Category: Limitation

The Convergence Group Plc and Another v Chantrey Vellacott (a Firm): CA 16 Mar 2005

An accountant sought payment of his professional fees. The defendants had sought to re-amend their defence and counterclaim. Appeals had variously been allowed to go ahead or denied after the master had not been able to deal with all of them for lack of time.
Held: The several appeals raised common issues. Some were first appeals and some second. The applicable test for such appeals when heard together was that in CPR 52.3(6), treating them as first appeals. The new allegations arose out of the same or substantially the same facts as those already pleaded, so that permission to amend was granted.

Judges:

Clarke, Jonathan Parker LJJ

Citations:

Times 25-Apr-2005, [2005] EWCA Civ 290

Links:

Bailii

Statutes:

Civil Procedure Rules 52.13(2) 52.3(6)

Jurisdiction:

England and Wales

Citing:

Cited – Uphill v BRB (Residuary) Ltd CA 3-Feb-2005
The court considered an application for leave for a second appeal.
Held: Pursuant to the Practice Direction, the court certified that though this was an application for leave, it could be cited: ‘the reference in CPR 52.13(2)(a) to ‘an . .

Cited by:

Cited – Berezovsky v Abramovich ComC 22-May-2008
Applications were made to amend pleadings and for consequential orders. The claimant sought damages of $4.3 billion alleging breach of trust. The claimant sought to add claims which the defendant said were out of time.
Held: The proposed . .
Cited – Dowson and Others v Northumbria Police QBD 30-Apr-2009
Nine police officers claimed damages for alleged harassment under the 1997 Act by a senior officer in having bullied them and ordered them to carry out unlawful procedures. Amendments were sought which were alleged to be out of time and to have . .
Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules, Limitation

Updated: 29 June 2022; Ref: scu.223578

Abbott and Another v Will Gannon and Smith Ltd: CA 2 Mar 2005

The claimant had employed the defendants to design refurbishment works for their hotel. The work was said to be negligent, and the claimant sought damages. The defendant argued as a preliminary point that the claim was time barred. The question was asked as to whether Pirelli remained good law, in the light of the decision in Murphy v Brentwood.
Held: The court was bound by the decisions in Pirelli and Ketteman, the situation being on all fours with Pirelli, whatever doubts there might be about it: ‘Pirelli was approved in Ketteman and was cited without disapproval in Murphy by the House which included two members (Lords Bridge and Brandon) who were party to the decision in Pirelli. It has not been expressly over-ruled and I am not persuaded that this has been done impliedly. Lord Lloyd left open the question as to whether Pirelli was still the law in England. It seems to me that only the House of Lords can decide whether it is or not. ‘

Judges:

Lord Justice Mummery, Lord Justice Tuckey And Lord Justice Clarke

Citations:

[2005] BLR 195, [2005] EWCA Civ 198, Times 29-Apr-2005

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Pirelli General Cable Works v Oscar Faber and Partners HL 2-Jan-1983
The plaintiff asked the defendant consulting engineer to design an extension to their factory in 1969. Not later than in April 1970, cracks developed in the chimney. In 1977 the cause of the damage was discovered. It arose from design faults in the . .
Cited – Forster v Outred and Co CA 1981
A mother signed a mortgage deed charging her property to H as security for a loan to her son. She claimed the solicitor had been negligent in his advice. The solicitor replied that the claim was out of time. The loss accrued not when demand for . .
Cited – Bellefield Computer Services Limited, Unigate Properties Limited; Unigate Dairies Limited; Unigate (Uk) Limited; Unigate Dairies (Western) Limited v E Turner and Sons Limited Admn 28-Jan-2000
The Defendant builders constructed a steel building to be used as, inter alia. a dairy. The original owners sold it to the appellants. A fire spread from the storage area to the rest of the dairy and caused much damage. The Builders, had they . .
Cited – Ketteman v Hansel Properties Ltd HL 1987
Houses were built on defective foundations. The purchasers sued the builders and later the architects who designed them. The defendants argued that the houses were doomed from the start so that the cause of action accrued, not when the physical . .
Cited – Murphy v Brentwood District Council HL 26-Jul-1990
Anns v Merton Overruled
The claimant appellant was a house owner. He had bought the house from its builders. Those builders had employed civil engineers to design the foundations. That design was negligent. They had submitted the plans to the defendant Council for approval . .
Cited – Invercargill City Council v Hamlin PC 12-Feb-1996
(New Zealand) Seventeen years earlier the plaintiff had asked a builder to construct a house for him, but it now appeared that the foundations had been inadequate. The building company no longer being in existence, he sought damages from the local . .
Lists of cited by and citing cases may be incomplete.

Limitation, Construction

Updated: 29 June 2022; Ref: scu.223109

Ridgeway Motors (Isleworth) Ltd v Alts Ltd: CA 10 Feb 2005

The company appelaed a refusal of the judge to strike out a winding up petition. They said the petition was based upon a judgment which was now time barred. The petitioner replied that such a petition was not an action under the section.
Held: Although a winding up petition is, in a general sense, a ‘proceeding in a court of law’ and that it is not proper to characterise it as the individual execution of a judgment obtained by a creditor of the company, the court remained bound by Lowsley and by Lamb.

Judges:

Lord Justice Brooke Vice-President Of The Court Of Appeal (Civil Division) Lord Justice Mummery And Lord Justice Scott Baker

Citations:

[2005] EWCA Civ 92, Times 24-Feb-2005

Links:

Bailii

Statutes:

Limitation Act 1980 38(1)

Jurisdiction:

England and Wales

Citing:

Appeal from – Ridgeway Motors (Isleworth) Ltd v Altis ChD 21-May-2004
The company sought to strike out a winding up petition presented by the respondents, saying a winding up petition was by way of an action, and was barred by statute after six years.
Held: A winding up petition was not an action within the . .
Cited – W T Lamb and Sons v Rider CA 1948
The judge at first instance had rescinded the master’s order giving leave to the judgment creditor to proceed to levy execution although six years had passed since the judgment. On appeal the judgment creditor challenged the validity of the rule of . .
Cited – Bennett v The Governor and Company of the Bank of Scotland CA 23-Jul-2004
The bank had obtained judgment against the defendant, but had failed to act upon it, and the judgment became unenforceable. It then began later proceedings on the original debt (still within the applicable limitation period). The defendant said this . .
Cited – Lowsley and Another v Forbes (Trading As I E Design Services) HL 29-Jul-1998
The plaintiffs, with the leave of the court, had obtained garnishee and charging orders nisi against the debtor 11 and a half years after they had obtained a consent judgment.
Held: An application by the judgment debtor to set aside the orders . .
Cited – Re a Debtor ChD 1997
The creditor appealed the decision to set aside a statutory demand as statute barred.
Held: The appeal was dismissed. Bankruptcy proceedings based on a statutory demand for moneys due under a previous default judgment constituted ‘an action . .
Cited – Black-Clawson International Ltd v Papierwerke Waldhof Aschaffenburg AG HL 5-Mar-1975
Statute’s Mischief May be Inspected
The House considered limitations upon them in reading statements made in the Houses of Parliament when construing a statute.
Held: It is rare that a statute can be properly interpreted without knowing the legislative object. The courts may . .
Cited – Berliner Industriebank Aktiengesellschaft v Jost 1971
The distinction ‘between the right to sue on a judgment (which is a substantive right) and the right to issue execution under it (which is a procedural right or remedy) has always been recognised in the law of limitation.’ . .
Cited – Berkeley v Elderkin 1853
An action in the High Court on a debt proved in the County Court did not lie: ‘But where a specific remedy is provided for the recovery of such damages or sums of money, this mode of proceeding cannot be resorted to, as in the case of the new County . .
Cited – Re Overmark Smith Warden Ltd ChD 1982
An ordinary creditor’s cause of action for non-payment of a contract debt is barred after the expiration of 6 years from the date of the accrual of his cause of action. He is then no longer a creditor of the company and is neither entitled to . .
Cited – In re Lines Bros Ltd CA 1982
The liquidators in a creditors voluntary liquidation converted foreign currency debts of the company into Sterling at the rate of exchange prevailing at the date of the resolution to wind up. As a result of the depreciation of Sterling against the . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Limitation

Updated: 29 June 2022; Ref: scu.222613

Inland Revenue and Another v Deutsche Morgan Grenfell Group Plc: CA 4 Feb 2005

The company sought repayment of excess advance corporation tax payments made under a mistake of law. The question was the extent of the effect of the ruling in Klienwort Benson, in particular whether it covered sums paid as taxation, and how the law of limitation was to be allowed for.
Held: Money paid under a mistake as to law was subject to restitution either where the demand had been unlawful even though it was a payment of tax, but such a claim was subject to limitation laws, or under section 33 of the 1970 Act where the demand was lawful. The Kleinwort Benson case could not be used to make such a claim.

Judges:

Buxton, Rix, Jonathan Parker LJJ

Citations:

[2005] EWCA Civ 78, Times 15-Feb-2005

Links:

Bailii

Statutes:

Taxes Management Act 1970 33, Limitation Act 1980

Jurisdiction:

England and Wales

Citing:

Cited – Woolwich Equitable Building Society v Inland Revenue Commissioners (2) HL 20-Jul-1992
The society had set out to assert that regulations were unlawful in creating a double taxation. It paid money on account of the tax demanded. It won and recovered the sums paid, but the revenue refused to pay any interest accrued on the sums paid. . .
Appeal from – Deutsche Morgan Grenfell Group Plc v The Commissioners of Inland Revenue, HM Attorney General ChD 18-Jul-2003
The taxpayer sought to bring an action for restitution by the revenue of sums paid under a mistake of law. Under the Metallgesellschaft decision, rights of election for recovery of overpaid tax applied only between UK resident companies.
Held: . .
Cited – Metallgesellschaft Ltd and Others v Inland Revenue Commissioners and Another Hoechst Ag and Another v Same ECJ 8-Mar-2001
The British law which meant that non-resident parent companies of British based businesses were not able to recover interest on payments of advance corporation tax, was discriminatory against other European based companies. Accordingly the law was . .
Cited – Kleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
Cited – British Steel Plc v Her Majesty’s Commissioners for Customs and Excise CA 20-Dec-1996
The claimant company paid excise duty on hydrocarbon oil used in its blast furnaces, whilst consistently contending that it was entitled to relief under section 9(1) of that Act on the ground that the oil was not used as fuel. The Commissioners . .
Cited – Marcic v Thames Water Utilities Limited HL 4-Dec-2003
The claimant’s house was regularly flooded by waters including also foul sewage from the respondent’s neighbouring premises. He sought damages and an injunction. The defendants sought to restrict the claimant to his statutory rights.
Held: The . .
Cited – Eagerpath Ltd v Edwards (HM Inspector of Taxes) CA 14-Dec-2000
Where the special commissioner had determined that the dispute had been concluded by agreement, the taxpayer was precluded from appealing that decision claiming an ‘error or mistke’ That issue was not one relating to the computation of profits in . .
Cited – Mallusk Cold Storage Ltd v Department of Finance and Personnel QBNI 29-Aug-2003
The first plaintiffs constructed premises which were rated as from 1 April 1987. Having taken advice, they appealed the rating assessment on the ground that the premises were industrial premises, and had a nil rateable value. The appeal was . .
Cited – D B Ramsden and Co Ltd v Nurdin and Peacock Plc and Another ChD 14-Sep-1998
The tenant overpaid rent, including a payment in May 1997 on advice that the payment would be recoverable following litigation establishing that it was an overpayment. The court later held that the payments in question were indeed overpayments. The . .

Cited by:

Cited – Autologic Holdings Plc and others v Commissioners of Inland Revenue HL 28-Jul-2005
Taxpayer companies challenged the way that the revenue restricted claims for group Corporation Tax relief for subsidiary companies in Europe. The issue was awaiting a decision of the European Court. The Revenue said that the claims now being made by . .
Appeal from – Deutsche Morgan Grenfell Group Plc v Inland Revenue and Another HL 25-Oct-2006
The tax payer had overpaid Advance Corporation Tax under an error of law. It sought repayment. The revenue contended that the claim was time barred.
Held: The claim was in restitution, and the limitation period began to run from the date when . .
Lists of cited by and citing cases may be incomplete.

