by deed. The earlier statute prohibited a lease where the total length of the term and te period before it commenced exceeded three years being created by parol. It did not prevent shorter lease being so created. In 1925 the position changed since the 1925 Act referred to interests taking effect in possession: ‘the effect of the Law of Property Act 1925 was to make equally unenforceable both an oral executory agreement to grant a lease (section 40) and an oral attempt to grant a lease taking effect in possession in the future (section 54(2)), and, accordingly, to put an end to the need to distinguish between those oral transactions for a future tenancy which, as a matter of construction, took effect as mere agreements, and were thus unenforceable by virtue of section 4 of the Statute of Frauds, and those oral transactions which, as a matter of construction, took effect as leases, and thus fell within the exception in section 2 of the Statute of Frauds.’

Judges:

Munby QC J

Citations:

[1996] EWHC Ch 1, [1996] 2 All ER 683, [1996] 3 WLR 317, [1997] 1 EGLR 78, [1998] Ch 197

Links:

Bailii

Statutes:

Limitation Act 1980 15(1), Law of Property Act 1925

Jurisdiction:

England and Wales

Citing:

Cited – Buckinghamshire County Council v Moran CA 13-Feb-1989
The parties’ respective properties were separated by a fence or hedge and the true owner had no access to the disputed land. In 1967 the Defendants’ predecessors in title began to maintain the land by mowing the grass and trimming the hedges and . .
Cited – Smirk v Lyndale Developments Ltd ChD 1975
The court considered the doctrine that a tenant acquiring title to land by adverse possession, did so on behalf of hs landlord.
Held: The cases demonstrated that ‘the law . . has got into something of a tangle’, but the doctrine, at least as . .
Cited – Rawlins v Turner 1699
To be effective a lease by parole for three years must be for three years computed from the time of the agreement, and not from some a future date. ‘No lease by parol is good which imports to convey an interest for more than three years from the . .
Still good law – Ryley v Hicks 1725
A lease by parol for less than three years from the making of it and stated to take effect at a future day are not within the Statute of Frauds: ‘In Middlesex, coram Raymond, Chief Justice.
Leases by parol for less than three years from the . .
Cited – Inman v Stamp 1815
. .
Cited – Moses v Lovegrove CA 29-Apr-1952
The tenant had gone into possession under an oral agreement with a rent book. He ceased to pay rent or acknowledge the landlord’s right in 1938. In 1952 the landlord sought to recover possession, and now appealed a finding that the tenant had . .
Cited – Kushner v Law Society 1952
. .
Cited – Edge v Strafford CExc 1831
The case of Ryley v Hicks was not overruled by Inman v Stamp. Rylet stood as good authority that ‘a lease, though it were to commence in futuro, would be within the exception in the statute of frauds, if it did not exceed three years from the . .
Cited – Rollason v Leon 1861
The tenancy document, properly construed, purported to take effect as a tenancy and not as a mere agreement to grant a tenancy. . .
Cited – Wright v Macadam KBD 1949
The court considered the exceptions to the rule that a right in fact enjoyed with property will pass on a conveyance of the property by virtue of the grant to be read into the conveyance by virtue of section 62. One exception was if the right was . .
Cited – Lord Bolton v Tomlin 1836
. .
Cited – Foster v Reeves CA 1892
An agreement was made on May 12 1890 for a tenancy for three years to commence on June 24 1890 and thereafter from year to year until determined. The landlord sued to recover rent after the tenant had given up possession. The tenant argued that no . .
Cited – Walsh v Lonsdale CA 1882
Lonsdale purported to grant to Walsh a seven year lease with rent payable in advance. The lease was not embodied in a deed, and when Walsh went into possession, an annual tenancy with rent payable in arrear was created. Walsh did not pay in advance, . .
Cited – Hand v Hall CA 1877
An agreement was made on January 26 1876 for a tenancy until Midsummer 12 months from February 14 1876.
Held: The agreement operated as a devise within the exception in section 2 of the Statute of Frauds. . .
Cited – Parker v Briggs CA 1893
‘the appellants contend . . that a parol lease to commence at a future date was in point of law and in fact an agreement for a lease, and as such must be in writing under section 4 of the Statute of Frauds, even though the lease agreed to be granted . .
Cited – Foster v Reeves CA 1892
An agreement was made on May 12 1890 for a tenancy for three years to commence on June 24 1890 and thereafter from year to year until determined. The landlord sued to recover rent after the tenant had given up possession. The tenant argued that no . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Limitation

Updated: 12 July 2022; Ref: scu.263761

Kruber v Grzesiak: 1963

The plaintiff had issued a writ claiming damages for personal injuries caused by negligent driving more than three years after the accident, and now wanted to amend the writ by adding a claim for trespass to the person based on the same facts. The court asked whether the applicable limitation Act covered an allegation of unintentional trespass to the person.
Held: Adams J said: ‘I would see no sufficient reason for excluding an action for trespass to the person] from the description of an action for damages for breach of duty, especially when it is provided that the duty may be one existing independently of any contract or any provision made by or under a statute. After all, do not all torts arise from breach of duty – the tort of trespass to the person arising from the breach of a general duty not to inflict direct and immediate injury to the person of another either intentionally or negligently in the absence of lawful excuse? The substance of the matter appears to be that section 5(6) is intended to provide a special limitation period of three years for actions in which damages for personal injuries are claimed. No doubt, as was pointed out in argument, this intention might have been achieved by the use of other and perhaps simpler and more direct language, but that does not seem to be a sufficient reason for not giving to the language chosen its full meaning.’

Judges:

Adams J

Citations:

[1963] VR 621

Jurisdiction:

Australia

Cited by:

Adopted – Letang v Cooper CA 15-Jun-1964
The plaintiff, injured in an accident, pleaded trespass to the person, which was not a breach of duty within the proviso to the section, in order to achieve the advantages of a six-year limitation period.
Held: Trespass is strictly speaking . .
Cited – A v Hoare HL 30-Jan-2008
Each of six claimants sought to pursue claims for damages for sexual assaults which would otherwise be time barred under the 1980 Act after six years. They sought to have the House depart from Stubbings and allow a discretion to the court to extend . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Limitation, Torts – Other

Updated: 12 July 2022; Ref: scu.266153

Kamar v Nightingale and Another: QBD 14 Dec 2007

The claimant sought damages from his barrister saying that he should have introduced evidence of his good character during the trial. The defendant appealed against the order permitting extension of the limitation period.
Held: The court had not allowed the defendant the difficulty he would face in establishing the condition of the claimants mental health at the trial to defend te claim for damages. Nor would it be possible to reconstruct after such a long period the details of the trial so as to assess what would have happened if the defendant had done as it was suggested he should have. The defendant had been prejudiced by the delay which was long and largely unexplained.

Judges:

Eady J

Citations:

[2007] EWHC 2982 (QB)

Links:

Bailii

Citing:

Cited – Donovan v Gwentoys Ltd HL 1990
The plaintiff, then a 16 year old girl slipped and fell whilst employed at the defendant’s factory. The limitation period expired on her 21st birthday. She commenced proceedings five and a half months after that date. The judge extended time under . .
Cited – Steedman, Clohosy, Smith, Kiernan, Newman, Creevy, Anderson v The British Broadcasting Corporation CA 23-Oct-2001
The claimants had issued defamation proceedings. The defendant said they were out of time, having begun the action more than one year after the alleged publication, but accepted that they had not been prejudiced in their defence. The court refused . .
Cited – Hartley v Birmingham City District Council CA 1992
The writ was issued one day late; there had been early notification of the claim; and the defendant’s ability to defend the case was unaffected. The plaintiff asked the court to exercide its discretion to allow the claim t proceed.
Held: The . .
Cited – Spargo v North Essex District Health Authority CA 13-Mar-1997
The test of ‘When a plaintiff became aware of the cause of an injury’ is a subjective test of what passed through plaintiff’s mind. ‘(1) the knowledge required to satisfy s14(1)(b) is a broad knowledge of the essence of the causally relevant act or . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Limitation

Updated: 12 July 2022; Ref: scu.263259

O’Byrne v Aventis Pasteur Sa: CA 9 Oct 2007

The claimant had made a mistake in naming the defendant company, but had intended the company which it now requested the court to substitute as defendant. The limitation period had expired.
Held: The substitution was necessary to decide the issue raised by the action. The defendant’s appeal failed.