Taxes Management, Equity, Limitation

Updated: 29 June 2022; Ref: scu.222200

Colin Dawson Windows Ltd v Borough Council of King’s Lynn and West Norfolk, Howard: CA 20 Jan 2005

In a claim for adverse possession, the court will readily infer the grant of a licence (so as to defeat an assertion that possession is adverse to the owner) during negotiations for the purchase or letting of land, where the negotiating purchaser or tenant is in occupation of the land concerned.

Judges:

Lord Justice Rix Lord Justice Johnathan Parker

Citations:

[2005] EWCA Civ 9

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Tower Hamlets v Barrett and Another CA 19-Jul-2005
The defendant tenants appealed an order for them to surrender possession of land which they claimed had been acquired by adverse possession. The buildings, including one which shared a party wall with the building owned by the defendants had been . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 28 June 2022; Ref: scu.221720

University of Sussex v Commissioners of Customs and Excise: ChD 10 Oct 2001

The taxpayer had made a considered decision not to deduct certain input VAT claims against its payments made over a long period of time up to 1996. They later concluded that they should have made the deductions, and claimed them. The Commissioners asserted that the claims were now statute barred.
Held: If the claim had been with section 80 and the regulations, it would now be time barred, but the non-exercise of a right to make a deduction, did not create a payment to the Commissioners of an amount which was not due to them. The claim was within the regulation, but not the section, and was not time barred.

Judges:

Neuberger J

Citations:

Gazette 01-Nov-2001

Statutes:

Value Added Tax Regulations 1995 (1995/2518) reg 29, Value Added Tax Act 1994 80 80(4)

Jurisdiction:

England and Wales

VAT, Limitation

Updated: 28 June 2022; Ref: scu.166724

Sweet v Owners of Blyth Lifeboat; The Edward Duke of Windsor: QBD 22 Jan 2002

A claim which was covered by the Act for damages for psychiatric injury arose not at the date of the accident, but from when the claimant first developed a recognised psychiatric injury. The two year period of limitation under the Act ran accordingly from the later date. Had parliament wished another result, it could easily have been provided for. Instead it made a clear distinction between the date of the accident, and the date of the injury resulting from it.

Judges:

Mr Justice Tomlinson

Citations:

Times 22-Feb-2002, Gazette 06-Mar-2002

Statutes:

Merchant Shipping Act 1995 190(3)(b)

Jurisdiction:

England and Wales

Limitation, Personal Injury, Transport

Updated: 28 June 2022; Ref: scu.167649

Thomas Cook (New Zealand) Limited v Inland Revenue: PC 10 Nov 2004

(New Zealand) Under the Act, certain companies had a duty to pay over to the Inland Revenue balance held on old and dormant accounts. They had issued travellers cheques which had never been presented. The revenue argued that the claim arose six months after the cheques were issued.
Held: The Act was unconcerned with Limitation Act issues. ‘The monies unclaimed under these Thomas Cook drafts were for the purposes of the 1971 Act owing and payable from their date of issue and it matters not whether the drafts could ever have been sued upon without a demand being made, whether before or after they became stale.’ The sums were unclaimed sums within the Act, and the appeal by the company was dismissed.

Judges:

Lord Bingham of Cornhill, Lord Clyde, Lord Millett, Lord Scott of Foscote, Lord Brown of Eaton-under-Heywood

Citations:

[2004] UKPC 53

Links:

Bailii, PC

Statutes:

Unclaimed Money Act 1971 4(1)(e)

Citing:

Cited – Joachimson v Swiss Bank Corporation CA 1921
The service of the order nisi binds the debt in the hands of the garnishee – that is, it creates a charge in favour of the judgment creditor. No cause of action for non payment arises in respect of money standing on a current account until the . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Limitation, Banking

Updated: 27 June 2022; Ref: scu.219590

Morgan EST (Scotland) Ltd v Hanson Concrete Products Ltd: TCC 22 Jul 2004

Citations:

[2004] EWHC 1778 (TCC)

Links:

Bailii

Statutes:

Limitation Act 1980 35

Jurisdiction:

England and Wales

Citing:

Appealed to – 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 by:

On appeal from – 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 . .
Lists of cited by and citing cases may be incomplete.

Contract, Limitation

Updated: 27 June 2022; Ref: scu.218883

Royal Borough of Kensington and Chelsea v Khan and Another: CA 16 Jan 2002

Judges:

Judge, Latham, Arden LJJ

Citations:

[2002] EWCA Civ 279

Links:

Bailii

Statutes:

Housing Act 1957 9(1A)

Jurisdiction:

England and Wales

Citing:

Cited – Swansea City Council v Glass CA 1992
The defendant had failed himself to repair his property, and the Local Authority carried out the work itself under the 1957 Act. It sought to recover the associated costs from the defendant, but he said that their claim was time barred, being more . .
Appeal from – Royal Borough of Kensington and Chelsea v Khan and Wellcome Trust ChD 8-Jun-2001
. .
Lists of cited by and citing cases may be incomplete.

Limitation, Landlord and Tenant, Housing

Updated: 23 June 2022; Ref: scu.216738

Lenderink-Woods v Zurich Assurance Ltd and Others: ChD 14 Dec 2015

The court was asked whether the two principal defendants, Zurich Assurance Limited and Zurich Advice Network Limited had demonstrated that it was fanciful for the Claimant to assert that she lacked the relevant knowledge to bring her present claim until after 10 December 2011.

Judges:

Norris J VC

Citations:

[2015] EWHC 3634 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Limitation, Professional Negligence

Updated: 23 June 2022; Ref: scu.557071

Braniff v Holland and Hannen and Cubitts (Southern) Ltd: CA 1969

Widgery LJ said: ‘Again, I think that it would only complicate matters if I attempted to deal with the facts, but one thing is perfectly clear, namely, that in the view of Megaw J. the fact that in certain cases under Order 20 rule 5, amendments were to be permitted although the statutory period had run did not mean that in general there was any relaxation of the principle formerly applying under Weldon v. Neal(4); I respectfully agree with that approach. I find it very difficult to think that, when specific exemption is made in paragraphs (3),(4) and (5) of Order 20 rule 5 in cases where the statute has run, it is then legitimate to interpret the rule as making similar provision available and similar excuses available in cases which are not within the precise terms of those three paragraphs.’

Judges:

Widgery LJ

Citations:

[1969] 1 WLR 1533

Jurisdiction:

England and Wales

Cited by:

Cited – 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.

Limitation, Litigation Practice

Updated: 23 June 2022; Ref: scu.415956

Jessamine Investment Co v Schwartz: CA 1978

The tenants Mr and Mrs Levy did not know their landlord Mrs David’s address and had no means of paying the rent.
Held: They had acquired the title by adverse possession against their mesne landlord (Mrs David) – but that nevertheless their statutory tenancy had continued against the freeholder.
Sir John Pennycuick said that: ‘I should be very reluctant to introduce a substantive distinction in the application of a provision of the Limitation Act to registered and unregistered land respectively, based upon what is plainly a conveyancing device designed to adapt that provision to the former class of land.’
Stephenson LJ said: ‘Decisions of this court prevent us from deciding that Mrs Schwartz was not, from the receipt of the last payment of rent by Mrs David, ‘a person in whose favour the period of limitation can run,’ and so not ‘in adverse possession’ within section 10 (1) of the Act of 1939 . . ‘

Judges:

Sir John Pennycuick, Stephenson LJ

Citations:

[1978] QB 264

Jurisdiction:

England and Wales

Landlord and Tenant, Limitation

Updated: 23 June 2022; Ref: scu.252434

Mutua and Others v The Foreign and Commonwealth Office: QBD 5 Oct 2012

Action for damages for personal injuries brought by five claimants in respect of alleged torts of assault and battery and negligence, for which it is said the defendant is liable as representing Her Majesty’s government in the United Kingdom. The injuries in respect of which the claims are made are said to have been deliberately inflicted on the claimants while they were in detention in Kenya, in varying periods between 1954 and 1959, by officers and soldiers of the Kenya police force, the Home Guard and/or the Kenya Regiment.

Judges:

Justice McCombe

Citations:

[2012] EWHC 2678 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Limitation, Torts – Other

Updated: 21 June 2022; Ref: scu.464788

Hughes v Griffin and Another: CA 1969

Possession of land is never adverse if it can be referred to a lawful title.

Judges:

Harman LJ, Russell LJ

Citations:

[1969) 1 WLR 23

Jurisdiction:

England and Wales

Cited by:

Cited – Roberts v Swangrove Estates Ltd and Another ChD 14-Mar-2007
The court heard preliminary applications in a case asserting acquisition of land by adverse possession, the land being parts of the foreshore of the Severn Estuary.
Held: A person may acquire title to part of the bed of a tidal river by . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 21 June 2022; Ref: scu.267383

Chatsworth Investments Ltd v Cussins (Contractors) Ltd: CA 1969

Judges:

Lord Denning MR

Citations:

[1969] 1 WLR 1

Jurisdiction:

England and Wales

Cited by:

Cited – 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.

Limitation, Litigation Practice

Updated: 18 June 2022; Ref: scu.415958

Ingall v Moran: CA 1944

The plaintiff had issued a writ in 1942 as administrator of his deceased son’s estate. However, he did not take out letters of administration until the November. It was said that proceedings instituted by an applicant who at the time had no standing to institute those proceedings were an incurable nullity. The limitation period had by then expired.
Held: The grant did not date back to the date of death, and it was too late to issue fresh proceedings or to amend.
Scott LJ said: ‘The cause of action arose, and was vested in the deceased lad, at the moment when he was injured, and the measure of his damages included fair compensation for such loss of expectation of life as was caused to him by the defendant’s tort. That chose in action was his. To it the common law maxim ‘Actio personalis moritur cum persona’ would have applied on his death but for the Act of 1934 which caused it to survive. If he had left a will, it would at the moment of his death automatically have vested in his executor. As he died intestate, it vested in the President of the Probate, Divorce and Admiralty Division, and remained in him until letters of administration were issued. Then – and not before – it would automatically pass from the President to the administrator. As the writ was issued on September 17, 1942, and there was no grant till November, it follows, necessarily, that at the time of writ issued the plaintiff had no shadow of title to his son’s surviving chose in action, in respect of which he purported to issue a writ, falsely (although no doubt quite innocently) alleging that he issued it as administrator. It purported to launch a representative action under Or. III, r. 4 – an action in which he confessed, first, that he was not suing in his own right, and, secondly, that he had no right in that action to prosecute any claim except in his representative capacity. The defendant could have demanded production of the non-existent letters of administration, and on the plaintiff’s failure to produce them the action would, on the defendant’s application, automatically have been struck out. Such an action was, in my opinion, incapable of conversion by amendment into a valid action – just as much so as if he had issued a personal writ claiming to be lawfully possessed of the estate of the deceased and had subsequently asked leave to amend by substituting a representative claim. It is true that when he got his title by the grant of administration he prima facie became entitled to sue, and could then have issued a new writ, but that was all. An application by him to treat the original writ of September 17 as retrospectively valid from that date would have been refused by the court, not only because it might prejudice existing rights of defence, but because it would not be permissible under the Rules of the Supreme Court or the Judicature Acts. The old writ was, in truth, incurably a nullity. It was born dead and could not be revived. If that conclusion is right it follows equally that the statement of claim was not delivered in any action recognized by the Rules of the Supreme Court, and all subsequent proceedings in the supposed action, including the judgment of the learned county court judge, were likewise nugatory, for, if the action and the pleadings were bad, there was no valid action before the learned judge to try and it is our duty to say so.’

Judges:

Scott LJ

Citations:

[1944] KB 160

Statutes:

Law Reform (Miscellaneous Provisions) Act 1934

Jurisdiction:

England and Wales

Cited by:

Cited – 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.

Limitation, Litigation Practice

Updated: 18 June 2022; Ref: scu.415952

WT Lamb and Sons v Rider: CA 1948

An interlocutory order is generally not regarded as final in the sense of barring a further application on the ground of res judicata: ‘Execution is essentially a matter of procedure – machinery which the Court can, subject to the rules from time to time in force, operate for the purpose of enforcing its judgments or orders.’ The right to sue on a judgment is a matter quite distinct from the right to issue execution under it.