Citations:

[2007] EWCA Civ 966, Times 19-Nov-2007, [2008] CP Rep 2, [2008] Eu LR 227, [2008] Bus LR 99, [2008] PIQR P3, (2007) 98 BMLR 160

Links:

Bailii

Statutes:

Limitation Act 1980 35

Jurisdiction:

England and Wales

Citing:

At ECJ – Declan O’Byrne v Sanofi Pasteur MSD Ltd, formerly Aventis Pasteur MSD Ltd, Sanofi Pasteur SA ECJ 9-Feb-2006
ECJ Directive 85/374/EEC – Liability for defective products – Definition of -putting into circulation- of the product – Supply by the producer to a wholly owned subsidiary. . .
See also – O’Byrne v Aventis Pasteur Sa CA 9-Oct-2007
Whether two applications for leave to appeal between the same parties should be heard together. . .
Appeal from – O’Byrne v Aventis Pasteur MSD Ltd QBD 20-Oct-2006
The claimant sought damages under the 1967 Act asserting injury from a drug sold by the defendant. Proceedings had been mistakenly commenced against Aventis Pasteur MSD Ltd within the limitation period, but outside the limitation period, it was . .
See Also – OB v Aventis Pasteur SA HL 11-Jun-2008
The claimant had been vaccinated with a HIB vaccine. He was severely injured and it was said that the vaccine was the cause, and a claim made under the 1987 Act. Originally the claim was made against a UK company, but it should have been against . .

Cited by:

See Also – O’Byrne v Aventis Pasteur Sa CA 9-Oct-2007
Whether two applications for leave to appeal between the same parties should be heard together. . .
At CA – OB v Aventis Pasteur SA HL 11-Jun-2008
The claimant had been vaccinated with a HIB vaccine. He was severely injured and it was said that the vaccine was the cause, and a claim made under the 1987 Act. Originally the claim was made against a UK company, but it should have been against . .
At CA – Aventis Pasteur v O’Byrne (Environment And Consumers) ECJ 2-Dec-2009
Europa Directive 85/374/EEC – Liability for defective products Articles 3 and 11 Mistake in the classification of ‘producer’ Judicial proceedings – Application for substitution of the producer for the original . .
At CA (1) – O’Byrne v Aventis Pasteur Sa SC 26-May-2010
The claimant wished to claim damages after suffering serious injury as a child having been vaccinated with a drug manufactured by a defendant (APMSD). The defendant had relied on a defence saying that the limitation period under the Directive was 10 . .
Lists of cited by and citing cases may be incomplete.

Limitation, Litigation Practice

Updated: 12 July 2022; Ref: scu.259877

Donovan v Gwentoys Ltd: HL 1990

The plaintiff, then a 16 year old girl slipped and fell whilst employed at the defendant’s factory. The limitation period expired on her 21st birthday. She commenced proceedings five and a half months after that date. The judge extended time under LA section 33, holding that he could only consider prejudice suffered by the defendant in the last five and a half month period. The Court of Appeal upheld that decision. The defendant appealed.
Held: The appeal succeeded. The defendant had been prejudiced by delay in ‘a truly stale claim first made on them five years after the event.’ Prejudice which occurred before the expiry of the limitation period was a relevant matter for the court to consider in deciding whether to override any limitation period.
The House noted that the opening words of section 33 (3) required the court to ‘have regard to all the circumstances of the case.’ That provision enabled the court to take into account prejudice caused to the defendant by the plaintiff’s delay over the entire period since her accident.
Lord Griffiths said: ‘In the course of his speech, Lord Diplock considered the meaning of delay in what was then, section 2D(3)(a)(b) of the Limitation Act 1939, as inserted by the Act of 1975 and which is now s.33(3)(a)(b) of the Limitation Act 1980. He said [1981] 1 WLR 744, 751:
‘Subsection (3) requires the court to have regard to ‘all the circumstances of the case’ but singles out six matters for particular mention. These six present a curious hotchpotch. ‘The delay’ referred to in paragraph (a) must be the same delay as in paragraph (b); so it means the delay after the primary limitation period expired. It is the length of this delay (in the instant case 37 days) and the reasons for it that matter under paragraph (a).’
There was some debate before your Lordships, for which I was primarily responsible, as to whether delay in subsection (3)(a) was referring to delay from the accrual of the cause of action rather than delay after the expiry of the primary limitation period. There can, however, be no doubt that the delay referred to in subsection (3)(b) is delay subsequent to the expiry of the primary limitation period and I am persuaded that Lord Diplock’s construction is correct and it is to this same period of delay that the court is to have regard under paragraph (a) and also in subsection (4).
It does not, however, follow that, in weighing the prejudice to the defendant, the court is not entitled to take into account the date upon which the claim is first made against the defendant. Compare the facts in Thompson v Brown with the facts of this case. In Thompson v Brown the claim had been made within a few weeks of the accident and liability and damage had been fully considered by the defendants’ insurers at an early stage. At the time the limitation period expired, the defendants’ insurers were in a position to settle the claim on its true merit. The fact that the plaintiff’s solicitors slipped up so that the writ was issued 37 days late was a totally unexpected windfall benefit for the defendants’ insurers. The primary purpose of the limitation period is to protect a defendant from the injustice of having to face a stale claim, that is, a claim with which he never expected to have to deal.’
Lord Oliver said: ‘The argument in favour of the proposition that dilatoriness on the part of the plaintiff in issuing his writ is irrelevant until the period of limitation has expired rests upon the proposition that, since a defendant has no legal ground for complaint if the plaintiff issues his writ one day before the expiry of the period, it follows that he suffers no prejudice if the writ is not issued until two days later, save to the extent that, if the section is disapplied, he is deprived of his vested right to defeat the plaintiff’s claim on that ground alone. In my opinion, this is a false point. A defendant is always likely to be prejudiced by the dilatoriness of a plaintiff in pursuing his claim. Witnesses’ memories may fade, records may be lost or destroyed, opportunities for inspection and report may be lost. The fact that the law permits a plaintiff within the prescribed limits to disadvantage a defendant in this way does not mean that the defendant is not prejudiced. It merely means that he is not in a position to complain of whatever prejudice he suffers. Once a plaintiff allows the permitted time to elapse, the defendant is no longer subject to that disability, and in a situation in which the court is directed to consider all the circumstances of the case and to balance the prejudice to the parties, the fact that the claim has, as a result of the plaintiff’s failure to use the time allowed to him, become a thoroughly stale claim, cannot, in my judgment, be irrelevant. It is clear from the judge’s judgment that, because sub-paragraphs (a) and (b) of section 33(3) of the Act of 1980 focus particular attention on the time elapsing after expiry of the limitation period, he felt constrained to regard the time which had to been allowed to pass prior to that date as something which had to be left wholly out of account. In my judgment, he was wrong to do so and that necessarily vitiated the exercise of his discretion.’
and ‘The argument in favour of the proposition that dilatoriness on the part of the plaintiff in issuing his writ is irrelevant until the period of limitation has expired rests upon the proposition that, since a defendant has no legal ground for complaint if the plaintiff issues his writ one day before the expiry of the period, it follows that he suffers no prejudice if the writ is not issued until two days later, save to the extent that, if the section is disapplied, he is deprived of his vested right to defeat the plaintiff’s claim on that ground alone. In my opinion, this is a false point. A defendant is always likely to be prejudiced by the dilatoriness of a plaintiff in pursuing his claim. Witnesses’ memories may fade, records may be lost or destroyed, opportunities for inspection and reports may be lost. The fact that the law permits a plaintiff within prescribed limits to disadvantage a defendant in this way does not mean that the defendant is not prejudiced. It merely means that he is not in a position to complain of whatever prejudice he suffers. Once a plaintiff allows the permitted time to elapse, the defendant is no longer subject to that disability, and in a situation in which the court is directed to consider all the circumstances of the case and to balance the prejudice to the parties, the fact that the claim has, as a result of the plaintiff’s failure to use the time allowed to him, become a thoroughly stale claim, cannot, in my judgment, be irrelevant.’