Judges:

Scott LJ and Romer J

Citations:

[1948] 2 KB 331, [1948] 2 All ER 402

Statutes:

Limitation Act 1939

Jurisdiction:

England and Wales

Cited by:

Applied – National Westminster Bank v Powney CA 1990
The limitation period has nothing to do with the procedural machinery of enforcing a judgment when one was obtained. . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Limitation

Updated: 18 June 2022; Ref: scu.384112

Webster v Cooper and Burnett: CA 2000

Citations:

[2000] PNLR 240

Jurisdiction:

England and Wales

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Limitation

Updated: 16 June 2022; Ref: scu.200461

Mellors v Perry: CA 2003

The claimant had endured a childhood of renal problems with three kidney transplants but had no reason think that this was anything other than the consequence of her congenital disability.

Citations:

[2003] EWCA Civ 89

Statutes:

Limitation Act 1980

Jurisdiction:

England and Wales

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Limitation

Updated: 16 June 2022; Ref: scu.200462

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.

Citations:

[2001] EWCA Civ 1467, [2002] 1 BCLC 162

Links:

Bailii

Statutes:

Limitation Act 1981 21(1)

Jurisdiction:

England and Wales

Citing:

Application for leave – J J Harrison (Properties) Ltd v Harrison CA 16-Jul-2001
Application for permission to appeal, an application for permission to adduce fresh evidence on the appeal, and an application for an extension of time in which to appeal. . .

Cited by:

Cited – Newgate Stud Company, Newgate Stud Farm Llc v Penfold, Penfold Bloodstock Limited ChD 21-Dec-2004
The claimants sought damages from the defendant. He had been employed to manage their horse-racing activities, and it was alleged that he had made secret profits. The defendant denied any dishonesty, saying all matters were known to the deceased . .
Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Cited – Halton International Inc Another v Guernroy Ltd CA 27-Jun-2006
The parties had been involved in investing in an airline to secure its future, but it was now said that one party had broken the shareholders’ or voting agreement in not allowing further investments on a pari passu basis. The defendants argued that . .
Lists of cited by and citing cases may be incomplete.

Limitation, Company, Trusts

Updated: 13 June 2022; Ref: scu.201401

Phillips and Co (A Firm) v Bath Housing Co-Operative Ltd: CA 11 Dec 2012

The defendant appealed against a order finding it was liable for the fees claimed by its former solicitors. They had said that the claim for costs was barred by limitation.
Held: The defendant’s appeal failed; a solicitor’s claim for his costs, billed but not yet fixed by assessment or agreement, fell within the phrase ‘debt or other liquidated pecuniary claim’ in section 29(5)(a) of the Limitation Act 1980.

Judges:

Longmore, Lloyd, McFarlane LJJ

Citations:

[2012] EWCA Civ 1591, [2013] BPIR 102, [2013] 1 Costs LR 163, [2013] 2 All ER 475, [2013] 1 WLR 1479, [2013] 1 EG 48, [2012] WLR(D) 372, [2013] CP Rep 12

Links:

Bailii, WLRD

Statutes:

Limitation Act 1980 29(5)(1a)

Jurisdiction:

England and Wales

Limitation

Updated: 11 June 2022; Ref: scu.466960

Dungate v Dungate: CA 1965

A claim was made against the widow and administratrix of the deceased’s estate by his surviving brother. The widow wrote to the creditor: ‘Keep a check on totals and amounts I owe you and we will have account now and then . . .Sorry I cannot do you a cheque yet. Terribly short at the moment’ The court was asked whether this operated as an admission to extend the limitation period.
Held: An acknowledgment will be sufficient if the amount for which the debtor accepts legal liability can be ascertained by extrinsic evidence.

Judges:

Diplock LJ

Citations:

[1965] 1 WLR 1477

Jurisdiction:

England and Wales

Citing:

Applied – Spencer v Hemmerde HL 1922
A barrister borrowed 1,000 pounds for two months in 1910 but did not repay it. In 1915 the creditor pressed for payment and the debtor wrote to acknowledge the debt but asked for more time. The creditor ‘stayed his hand’. When proceedings were . .
Applied – Good v Parry CA 1963
A letter discussed first the writer’s proposed purchase of the house (offering andpound;1,350 subject to contract), and continued: ‘The question of outstanding rent can be settled as a separate agreement as soon as you present your account.’

Cited by:

Cited – Bradford and Bingley Plc v Rashid HL 12-Jul-2006
Disapplication of Without Prejudice Rules
The House was asked whether a letter sent during without prejudice negotiations which acknowledged a debt was admissible to restart the limitation period. An advice centre, acting for the borrower had written, in answer to a claim by the lender for . .
Lists of cited by and citing cases may be incomplete.

Limitation, Contract

Updated: 11 June 2022; Ref: scu.243121

Fenech v East London and City Health Authority: CA 2000

The court was asked how to set the time at which the claimant became fixed with knowledge of her injury. They ‘found it unnecessary to attempt any final reconciliation, because ‘on any sort of objective approach’ the claimant should have made inquiries long before she did. ‘

Judges:

Simon Brown LJ, Robert Walker LJ and Wilson J

Citations:

[2000] Lloyd’s Rep Med 35

Statutes:

Limitation Act 1980 14

Jurisdiction:

England and Wales

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Limitation

Updated: 11 June 2022; Ref: scu.200460

Wilkinson and Another v West Bromwich Building Society: CA 30 Jul 2004

The Society had repossessed and sold the mortgagors’ house in 1990. It knew then that there was a shortfall, but took no further recovery proceedings until 2002. What was the date from which the relevant limitation period began to run? Though the deed provided for payment of monthly instalments, it did not include an express covenant by the mortgagors to repay the whole of the balance of the advance on a specified date or in a specified event, such as default in the payment of the instalments.
Held: The omission af the clause gave rise to questions about how personal repayment obligations, which were not expressed, should be implied, either by way of covenant or contract, and the construction and application of ss5, 8 and 20 of the 1980 Act. Before the action, more than 12 years had elapsed from the accrual of the right of the Society to receive the balance of the mortgage debt secured by the legal charge. The claim for the shortfall was statute barred and the appeal allowed.