Judges:

Lord Griffiths, Lord Oliver, Lord Bridge, Lord Templeman and Lord Lowry

Citations:

[1990] 1 WLR 472, [1990] 1 All ER 1018

Statutes:

Limitation Act 1980 3393)

Jurisdiction:

England and Wales

Cited by:

Cited – Roberts vWinbow (3) CA 4-Dec-1998
The plaintiff was treated for depression by the defendant by prescription of drugs. She sufferred a reaction, but now claimed that the doctor’s slow reaction caused her to suffer lasting injury. The question on appeal was, if a plaintiff suffers . .
Cited – Jacqueline Adam v Rasal Ali CA 21-Feb-2006
The defendant sought damages against the defendant for personal injury from his alleged negligence. Her action was struck out and she recommenced the action. The defendant pleaded that she was out of time. The claimant said that the first action . .
Cited – Horton v Sadler and Another HL 14-Jun-2006
The claimant had been injured in a road traffic accident for which the defendant was responsible in negligence. The defendant was not insured, and so a claim was to be made against the MIB. The plaintiff issued proceedings just before the expiry of . .
Cited – Kamar v Nightingale and Another QBD 14-Dec-2007
The claimant sought damages from his barrister saying that he should have introduced evidence of his good character during the trial. The defendant appealed against the order permitting extension of the limitation period.
Held: The court had . .
Cited – McDonnell and Another v Walker CA 24-Nov-2009
The defendant appealed against the disapplication of section 11 of the 1980 Act under section 33.
Held: The appeal succeeded. The defendant had not contributed significantly to the delay: ‘the defendant received claims quite different in . .
Cited – Kaneria v Kaneria and Others ChD 15-Apr-2014
The parties were embroiled in a company dispute with allegations of conduct prejudicial to minority shareholders. An application was now made for sanctions for a failure to comply with court directions.
Held: Unless and until a higher Court . .
Lists of cited by and citing cases may be incomplete.

Limitation, Litigation Practice

Updated: 11 July 2022; Ref: scu.186438

Adelson and Another v Associated Newspapers Ltd: CA 9 Jul 2007

The claimant sought to add the name of a further claimant. The defendant objected, saying that it was after the expiry of the limitation period.
Held: The claimant was seeking to use the rules for substitution of parties to add a party. In defamation law, the claim of each claimant was a single and separate cause of action. Substitution should only be used where a party was under a misapprehension as to the material facts. Whilst it might not be impossible to make such an order in a case like this case, the nature of the error did not allow the exercise of the discretion.

Judges:

Lord Phillips CJ, Jacob LJ, Moses LJ

Citations:

[2007] EWCA Civ 701, Times 18-Jul-2007, [2007] 4 All ER 330

Links:

Bailii

Statutes:

Limitation Act 1980

Jurisdiction:

England and Wales

Citing:

Cited – Morgan Est (Scotland) Ltd v Hanson Concrete Products Ltd CA 17-Feb-2005
The defendant appealed an order adding two new claimants.
Held: Cases decided under the old RSC were not apposite for matters covered by the new Civil Procedure Rules. The court was not bound by the Sardinia Sulcis rules: ‘The Sardinia Sulcis . .
Cited – Ingram v Little 27-Jul-1960
Two ladies had a car for sale. A buyer came along. He fooled them into believing him to be someone else, and they sold him the car, after checking the name in the telephone directory. Before the cheque bounced, the rogue sold the car to the . .
Cited – International Bulk Shipping and Services Ltd v President of India and Another CA 11-Dec-1995
Actions to enforce arbitration awards were brought, each in the name of a ship-owning company. At the time of the arbitrations the assets of each company had vested in a trustee in bankruptcy appointed under New York law, but the trustee had . .
Cited – Evans Construction Co Ltd v Charrington and Co Ltd CA 1983
The tenant sought a new lease and served a notice. The notice named the former landlord not the current landlord.
Held: Order 20 could be used to correct the name where the error was a mere mistaken description of the correct party, but not a . .
Cited – Yorkshire Regional Health Authority v Fairclough Building Ltd and Another CA 16-Nov-1995
The substitution of a successor party to a claim does not constitute a new claim for limitation purposes. Millett LJ considered the objects of the 1980 Act: ‘The 1980 Act was enacted in order to implement the recommendations of the Twenty-First . .
Cited – The Al Tawwab CA 1991
The ship ‘Sardinia Sulcis’ collided with the ‘Al Tawwab’. The charterers of the latter paid damages and so were subrogated to the owners’ rights against the owners of the Al Tawwab. They brought proceedings in rem in the name of ‘the Owners of the . .
Cited – Horne-Roberts (a Child) v Smithkline Beecham plc and Another CA 18-Dec-2001
The court has a power to order substitution of a party though the limitation period, and even the ‘long stop’ limitation period had expired. The claimant child sought damages after a vaccination. The batch had been attributed to the wrong . .
See Also – Adelson and Another v Associated Newspapers Ltd QBD 1-May-2007
. .

Cited by:

Cited – Hamilton and others v Allied Domecq Plc (Scotland) HL 11-Jul-2007
The pursuers had been shareholders in a company which sold spring water. The defenders took shares in the company in return for promises as to the promotion and distribution of the bottled water. The pursuers said that they had failed to promote it . .
See Also – Adelson and Another v Associated Newspapers Ltd QBD 19-Dec-2007
Applications were launched with in defamation proceedings to seek to recover damages for parties who had not previously been part of the proceedings.
Held: The amendments were refused. The new claimants were now out of time, and it was clear . .
See Also – Adelson and Another v Associated Newspapers QBD 19-Feb-2008
Complaint was made that an article was defamatory of the owner of Manchester United. The defendant now argued that the game was not worth the candle. The costs vastly exceeded any possible recovery, and it had openly offered vindication, and that . .
Lists of cited by and citing cases may be incomplete.

Defamation, Limitation

Updated: 11 July 2022; Ref: scu.254498

3M United Kingdom Plc and Another v Linklaters and Paines (A Firm): CA 3 May 2006

Claim in proceedings for damages for breach of duty under a retainer; The preliminary issue which the judge had to determine was whether the claimants had commenced the proceedings within any applicable period of limitation.

Judges:

Lord Justice Chadwick

Citations:

[2006] EWCA Civ 530

Links:

Bailii

Statutes:

Limitation Act 1980 12A(4)(b)

Jurisdiction:

England and Wales

Legal Professions, Limitation

Updated: 10 July 2022; Ref: scu.241407

Williams and Another v Lishman, Sidwell, Campbell and Price Ltd and Others: QBD 12 Jun 2009

Links:

Bailii

Jurisdiction:

England and Wales

Land, Limitation

Updated: 09 July 2022; Ref: scu.543498

AB and Others v Ministry Of Defence: QBD 19 Jun 2009

Judges:

Justice Foskett

Citations:

[2009] EWHC 1421 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – AB and Others v Ministry of Defence QBD 5-Jun-2009
Former members of the armed forces and others claimed damages for personal injuries, claiming that they had been obliged to expose themselves to the effects of atomic bomb explosions in the 1950s. The defendant argued that the claims were now out of . .
Lists of cited by and citing cases may be incomplete.

Limitation, Personal Injury

Updated: 09 July 2022; Ref: scu.347124

McCoubrey v Ministry of Defence: CA 24 Jan 2007

The defendant appealed a decision allowing a claim to proceed more than ten years after it had been suffered. The claimant’s hearing had been damaged after an officer threw a thunderflash into his trench on an exercise.
Held: The defendant’s appeal was allowed. ‘If a claimant can bring himself within section 11(4)(b), then he can start his claim outside the three year period as of right: no question of any discretion or balancing exercise arises. However, if a claimant relies upon section 33, the court has to carry out a balancing exercise in order to decide whether it is ‘equitable’ to permit his claim to be brought outside the three year period. ‘ The law has changed since the Bryn Alan and McAfferty cases: ‘The test under section 14(2) is substantially objective, and is not the mixture of subjective and objective in the way in which the analysis of Geoffrey Lane LJ in the McCafferty case was interpreted as indicating in a number of cases, culminating with the Bryn Alyn case. ‘ Whether an injury is ‘significant’ within section 14(1)(a), as expanded in section 14(2), must be decided by reference to the seriousness of the injury, and not by reference to its effect, let alone its subjectively perceived effect, on the claimant’s private life or career.’ and ‘the proper approach to the question raised by section 14(2) is to consider, on the hypothesis postulated by the section, the reaction to the injury (as opposed to its possible consequences) of a reasonable person in the objective circumstances of the actual claimant, while disregarding his actual personal attributes, such as intelligence aspirations aggressiveness and the like. ‘

Judges:

Ward LJ, Neuberger LJ, Tugendhat J

Citations:

Times 26-Jan-2007, [2007] EWCA Civ 17

Links:

Bailii

Statutes:

Limitation Act 1980 14(2) 33

Jurisdiction:

England and Wales

Citing:

Not Followed – McCafferty v Metropolitan Police Receiver CA 1977
The test of whether a plaintiff had sufficient knowledge to justify the start of time running against her takes into account her subjective characteristics but then applies an outsider’s view of what she should have thought.
Geoffrey Lane LJ . .
Cited – Dobbie v Medway Health Authority CA 11-May-1994
The plaintiff had a lump on her breast. The surgeon, without first subjecting the lump to a microscopic examination in order to determine whether it was cancerous or benign, removed the breast. This was in 1973. The lump was subsequently found to be . .
Cited – KR and others v Bryn Alyn Community (Holdings) Ltd and Another CA 10-Jun-2003
The court considered an extension of the time for claiming damages for personal injuries after the claimants said they had been sexually abused as children in the care of the defendants.
Held: The test to be applied under section 14(2) was . .
Cited – Catholic Care (Diocese of Leeds) and Another v Young CA 14-Nov-2006
The claimant sought damages saying that he had been abused as a child whilst in the defendant’s care. The defendants appealed a finding that the claimant had not first known of his injury more than three years before begining his action.
Held: . .
Cited – Forbes v Wandsworth Health Authority CA 21-Mar-1996
The plaintiff had a history of circulatory problems in his legs. He underwent surgery losing his leg. The question was when he should have sought advice as to why an attempted by-pass operation had resulted in one leg having to be amputated. He . .
Cited – Adams v Bracknell Forest Borough Council HL 17-Jun-2004
A attended the defendant’s schools between 1977 and 1988. He had always experienced difficulties with reading and writing and as an adult found those difficulties to be an impediment in his employment. He believed them to be the cause of the . .
Not followed – KR and others v Bryn Alyn Community (Holdings) Ltd and Another CA 12-Feb-2003
The respondent appealed decisions by the court to allow claims for personal injury out of time. The claims involved cases of sexual abuse inflicted by its employees going back over many years.
Held: The judge had misapplied the test laid down . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Limitation

Updated: 09 July 2022; Ref: scu.248020

Norton v Corus UK Ltd: CA 13 Nov 2006

Citations:

[2006] EWCA Civ 1630

Links:

Bailii

Jurisdiction:

England and Wales

Personal Injury, Limitation

Updated: 08 July 2022; Ref: scu.246990

P and O Nedlloyd Bv v Arab Metals Co and others: CA 13 Dec 2006

An order for specific performance had been refused in a disputed contract for carriage. The claimant argued that normal limitation periods should not be applied by analogy.
Held: Because there was no corresponding legal remedy the remedy in equity was not ‘correspondent to the remedy at law’, and nor did ‘the suit in equity [correspond] with an action at law’. Therefore it would not be correct to import normal limitation rules. The claimant’s appeal succeeded, and the claim should proceed to trial.
Lord Justice Moore-Bick said: ‘For more than two hundred years delay on the part of the claimant has been recognised as a defence to a claim for specific performance, which, like all equitable remedies, is discretionary. Lord Alvanley MR’s words in Milward v Earl Thanet (1801) 5 Ves 720n have passed into Chancery folklore: ‘a party cannot call upon a Court of Equity for specific performance, unless he has shewn himself ready, desirous, prompt, and eager.’ See also Lord Cranworth in Eads v Williams (1854) 4 De GM and G 674 at 691, 43 ER 671 at 678: ‘Specific performance is relief which this Court will not give, unless in cases where the parties seeking it come promptly, and as soon as the nature of the case will permit.’ Any suggestion that a claimant can delay for years in bringing his suit for specific performance is therefore contrary to well-established principle.’

Judges:

Lord Justice Buxton, Lord Justice Jonathan Parker and Lord Justice Moore-Bick

Citations:

[2006] EWCA Civ 1717, Times 15-Jan-2007, [2007] 2 Lloyd’s Rep 231, [2007] 2 All ER (Comm) 401

Links:

Bailii

Statutes:

Limitation Act 1980 36(1)

Jurisdiction:

England and Wales

Citing:

Cited – Knox v Gye HL 1872
A court will, by analogy, apply a statutory limitation period if the remedy in equity, specific performance, is ‘correspondent to the remedy at law’ and where ‘the suit in equity corresponds with an action at law’. Lord Westbury said: ‘For where the . .
Cited – Companhia De Seguros Imperio v Heath (REBX) Ltd and Others CA 20-Jul-2000
Although a claim for breach of fiduciary duty, as a claim in equity, was not subject to the same limitation periods imposed by the Act as claims in tort or contract, a court exercising an equitable jurisdiction should apply similar periods under the . .
See Also – P and O Nedlloyd Bv v Arab Metals Co and others CA 28-Mar-2006
. .
Cited – Milward v Earl Thanet CA 1801
Lord Alvanley MR said: ‘a party cannot call upon a Court of Equity for specific performance, unless he has shewn himself ready, desirous, prompt, and eager.’ . .

Cited by:

Cited – Heath v Kelly and Another ChD 24-Jul-2009
The defendant and the deceased had purchased a house as joint tenants in equity. The claimant sought to enforce an agreement for the sale of the defendant’s half share. Payment having been made. The defendant argued that the agreement was uncertain . .
Lists of cited by and citing cases may be incomplete.

Equity, Limitation

Updated: 08 July 2022; Ref: scu.246993

Consumer Protection Act 1987, Limitation Act 1980 35

Jurisdiction:

England and Wales

Appeal From – Halton International Inc (Holding) and Another v Guernroy Ltd ChD 9-Sep-2005
Parties had entered into a shareholders’ agreement as to voting arrengemets within a company. Thay disputed whether votes had been used in reach of that agreement, particularly as to the issue of new shares and their allotment, but the court now . .
Cited – Keech v Sandford ChD 1726
Trustee’s Renewed Lease also Within Trust
A landlord refused to renew a lease to a trustee for the benefit of a minor. The trustee then took a new lease for his own benefit. The new lease had not formed part of the original trust property; the minor could not have acquired the new lease . .
Cited – DEG-Deutsche Investitions und Entwicklungsgesellschaft mbH v Koshy and Other (No 3); Gwembe Valley Development Co Ltd (in receivership) v Same (No 3) CA 28-Jul-2003
The company sought to recover damages from a director who had acted dishonestly, by concealing a financial interest in a different company which had made loans to the claimant company. He replied that the claim was out of time. At first instance the . .
Cited – JJ Harrison (Properties) Ltd v Harrison CA 11-Oct-2001
A director had bought land belonging to the company, without disclosing its development potential.
Held: He had acquired the property as a constructive trustee for the company, and was accordingly accountable for it. . .
Cited – Taylor v Davies PC 19-Dec-1919
(Ontario) An assignee for the benefit of creditors conveyed mortgaged property to the mortgagee in satisfaction of part of the debt due to him. The mortgagee was also one of the inspectors required by the Canadian legislation to supervise the . .
Cited – Clarkson and Another v Davies and Others PC 23-Oct-1922
Ontario – Discussing the Taylor case, the Board said: ‘ . . it was there laid down that there is a distinction between a trust which arises before the occurrence of the transaction impeached and cases which arise only by reason of that transaction.’ . .
Cited – Clarkson v Davies PC 1923
In a case involving fraud, referring to Taylor v Davies, Lord Justice Clerk said that: ‘it was there laid down that there is a distinction between a trust which arises before the occurrence of the transaction impeached and cases which arises only by . .
Cited – Regal (Hastings) Ltd v Gulliver HL 20-Feb-1942
Directors Liability for Actions Ouside the Company
Regal negotiated for the purchase of two cinemas in Hastings. There were five directors on the board, including Mr Gulliver, the chairman. Regal incorporated a subsidiary, Hastings Amalgamated Cinemas Ltd, with a share capital of 5,000 pounds. There . .
Cited – Paragon Finance Plc (Formerly Known As National Home Loans Corporation Plc v D B Thakerar and Co (a Firm); Ranga and Co (a Firm) and Sterling Financial Services Limited CA 21-Jul-1998
Where an action had been begun on basis of allegations of negligence and breach of trust, new allegations of fraud where quite separate new causes of claim, and went beyond amendments and were disallowed outside the relevant limitation period. . .