Judges:

Lord Justice Mummery, Lord Justice Jonathan Parker And Lord Justice Dyson

Citations:

[2004] EWCA Civ 1063, Times 05-Oct-2004

Links:

Bailii

Statutes:

Limitation Act 1980

Jurisdiction:

England and Wales

Citing:

Cited – Scottish Equitable Plc v Thompson and Another CA 6-Feb-2003
The mortgage deed, which was a second mortgage, did not contain any express covenant to repay the principal sum, but only for monthly interest instalments with no element of capital repayment, since the principal was to be paid from an insurance . .
Cited – Sutton v Sutton 1882
A mortgage deed contained an express covenant to repay on demand the amount advanced. The principal sum and interest were secured by a mortgage of real property. A demand for payment was made, but not satisfied. An action was brought on the covenant . .
Cited – Fearnside v Flint 1882
The court rejected the contention that the limitation period was 20 years for a case of an action on a collateral bond. The sum secured by a mortgage on land and also secured by a covenant in the deed is one and the same sum ‘so that when the right . .
Cited – Barnes v Glenton 1899
A contract debt had been then secured on land. The defendant pleaded limitation.
Held: The section, in not enlarging the period of recovery of a simple contract debt from 6 years to 12 years, was prohibitory and was enacted to limit existing . .
Cited – In re McHenry CA 1894
The court considered the effect of the Limitation Acts on the rights of a secured creditor where there was an express shortfall provision in a mortgage deed. There was an express promise by a mortgagor to pay the difference on realisation of the . .
Cited – 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 . .
Cited – Hopkinson and Others and Birmingham Mid-Shires Building Society v Tupper CA 30-Jan-1997
The plaintiffs appealed from an order striking out their claim for want of prosecution. The defendant’s property had been sold by the mortgagees, and the plaintiffs as assignees of their debt sought to recover the balance outstanding from the . .

Cited by:

Appeal from – 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 . .
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.

Limitation

Updated: 11 June 2022; Ref: scu.199634

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.

Citations:

[2004] EWCA Civ 920

Links:

Bailii

Statutes:

Limitation Act 1980 33

Jurisdiction:

England and Wales

Citing:

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 – 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 – 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 . .
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 . .
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 – Margolis v Imperial Tobacco Limited, Gallaher Limited, Hergall (In Liquidation) CA 6-Apr-2000
The court of appeal considered when it might interfere with the exercise of a judge’s discretion to extend the limitation period.
Held: The court ‘[will] not interfere with the judge’s discretion unless it was exercised upon wrong principles, . .
Lists of cited by and citing cases may be incomplete.

Limitation

Updated: 11 June 2022; Ref: scu.199583

Hashtroodi v Hancock: CA 27 May 2004

The claimant had issued proceedings in time, but then the limitation period expired before it was served, and in the meantime the limitation period had expired. The defendant appealed against an automatic extension of time for service granted to the claimant.
Held: The Rules should generally be interpreted without reference to case law under the old rules. The court had an unfettered discretion to extend time for service where there was good reason. A more calibrated approach was not necessary. If there was a good reason for the delay, and extension would normally be granted, but the court might well refuse one where the reason was weaker. This was a matter of principle, and the court declined further to expand upon it. In this case the reason was not good, and the extension should not have been granted.
Dyson LJ said: ‘It has often been said that a solicitor who leaves the issue of a claim form almost until the expiry of the limitation period, and then leaves service of the claim form until the expiry of the period of service is imminent courts disaster.’ and ‘It follows that this is a case where there is no reason for the failure to serve other than the incompetence of the claimant’s legal representatives. Although this is not an absolute bar, it is a powerful reason for refusing to grant an extension of time.’

Judges:

Lord Justice Thorpe Mr Justice Bennett Lord Justice Dyson

Citations:

[2004] EWCA Civ 652, Times 04-Jun-2004, [2004] 1 WLR 3206

Links:

Bailii

Statutes:

Civil Procedure Rules 7.5(2)

Jurisdiction:

England and Wales

Cited by:

Cited – Uphill v BRB (Residuary) Ltd CA 3-Feb-2005
The court considered an application for leave for a second appeal.
Held: Pursuant to the Practice Direction, the court certified that though this was an application for leave, it could be cited: ‘the reference in CPR 52.13(2)(a) to ‘an . .
Cited – Collier v Williams and others CA 25-Jan-2006
Various parties appealed refusal and grant of extensions of time for service of claim forms.
Held: The court gave detailed guidance. The three central issues were the proper construction of the rule, the question of whether the court could . .
Cited – Nelson and Another v Clearsprings (Management) Ltd CA 22-Sep-2006
The defendant did not appear at the trial and now appealed the judgment. The claim form and court papers had been served by post at the wrong address. The question was whether a defendant wanting to set aside a judgment was required to persuade the . .
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 – Venulum Property Investments Ltd v Space Architecture Ltd and Others TCC 22-May-2013
The claimant sought an extension of time to serve the Particulars of Claim. The solicitors said that they had misread the relevant Rules.
Held: The solicitors had acted on the basis of the former practice, but the rules had been substantially . .
Cited – Mitchell MP v News Group Newspapers Ltd CA 27-Nov-2013
(Practice Note) The claimant brought defamation proceedings against the defendant newspaper. His solicitors had failed to file his costs budget as required, and the claimant now appealed against an order under the new Rule 3.9, restricting very . .
Cited – Cardiff County Council v Lee (Flowers) CA 19-Oct-2016
The court was asked: ‘can the court proceed to validate a warrant of possession where a landlord who seeks to enforce his right to possession because of an alleged breach of the terms of a suspended possession order has not complied with CPR 83.2? ‘ . .
Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules, Limitation