Cited by:

Company, Contract, Limitation

Updated: 07 July 2022; Ref: scu.242876

Horton v Sadler and Another: HL 14 Jun 2006

The claimant had been injured in a road traffic accident for which the defendant was responsible in negligence. The defendant was not insured, and so a claim was to be made against the MIB. The plaintiff issued proceedings just before the expiry of the period, but failed to give first the requisite formal notice to the MIB. He now appealed against dismissal of his second set of proceedings for want of exercise of a judicial discretion to extend the limitation period.
Held: The claimant’s appeal succeeded. The House was being asked to depart from its decision in Walkley which had created an artficial distinction between claimants who made no application within the limitation period, and those who issued, but then failed to serve and had to re-issue outside the limitation period. Several cases were referred to where the case had been distinguished and there had been a reluctance to apply it. The court did have the discretion denied to it by Walkley, to allow extension of the time for a claim. Walkley was overruled.
Lord Bingham: ‘Over the past 40 years the House has exercised its power to depart from its own precedent rarely and sparingly. It has never been thought enough to justify doing so that a later generation of Law Lords would have resolved an issue or formulated a principle differently from their predecessors.’

Judges:

Lord Bingham of Cornhill, Lord Hoffmann, Lord Rodger of Earlsferry, Lord Carswell, Lord Brown of Eaton-under-Heywood

Citations:

[2006] UKHL 27, Times 19-Jun-2006, [2007] 1 AC 307, (2006) 91 BMLR 60, [2006] RTR 27, [2006] 2 WLR 1346, [2006] PIQR 30, [2006] 3 All ER 1177

Links:

Bailii

Statutes:

Limitation Act 1980 33

Jurisdiction:

England and Wales

Citing:

Overturned – Walkley v Precision Forgings Ltd HL 1979
The plaintiff tried to bring a second action in respect of an industrial injury claim outside the limitation period so as to overcome the likelihood that his first action, although timeous, would be dismissed for want of prosecution.
Held: He . .
Cited – Silverton v Goodall and Motor Insurance Bureau CA 26-Mar-1997
Sir Ralph Gibson explained the historical development of the Motor Insurers Bureau describing it as ‘a novel piece of extra statutory machinery’. . .
Cited – Thompson v Brown Construction (Ebbw Vale) Ltd HL 1981
The plaintiff’s solicitors, out of negligence, failed to issue a writ until one month after the limitation period had expired. The application to extend the period was rejected at first instance since he had an unanswerable claim against his . .
Cited – Firman v Ellis CA 1978
Writs had been issued within the limitation period, but then allowed to lapse.
Held: Section 2D gave a wide discretion to the court which was not limited to a residual class of case or to exceptional cases.
Ormrod LJ said: ‘The appellants . .
Cited – Cartledge v E Jopling and Sons Ltd HL 1963
The plaintiffs were steel dressers who, in the course of their employment, had inhaled quantities of noxious dust which had caused them to suffer from pneumoconiosis. They issued proceedings on 1 October 1956 but were unable to show any breach of . .
Cited – Practice Statement (Judicial Precedent) HL 1966
The House gave guidance how it would treat an invitation to depart from a previous decision of the House. Such a course was possible, but the direction was not an ‘open sesame’ for a differently constituted committee to prefer their views to those . .
Cited – Walkley v Precision Forgings Ltd CA 1978
The plaintiff appealed the strict application of the limitation laws against his claim. He had been injured whilst working as a grinder. He began one claim which lapsed, and began a second claim outside the limitation period, requesting the court to . .
Cited – Finch v Francis QBD 21-Jul-1977
Griffiths J considered the situation under which the court might use its discretion to extend a limitation period: ‘the object of the discretion was to provide for the occasional hard case’ and that its application ‘should be reserved for cases of . .
Cited – Rose v Express Welding Ltd CA 21-Jan-1986
. .
Cited – Barry Young (Deceased) v Western Power Distribution (South West) Plc CA 18-Jul-2003
The deceased had begun an action on becoming ill after exposure to asbestos by the defendant. He withdrew his action after receiving expert evidence that his illness was unrelated. A post-mortem examination showed this evidence to be mistaken. His . .
Cited – Chappell v Cooper CA 1980
The plaintiff’s writ had not been served within the required time, and it had become too late to extend its validity. The plaintiff isued a second writ. The defendant argued limitation. Counsel for the plaintiffs sought to distinguish Walkley on the . .
Cited – Jacqueline Adam v Rasal Ali CA 21-Feb-2006
The defendant sought damages against the defendant for personal injury from his alleged negligence. Her action was struck out and she recommenced the action. The defendant pleaded that she was out of time. The claimant said that the first action . .
Cited – Piggott v Aulton (Deceased) CA 29-Jan-2003
The claimant had issued proceedings against the deceased after his death, but before a personal representative had been appointed. They later discontinued and re-issued against the person appointed by the court to defend the action. The defendant . .
Cited – Deerness v John R Keeble and Son (Brantham) Ltd HL 1983
The plaintiff suffered very serious injuries as a passenger in a car, and a writ was issued within the three-year period against the driver and the owner of the car whose insurers made a substantial interim payment. The writ was not served, nor . .
Cited – Shapland v Palmer CA 23-Mar-1999
The plaintiff’s car was struck by a company car driven by the defendant in the course of her employment and she sought damages. Her action, against the employer, was struck out as late under the 1980 Act. She then commenced an action against the . .
Cited – Mcevoy v AA Welding and Fabrication Ltd CA 15-Dec-1997
Where a first writ issued within the primary limitation period is itself ineffective (although not a nullity) through having been issued variously without consent against a company in liquidation.
Held: The Walkley principle does not apply to . .
Cited – White v Glass CA 17-Feb-1989
The plaintiff had sued his club under its name, but it was an unincorporated association, and the action was stricken out as improperly constituted. The first writ issued within the primary limitation period but was ineffective. The defendant . .
Cited – Re Workvale Ltd (In Liquidation) CA 8-Apr-1992
A limited company was correctly restored to the register from dissolution so that its insurers could face an arguable claim. Where a first writ issued within the primary limitation period was ineffective (although not a nullity) through having been . .
Cited – Forward v Hendricks CA 6-Dec-1996
. .
Cited – Regina v National Insurance Commissioner, Ex parte Hudson HL 1972
The House considered whether it would have power to make a ruling with prospective effect only. Lord Diplock said the matter deserved further consideration; Lord Simon said that the possibility of prospective overruling should be seriously . .
Cited – Regina v G and R HL 16-Oct-2003
The defendants, young boys, had set fire to paper and thrown the lit papers into a wheelie bin, expecting the fire to go out. In fact substantial damage was caused. The House was asked whether a conviction was proper under the section where the . .
Cited – Morris v Lokass and Motor Insurers’ Bureau CC 17-Feb-2003
(Birmingham County Court ) The court considered a request to exercise its discretion to allow a claim to proceed despite the writ having been issued outside the limitation period.
Held: The court accepted the distinction proposed for the . .
Cited – Hartley v Birmingham City District Council CA 1992
The writ was issued one day late; there had been early notification of the claim; and the defendant’s ability to defend the case was unaffected. The plaintiff asked the court to exercide its discretion to allow the claim t proceed.
Held: The . .
Cited – Donovan v Gwentoys Ltd HL 1990
The plaintiff, then a 16 year old girl slipped and fell whilst employed at the defendant’s factory. The limitation period expired on her 21st birthday. She commenced proceedings five and a half months after that date. The judge extended time under . .
Cited – Corbin v Penfold Metallising Co Ltd CA 28-Apr-2000
The claimant was diagnosed as suffering from an industrial disease. He instructed solicitors promptly, but they failed to issue within the limitation period. The claimant applied for the time to be lengthened to allow him to claim. The court . .
Cited – Das v Ganju CA 31-Mar-1999
Where a personal injury action had been delayed for five years by bad advice from solicitors and counsel, the court’s discretion should be exercised to allow the plaintiff to proceed with her claim, not herself being responsible for the delay.
Cited – Hytec Information Systems Limited v Council of City of Coventry CA 4-Dec-1996
The Court directed that unless particulars were served by a specified date the defendant’s claim should be struck out. The defendant served some particulars but it was decided that the defendant had deliberately flouted the unless order and its . .
Appeal from – Horton v Sadler and Another CA 28-Jun-2004
. .