Updated: 11 June 2022; Ref: scu.197949

Collin v Duke of Westminster: CA 1985

In 1975 the tenant sought to exercise his right to purchase the freehold reversion of his property. The landlord argued that the rent payable precluded any such entitlement. Under the law as then understood, the landlord’s contention appeared correct. The leaseholder proceeded no further. In 1980 the law was clarified so as to indicate that he was so entitled, and in 1981 he sought to proceed with his claim. The landlord’s contention that he had abandoned it failed at first instance.
Held: The tenant’s appeal failed. Oliver LJ: ‘As regards abandonment [the judge] held – and in my judgment he was clearly right in this – that in order to succeed the trustees had to show either some reliance and change of position amounting to an estoppel (of which there was no suggestion) or what amounted in effect to a contract for mutual release. Quite clearly there was no question of an express contract and what he had, therefore, to look for was whether there was material from which mutual promises could be implied. On the facts, he found himself unable to find any mutual release but, perhaps even more importantly, he held that the Act of 1967 and the regulations provided, as it were, a complete statutory code which regulated exclusively how the statutory contract of sale was to be either completed or discharged and that there was no room for the application of the common law concept of inferred abandonment by mutual consent.
With respect to the judge, I doubt whether this latter conclusion can be right. . . As he rightly pointed out there is, in the law of contract, no room for a concept of unilateral abandonment. What the court has to look for is . . . material from which there can be inferred mutual releases or mutual promises not to proceed. In other words . . there has to be established, if only by inference, a fresh contract which has the effect of dissolving the relationship originally entered into by the parties and upon which one party still seeks to rely. Now tenants who are entitled to enfranchise under the Act of 1967 are not permitted to contract out of their entitlement, but there is nothing in the Act which prevents them, once their right of enfranchisement has accrued, from releasing contractually the immediate right of enfranchisement which they have acquired by serving a notice under the Act.’ The court agreed with the judge’s alternative conclusion that on the facts of the case there was no material from which mutual releases could be inferred.
The essence of a specialty is a covenant under seal or an obligation imposed by statute.

Judges:

Oliver LJ, May LJ and Sir Roger Ormrod

Citations:

[1985] 1 QB 581

Statutes:

Leasehold Reform Act 1967, Limitation Act 1980

Jurisdiction:

England and Wales

Cited by:

Cited – Martin v Medina Housing Association Ltd CA 31-Mar-2006
The former tenant had set out to buy the council house, but had written to say that she did not intend to go ahead. Her son who had taken over the tenancy after her death now sought, twelve years later, to require the authority to proceed at that . .
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 . .
Cited – Nolan v Wright ChD 26-Feb-2009
The defendant sought to re-open the question of whether the charge under which he might otherwise be liable was an extortionate credit bargain. The creditor said that that plea was time barred. The defendant argued that a finding that the agreement . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Contract, Limitation

Updated: 11 June 2022; Ref: scu.242431

Baker v Ollard and Bentley: CA 12 May 1982

The plaintiff and a Mr and Mrs Bodman agreed to buy a house. The plaintiff intended to live on the first floor and the Bodmans on the ground floor. The solicitor should have advised them to convey the freehold into their joint names and then to grant separate long leases of the first floor to the plaintiff and the ground floor to the Bodmans respectively. Instead he simply had the house conveyed into their joint names on trust for sale. The plaintiff obtained neither security of tenure nor any interest which she could separately dispose of and, when subsequently the Bodmans decided to move out and sell the house by enforcing the trust for sale, she had to expend further money purchasing the freehold.
Held: Her cause of action accrued at the time of the original transaction rather than at the later time when the Bodmans decided to enforce the trust for sale. Templeman LJ said: ‘Damages were suffered on that date because the plaintiff did not receive the long lease and joint tenancy which the solicitors should have secured for her. She secured instead some other different interest. She has suffered damage because she did not get what she should have got.’ The court did not compare the value of the interest that the claimant in fact received with the amount that she paid for it. The mere fact that ‘she did not get what she should have got’ was sufficient to amount to damage.

Judges:

Templeman LJ

Citations:

[1982] 126 SJ 593, [1982] CLY 1845, CA Transcript 155 of 1982

Jurisdiction:

England and Wales

Citing:

Cited – Forster v Outred and Co CA 1981
A mother signed a mortgage deed charging her property to H as security for a loan to her son. She claimed the solicitor had been negligent in his advice. The solicitor replied that the claim was out of time. The loss accrued not when demand for . .

Cited by:

Cited – Daniels v Thompson CA 18-Mar-2004
The executor brought an action against the solicitor who had advised his client in connection with the transfer of her house in which she was to continue to live, saying he should have advised her that the gift would not protect her from Inheritance . .
Applied – D W Moore and Co Ltd v Ferrier CA 1988
The company took in a new director and shareholder, and relied upon their solicitors to draft a covenant to restrain him competing within a set time of leaving the company. The covenant turned out to be ineffective. The defendant solicitors replied . .
Cited – DW Moore and Co Ltd v Ferrier CA 1988
A solicitor was instructed to prepare an agreement providing for the introduction of a new working director into an insurance broking business carried on by a company. His instructions called for the new director to enter into a restrictive covenant . .
Cited – Tabarrok v E D C Lord and Co (A Firm) CA 14-Feb-1997
The appellant wanted to open a pizza restaurant. He and his partners acquired a company for the purpose, which was to take a lease of premises. They sought advice from the defendants who, they said, failed to advise them of the need to be aware of . .
Cited – Knapp v Ecclesiastical Insurance Group Plc and Another CA 30-Oct-1997
A claim in negligence was brought against insurance brokers for failing to advise the claimant of certain matters with the result that an insurance policy entered into by the claimant was voidable for non-disclosure.
Held: The claimant . .
Cited – Pegasus Management Holdings Sca and Another v Ernst and Young (A Firm) and Another ChD 11-Nov-2008
The claimants alleged professional negligence in advice given by the defendant on a share purchase, saying that it should have been structured to reduce Capital Gains Tax. The defendants denied negligence and said the claim was statute barred.
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Limitation

Updated: 10 June 2022; Ref: scu.196069

DFS Furniture Company Plc v Commissioners of Customs and Excise: CA 16 Mar 2004

The taxpayers said that the Commissioners’ assessment to VAT was out of time, and appealed a finding that it was not. They said that time should run from the point at which the Commissioners knew the facts upon which the assessment was based. The Commissioners argued that time could not begin to run until the decision in the case of Primback upon which the assessment was based.
Held: The decision of a court did not count as ‘facts’ for limitation purposes. Use of the phrase ‘evidence of facts’ emphasised that interpretation. The assessments were out of time.