Cited by:

Cited – Seal v Chief Constable of South Wales Police HL 4-Jul-2007
The claimant had sought to bring proceedings against the respondent, but as a mental patient subject to the 1983 Act, had been obliged by the section first to obtain consent. The parties disputed whether the failure was a procedural or substantial . .
Cited – Gibson v United States of America PC 23-Jul-2007
(The Bahamas) The US government sought the extradition of the appellant from the Bahamas on drugs charges. The warrants were found to be void, and the defendant released unconditionally, when the nmagistrate rejected evidence from an admitted . .
Cited – McDonnell and Another v Walker CA 24-Nov-2009
The defendant appealed against the disapplication of section 11 of the 1980 Act under section 33.
Held: The appeal succeeded. The defendant had not contributed significantly to the delay: ‘the defendant received claims quite different in . .
Mentioned – Austin v Mayor and Burgesses of The London Borough of Southwark SC 23-Jun-2010
The appellant’s brother had been the secure tenant of the respondent Council which had in 1987 obtained an order for possession for rent arrears suspended on condition. The condition had not been complied with, but the brother had continued to live . .
Cited – Aktas v Adepta CA 22-Oct-2010
The court was asked whether, when a claim was issued towards the very end of a limitation period, but was then not served, and the claim was struck out, CPR Part 7.5(1) gave a further four months in which it could be resurrected at the discretion of . .
Cited – Al Rabbat v Westminster Magistrates’ Court Admn 31-Jul-2017
The claimant appealed against refusal of an application for judicial review in turn of a refusal to allow private prosecutions of Tony Blair, Jack Straw and Lord Goldsmith in respect of their involvement in the war in Iraq, and the alleged crime of . .
Cited – Knauer v Ministry of Justice SC 24-Feb-2016
The court was asked: ‘whether the current approach to assessing the financial losses suffered by the dependant of a person who is wrongfully killed properly reflects the fundamental principle of full compensation, and if it does not whether we . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Limitation

Updated: 06 July 2022; Ref: scu.242522

Cohen v Kingsley Napley: QBD 12 May 2005

Citations:

[2005] EWHC 899 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Cohen v Kingsley Napley and Another CA 10-Feb-2006
. .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Limitation

Updated: 06 July 2022; Ref: scu.229278

J A Pye (Oxford) Ltd and Another v Graham and Another: CA 6 Feb 2001

Leave to appeal to the House of Lords refused.

Citations:

[2001] EWCA Civ 117

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – J A Pye (Oxford) Ltd and Another v Caroline Graham and Another CA 6-Feb-2001
Where a tenant under a grazing license had stayed over after the end of the tenancy, and had been refused a renewed licence, and had continued to graze the land for over twelve years, the mere overstaying was not enough to evidence an animus . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 06 July 2022; Ref: scu.200813

Siddiq v Kings College London: CA 6 Feb 2001

Citations:

[2001] EWCA Civ 159

Links:

Bailii

Jurisdiction:

England and Wales

Education, Discrimination, Limitation

Updated: 06 July 2022; Ref: scu.200839

Senior and Another v Pearson and Ward (A Firm): CA 26 Jan 2001

An amendment outside the limitation period against solicitors alleging a failure to advise was permitted, where the original allegation was simply that the solicitors had acted without or in disregard of instructions.

Citations:

[2001] EWCA Civ 229

Links:

Bailii

Statutes:

Limitation Act 1980

Jurisdiction:

England and Wales

Confined to its facts – Walkley v Precision Forgings Ltd HL 1979
The plaintiff tried to bring a second action in respect of an industrial injury claim outside the limitation period so as to overcome the likelihood that his first action, although timeous, would be dismissed for want of prosecution.
Held: He . .
Cited – Chappell v Cooper CA 1980
The plaintiff’s writ had not been served within the required time, and it had become too late to extend its validity. The plaintiff isued a second writ. The defendant argued limitation. Counsel for the plaintiffs sought to distinguish Walkley on the . .
Cited – Thompson v Brown Construction (Ebbw Vale) Ltd HL 1981
The plaintiff’s solicitors, out of negligence, failed to issue a writ until one month after the limitation period had expired. The application to extend the period was rejected at first instance since he had an unanswerable claim against his . .
Cited – Re Workvale Ltd (In Liquidation) CA 8-Apr-1992
A limited company was correctly restored to the register from dissolution so that its insurers could face an arguable claim. Where a first writ issued within the primary limitation period was ineffective (although not a nullity) through having been . .
Cited – White v Glass CA 17-Feb-1989
The plaintiff had sued his club under its name, but it was an unincorporated association, and the action was stricken out as improperly constituted. The first writ issued within the primary limitation period but was ineffective. The defendant . .
Cited – Deerness v John R Keeble and Son (Brantham) Ltd HL 1983
The plaintiff suffered very serious injuries as a passenger in a car, and a writ was issued within the three-year period against the driver and the owner of the car whose insurers made a substantial interim payment. The writ was not served, nor . .
Cited – Shapland v Palmer CA 23-Mar-1999
The plaintiff’s car was struck by a company car driven by the defendant in the course of her employment and she sought damages. Her action, against the employer, was struck out as late under the 1980 Act. She then commenced an action against the . .
Cited – Barry Young (Deceased) v Western Power Distribution (South West) Plc CA 18-Jul-2003
The deceased had begun an action on becoming ill after exposure to asbestos by the defendant. He withdrew his action after receiving expert evidence that his illness was unrelated. A post-mortem examination showed this evidence to be mistaken. His . .
Cited – KR and others v Bryn Alyn Community (Holdings) Ltd and Another CA 12-Feb-2003
The respondent appealed decisions by the court to allow claims for personal injury out of time. The claims involved cases of sexual abuse inflicted by its employees going back over many years.
Held: The judge had misapplied the test laid down . .
Cited – Donovan v Gwentoys Ltd HL 1990
The plaintiff, then a 16 year old girl slipped and fell whilst employed at the defendant’s factory. The limitation period expired on her 21st birthday. She commenced proceedings five and a half months after that date. The judge extended time under . .

Cited by:

Cited – Horton v Sadler and Another HL 14-Jun-2006
The claimant had been injured in a road traffic accident for which the defendant was responsible in negligence. The defendant was not insured, and so a claim was to be made against the MIB. The plaintiff issued proceedings just before the expiry of . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Limitation

Updated: 05 July 2022; Ref: scu.238659

Andrews v Barnett Waddingham Llp Raj Waddingham: CA 21 Feb 2006

Judges:

Lord Justice Brooke Vice-President of the Court of Appeal (Civil Division) Lord Justice Richards The Right Hon Sir Paul Kennedy

Citations:

[2006] EWCA Civ 93

Links:

Bailii

Jurisdiction:

England and Wales

Professional Negligence, Limitation

Updated: 05 July 2022; Ref: scu.238660

Forsyth v A F Stoddard and Co Ltd: OHCS 1985

An action for damages by an employee against his employer was raised 48 days after the expiry of the triennium due to an oversight by an assistant with the pursuer’s solicitors. The sheriff refused to allow the action to be brought, the Sheriff Principal allowed it and on appeal the Second Division reversed the decision of the Sheriff Principal.
Held: A pursuer in such circumstances has to accept responsibility for the sins of omission or commission of his solicitor as ‘the correct exposition of the law’. since the pursuer was legally aided, the defenders would probably have to pay their own expenses, win or lose, whereas if the pursuer were refused the indulgence which he sought the defenders would not be placed in that position, was a relevant consideration: ‘In every case of this nature there is a common theme. If the pursuer is granted the court’s indulgence the defender loses a cast iron case, since but for that he would be legally free from the claim, and he is faced with the risk of losing the case with the consequential financial repercussions. That is a factor to be taken into account. He has no way out of that. On the other hand, if the pursuer is not granted the court’s indulgence his claim against the defender comes to an end, and the defender is freed and relieved of a claim which might have been a perfectly justifiable one. However, the pursuer might have, as here, an action against his solicitors for professional negligence which might or might not recoup him in whole or in part for the damages which he could no longer obtain from the defender. There are imponderables about such an alternative, and its outcome can vary from case to case. Neither of these contrasting considerations is in itself conclusive, and the weights to be applied to them respectively will again depend on the circumstances. In my opinion it is not illegitimate to have in consideration the strength of the case against the third party and the likelihood of a successful prosecution of such a case, but again that is just a factor. Another consideration (although the Sheriff Principal rejected it – wrongly in my view), even if it only carries a little weight, is the burden of the expenses the defenders have to bear even if they are successful, since the pursuer is a legally assisted person. This in a way is merely consequential on the major issue, but it is entitled to be taken into account for what it is worth.’

Judges:

Kuenyehia and others v International Hospitals Group Ltd: CA 25 Jan 2006

Service of litigation documents by fax was not an acceptabe departure from the rules where the party being served had not beforehand given consent to service in this manner. The mere advertisement of a fax number did not amount to such consent. Such service could not be characterised as no more than a minor departure from the rules.
Neuberger LJ said: ‘we do not consider that the claimants can rely on the absence of prejudice to the defendant as a reason for letting the Judge’s decision to stand. In our view . . the time limits in the CPR, especially with regard to service of the claim form where the limitation period may have expired, are to be strictly observed, and extensions and other dispensations are to be sparingly accorded, especially when applied for after time has expired. While there may be exceptional cases, we consider that prejudice is only relevant in this sort of case to assist a defendant, where the court would otherwise think it right to dispense with service. In other words, prejudice to the defendant is a reason for not dispensing with service, but the absence of prejudice cannot usually, if ever, be a reason for dispensing with service’ and ‘Service on the defendant’s solicitors was ineffective under the CPR, and it cannot be said to have been a ‘minor departure’ from the permitted methods of service to serve on solicitors who had not been nominated by the defendant. In any event, for the reasons already given, this would not have been an exceptional case. Quite apart from any other point, it can fairly be said that it would have been only too easy for the claimants’ solicitors to ask the defendant, with whom they had been in fairly close contact, to nominate its solicitors’ address as its address for service in accordance with r.6.5(2), but they never did so.’

Judges:

Lord Justice Waller Lord Justice Dyson Lord Justice Neuberger

Citations:

[2006] EWCA Civ 21, Times 17-Feb-2006

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Brown and Others v InnovatorOne Plc and Others ComC 19-Jun-2009
The claimants served proceedings by fax. The defendants denied that it was effective saying that they had not confirmed that they were instructed to accept service or that as required by the rules they had confirmed that they would accept service by . .
Lists of cited by and citing cases may be incomplete.

Contract, Limitation, Litigation Practice

Updated: 04 July 2022; Ref: scu.238134

Aer Lingus v Gildacroft Ltd and Another: CA 17 Jan 2006

The claimant had been found liable to pay damages for personal injury, and now sought contribution from the defendants. The defendants said that they were out of time since the contribution action had been commenced more than 2 years after the judgment.
Held: The appeal succeeded. The judgment had been for damages to be assessed. Those damages had been finally set less than two years before the action. ‘time does not begin to run until the quantum of the claimant tortfeasor’s liability has been ascertained either by judgment (or award) or agreement. In my judgment that is consistent with the language of section 10. Indeed the textual and background considerations support one another towards that conclusion.’

Judges:

Lord Justice Moore-Bick Lord Justice Rix Sir Anthony Clarke MR

Citations:

Times 23-Jan-2006, [2006] EWCA Civ 4

Links:

Bailii

Statutes:

Civil Liability (Contribution) Act 1978, Limitation Act 1980 10

Jurisdiction:

England and Wales

Citing:

Cited – Royal Brompton Hospital National Health Service Trust v Hammond and others HL 25-Apr-2002
The claimants sought damages against the defendants for their late delivery of a building. The contractors sought to share the damages with the architects who had certified the delays, defeating their own claims.
Held: The Act sought to extend . .
Mentioned – Wolmershausen v Gullick 1893
Claim for contribution between co-securities. Wright J reviewed the development of the entitlement to contribution from Justinian’s statement of it, through its application by the custom of the City of London in the time of Queen Elizabeth to the . .
Mentioned – Post Office v Norwich Union Fire Insurance Society Ltd CA 1967
A contract of insurance provided an indemnity for ‘all sums which the insured shall become legally liable to pay as compensation in respect of loss of property’. The claim was by the Post Office against a contractor, Potters, for damaging one of . .
Mentioned – Telfair Shipping Operation SA v Inersea Carriers SA, the Caroline P 1984
A claim was made in contract based on an indemnity.
Held: The claim was not time-barred. Time normally begins to run against a claim on a general indemnity only from the moment when the liability of the indemnified is accepted by him or . .
Mentioned – Bradley v Eagle Star Insurance Co Ltd HL 1989
Mrs Bradley was employed by Dart Mill several times from 1933 and 1970 and acquired byssinosis from inhaling cotton dust. The company was wound up in 1975 and dissolved in 1976. In 1984 she applied to the court for pre-action disclosure under . .
Cited – Wimpey (George) Co Ltd v British Overseas Airways Corporation HL 1954
A joint tortfeasor could escape liability in contribution proceedings if it had been unsuccessfully sued by the injured person in an action brought outside the relevant limitation period. Where a court has to decide between two competing cases, if . .
Cited – Ronex Properties v. John Laing Construction Ltd CA 1983
The court considered a claim for contribution between tortfeasors. Donaldson LJ said: ‘The starting point of this submission is that a cause of action for contribution, under the Law Reform (Married Women and Tortfeasors) Act 1935, arises at the . .
Cited – Harvey v R G O’Dell Ltd 1958
. .
Cited – Knight v Rochdale Healthcare NHS Trust, the National Health Service Litigation Authority, The Secretary of State for Health QBD 23-Jul-2003
A contribution to a damages award was sought. The two year period under section 10 had expired between the anniversary of the date on which an agreement to settle the victim’s claim had been made and the anniversary of the consent order which had . .
Lists of cited by and citing cases may be incomplete.

Limitation

Updated: 04 July 2022; Ref: scu.237710

Cited – Graham and others v Mayrick ChD 23-Mar-2006
The claimants sought specific performance of a compromise agreement with the defendant after a dispute over a strip of land. The defendant appealed a finding that the claimants had shown satisfactory title.
Held: ‘It has long been established . .

Cited by:

Leave to Appeal – Trustees In the Charity of Sir John Morden v Mayrick; Graham v Mayrick CA 12-Jan-2007
The claimant had owned tracts of land in London for very many years, but the title deeds had been lost. The defendant had purchased a part from a company who had in turn purchased from the claimants, but the parties disputed an adjacent strip of . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 04 July 2022; Ref: scu.242697

England and Wales

Land, Limitation

Updated: 03 July 2022; Ref: scu.217834

Griffin and others v Clwyd Health Authority and others: CA 14 May 2001

Citations:

[2001] EWCA Civ 818

Links:

Bailii

Statutes:

Limitation Act 1980 33

Jurisdiction:

England and Wales

Cited – Farraj and Another v King’s Healthcare NHS Trust and Another QBD 26-May-2006
The claimants sought damages after the birth of their child with a severe hereditary disease which they said the defendant hospital had failed to diagnose after testing for that disease. The hospital sought a contribution from the company CSL who . .
Cited – Edwards v Golding and others CA 3-Apr-2007
The claimant appealed against an order that his claim in defamation had failed for limitation, the judge having held that time ran from publication even though the claimant did not know the identity of the author.
Held: The appeal was . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Limitation

Updated: 01 July 2022; Ref: scu.227924

Burgin v Sheffield City Council and Another: CA 14 Apr 2005

Citations:

[2005] EWCA Civ 482

Links:

Bailii

Statutes:

Limitation Act 1980 3391)

Jurisdiction:

England and Wales

Limitation, Personal Injury

Updated: 30 June 2022; Ref: scu.224904

Generay Ltd v Containerised Storage Company Ltd: CA 23 Mar 2005

Judges:

Peter Gibson, Neuberger LJJ, Sir Martin Nourse

Citations:

[2005] EWCA Civ 478

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Chambers v London Borough of Havering CA 20-Dec-2011
The defendant appealed against an order for him to surrender possession of land he had claimed by adverse possession. The Council was the registered proprietor. The defendant said he had used the land since 1981 for dumping of motor vehicle parts. . .
Lists of cited by and citing cases may be incomplete.

Registered Land, Limitation

Updated: 30 June 2022; Ref: scu.224775

Batsford Estates (1983) Company Ltd v Taylor and Another: CA 29 Apr 2005

The company owner eventually made a positive decision not to take any possession proceedings against the occupiers following service of a notice to quit. The occupiers then remained in possession for more than 12 years.
Held: After serving a notice to quit the owner did not take any further steps to obtain possession, even after Mr Taylor had moved back into the farmhouse in February 1986: ‘In my judgment, although it may not be possible to point to some overt act by the Estate from which permission can be inferred, the matters relied upon by Mr Morshead certainly constitute demonstrable circumstances from which the inference can be made… Further, it is clear that a reasonable person (who must be assumed to have knowledge of the material facts) would have appreciated that Mr Taylor’s occupation was with the permission of the Estate.’
and ‘A permission to occupy land can only be implied if it is communicated by words or conduct. At all events in the context of adverse possession, that submission cannot be correct. Once communicated, the permission would cease to be implied and become express. The concept of a communicated implied permission is difficult, if not impossible, to comprehend.’

Judges:

Sir Martin Nourse, Gage and Pill LLJ

Citations:

[2005] EWCA Civ 489, [2005] EGLR 12

Links:

Bailii

Statutes:

Limitation Act 1980 Sch 1 8(4)

Jurisdiction:

England and Wales

Cited by:

Land, Limitation

Updated: 29 June 2022; Ref: scu.224499

Clowes Developments (UK) Ltd. v Walters and others: ChD 20 Apr 2005

Citations:

[2005] EWHC 669 (Ch)

Links:

Bailii

Registered Land, Limitation

Updated: 29 June 2022; Ref: scu.224312

Harley and Others v Smith and Others: QBD 20 Jan 2009

Judges:

Foskett J

Citations:

[2009] EWHC 56 (QB), [2009] PIQR P11, [2009] 1 Lloyd’s Rep 359

Links:

Bailii

Jurisdiction:

England and Wales

Personal Injury, Negligence, Limitation

Updated: 29 June 2022; Ref: scu.346740

In re Overnight Limited; Goldfarb v Higgins and Another: ChD 11 Feb 2009

The liquidator sought to commence an action for fraudulent trading against a former director, who responded that the claim was time barred.
Held: The claim arose when the winding-up order was made and not on any of the earlier dates suggested by the second respondent.

Judges:

Personal Injury, Limitation, Torts – Other

Updated: 29 June 2022; Ref: scu.279537

Green and others v Gaul and Another; In re Loftus deceased: ChD 18 Mar 2005

The claimants began an action in January 2003 to seek to set aside the appointment of an administrator from December 1991, and to have set aside transfers of property made within the estate.
Held: The limitation period against a personal representative began to run only after one year, the executor’s year, after the grant. No right of action arose until the executor became under a duty to distribute.
‘As regards the application for removal under Administration of Justice Act 1985, section 50, it is a matter for the discretion of the court, and that it is reasonable for the court to take a pragmatic approach, to consider the views of the beneficiaries and the interests of the estate as a whole.’
The family members disputed whether there had been a compromise of a dispute over the assets in their father’s estate.

Judges:

Lawrence Collins J

Citations:

[2005] 2 All ER 700, Times 28-Mar-2005, [2005] EWHC 406 (Ch), [2005] 1 WLR 1890

Links:

Bailii

Statutes:

Real Property Limitation Act 1860 13, Limitation Act 1980 21(3), Administration of Justice Act 1985 50

Jurisdiction:

England and Wales

Citing:

Cited – In re Diplock’s estate CA 1948
After considering a situation in which trust money had been applied in making alterations to the property of an innocent third party but had not added to the value of the property,
Held: The origin of the equitable rules of tracing were . .
Cited – Sevcon Ltd v Lucas CAV Ltd HL 1986
A claim was brought for the infringement of a patent. It was brought after the specification had been published, but before the patent had been sealed.
Held: Time might run from a date before the plaintiff was entitled to sue. The cause of . .
Distingusihed – Hornsey Local Board v Monarch Investment Building Society CA 1889
The local authority had incurred expense in paving a street. They were entitled to apportion those expenses amongst the owners of the properties fronting onto that street and summarily to recover from the respective owners the amounts so . .
Applied – In Re Johnson, Sly v Blake 1855
The commencement of the limitation period against a beneficiary ran from the time when he acquired a present right to receive the inheritance. Time ran from the end of the executor’s year when the interest fell into possession.
Chitty J said: . .
Cited – Letterstedt v Broers PC 22-Mar-1884
(Supreme Court of the Cape of Good Hope) Lack of harmony may be of itself a good reason for a trustee to resign or be dismissed. Lord Blackburn approved a passage in Story’s Equity Jurisprudence, s 1289: ‘But in cases of positive misconduct, courts . .
Cited – Ministry of Health v Simpson; In re Diplock dec HL 1950
The will of Cable Diplock purported to make a gift to charity, and was distributed accordingly. The house however found the gift to be invalid.
Held: A personal remedy existed for the recovery of amounts wrongly paid in the distribution of an . .
Cited – Re Pauling’s Settlement Trusts (No.1) CA 29-May-1963
Property had been placed in trust for the daughter of the family, fearing that she might fritter it away. The trust was managed by the bank. The judge had found that, having misunderstood the powers of advancement given, the bank was liable to repay . .
Cited – Nelson v Rye and Another ChD 5-Dec-1995
The claimant, a solo musician appointed the defendant to be his manager collecting the fees and royalties due to him and paying his expenses. Rye was to account to him annually for his net income after deducting his own commission. When the . .
Cited – Evans v Westcombe; re Evans ChD 10-Mar-1999
Where available, missing beneficiary insurance was the preferred way of dealing with the problem, rather than applications to the court for Benjamin or other similar orders. Insurance should be cheaper and more certain for the personal . .
Cited – Earnshaw and Others v Hartley CA 31-Mar-1999
An administrator de son tort, who was also a beneficiary, held the estate property on trust, and so could not establish adverse possession against the estate during the period of trusteeship. He held a sufficient interest in the assets already. A . .
Cited – Gwembe Valley Development Co Ltd (In Receivership) v Koshy and Others ChD 8-Feb-2000
A company could give several people the power to appoint a receiver in respect of different elements of its assets. If this was done there was no fundamental reason why such appointments should not be put in effect. The appointment of one receiver . .
Cited – DEG-Deutsche Investitions und Entwicklungsgesellschaft mbH v Koshy and Other (No 3); Gwembe Valley Development Co Ltd (in receivership) v Same (No 3) CA 28-Jul-2003
The company sought to recover damages from a director who had acted dishonestly, by concealing a financial interest in a different company which had made loans to the claimant company. He replied that the claim was out of time. At first instance the . .

Cited by:

Cited – Doodes v Gotham, Perry ChD 17-Nov-2005
The trustee in bankruptcy had taken a charge on the property in 1992 to support the bankruptcy in 1988. He sought to enforce it in 2005. The chargor appealed an order which denied he was protected by limitation.
Held: The appeal succeeded. . .
Cited – Gotham v Doodes CA 25-Jul-2006
The former bankrupt resisted sale of his property by the trustee, saying that enforcement was barred by limitation. He and his wife bought the property in early 1988, and he was made bankrupt in October 1988. He was dischaged from bankruptcy in . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Limitation

Updated: 29 June 2022; Ref: scu.223691