Judges:

Lord Justice May The Hon Mr Justice Parker Lord Phillips Of Worth Matravers, Mr

Citations:

[2004] EWCA Civ 243, Times 19-Mar-2004, Gazette 08-Apr-2004

Links:

Bailii

Statutes:

Value Added Tax Act 1994 78A(2) 80(4A)

Jurisdiction:

England and Wales

Citing:

Appeal from – Commissioners of Customs and Excise v DFS Furniture Company Plc ChD 16-Apr-2003
The Commissioners had been ordered to repay VAT to the taxpayer. A subsequent decision of the ECJ meant that the sum should have been repaid to the Commissioners. The taxpayer now alleged that the commissioners were out of the two year maximum time . .
Cited – Regina v Commissioners of Customs and Excise, ex Parte Kay and Co; Regina v Same, ex Parte Similar CA 10-Dec-1996
The commissioners had no power to impose time limits on retrospective refund claims. . .
Cited – Primback Ltd v Commissioners of Customs and Excise ECJ 15-May-2001
A company made arrangements for finance for its customers to purchase products at an apparent zero rate of interest. In fact the finance company deducted an undisclosed commission before forwarding payment to the shop. The shop wanted to pay VAT . .
Cited – Marks and Spencer plc v Commissioners of Customs and Excise ECJ 11-Jul-2002
The claimant challenged the reduction of the limitation period from six years to three for the reclaiming of overpaid VAT with immediate effect, depriving it of the opportunity to recover sums paid in excess. The company sold vouchers. It paid VAT . .
Cited – Kleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
Cited – Commissioners of Customs and Excise v Croydon Hotel and Leisure Co Ltd CA 8-Aug-1996
The limitation period on recovery by Commissioners runs from date of return, not the accounting period. . .
Lists of cited by and citing cases may be incomplete.

VAT, Limitation

Updated: 10 June 2022; Ref: scu.194584

Daniels v Thompson: CA 18 Mar 2004

The executor brought an action against the solicitor who had advised his client in connection with the transfer of her house in which she was to continue to live, saying he should have advised her that the gift would not protect her from Inheritance Tax liability because she continued to live in the house.
Held: In this case the claim was statute barred in any event, but had the claim continued, it would have been asked when the loss occurred, and it would have been at the date of the gift, and not at any later date. Accordingly there would have been no damages to claim as by the executor, and the claim would have also failed for this reason. The court considered ‘inadequate transactions’: ‘There have been several cases where a negligent person (usually a solicitor) failed adequately to protect the client’s interests and/or procured less valuable rights for the client than should have been procured and/or did not secure for the client that to which he or she was entitled. In each of these cases the court has held that the client suffered loss when what I shall for convenience call ‘the inadequate transaction’ was concluded, and not at the later date when the risk against which the solicitor had failed to provide protection eventuated.’

Judges:

The Hon Mr Justice Gray Lord Justice Dyson Lord Justice Carnwath

Citations:

[2004] EWCA Civ 307, Times 23-Mar-2004, [2007] Lloyd’s Rep PN 16

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Forster v Outred and Co CA 1981
A mother signed a mortgage deed charging her property to H as security for a loan to her son. She claimed the solicitor had been negligent in his advice. The solicitor replied that the claim was out of time. The loss accrued not when demand for . .
Cited – Knapp v Ecclesiastical Insurance Group Plc and Another CA 30-Oct-1997
A claim in negligence was brought against insurance brokers for failing to advise the claimant of certain matters with the result that an insurance policy entered into by the claimant was voidable for non-disclosure.
Held: The claimant . .
Cited – Bell v Peter Browne and Co CA 1990
Mr Bell asked his solicitors to transfer the matrimonial home into his wife’s sole name. He was to receive a one-sixth interest of the gross proceeds on a sale. His interests were to be protected by a trust deed or mortgage. The solicitor drafted . .
Cited – Milton v Walker and Stanger 1981
The plaintiff instructed her solicitor to prepare documents and advise on a gift from P’s uncle to P and her cousin W in the proportions 2/3:1/3. P and W agreed that, should the farm be sold, the costs and capital gains tax (CGT) arising there from . .
Cited – D W Moore and Co Ltd v Ferrier CA 1988
The company took in a new director and shareholder, and relied upon their solicitors to draft a covenant to restrain him competing within a set time of leaving the company. The covenant turned out to be ineffective. The defendant solicitors replied . .
Cited – Baker v Ollard and Bentley CA 12-May-1982
The plaintiff and a Mr and Mrs Bodman agreed to buy a house. The plaintiff intended to live on the first floor and the Bodmans on the ground floor. The solicitor should have advised them to convey the freehold into their joint names and then to . .
Cited – White and Another v Jones and Another HL 16-Feb-1995
Will Drafter liable in Negligence to Beneficiary
A solicitor drawing a will may be liable in negligence to a potential beneficiary, having unduly delayed in the drawing of the will. The Hedley Byrne principle was ‘founded upon an assumption of responsibility.’ Obligations may occasionally arise . .
Cited – Macaulay and Farley v Premium Life Assurance Co Ltd 29-Apr-1999
Executors claimed as damages the amount of Inheritance Tax which became payable on death as a result of the negligent advice given to the deceased by the defendant.
Held: The damage claimed (liability for inheritance tax) was not suffered . .
Cited – Cobbold v London Borough of Greenwich CA 9-Aug-1999
The tenant had sought an order against the council landlord for failure to repair her dwelling. The defendant appealed refusal of leave to amend the pleadings in anticipation of the trial, now due to start on the following day.
Held: Leave was . .
Cited – Robinson v Fernsby, Scott-Kilvert CA 19-Dec-2003
The judge had drafted his judgment and sent the drafts to the parties for comment. He then received additional written representations from one party, from which he realised that he had made an error, and issued a corrected judgment which a . .

Cited by:

Cited – The Law Society v Sephton and Co and others CA 13-Dec-2004
The Society appealed dismissal for limitation of its claim against the defendant firm of accountants arising from alleged fraud in approval of a solicitor’s accounts.
Held: The liability did not arise until the Society decided to make . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Limitation

Updated: 10 June 2022; Ref: scu.194571

Haward and Others v Fawcetts (A Firm) and Another: CA 11 Mar 2004

The court looked at the date from which the limitation period ran in an action for professional negligence: ‘It is clear from the words of the section itself . . that it is concerned with knowledge of facts, as opposed to knowledge of matters of law. In particular, subsection (9) specifically excludes knowledge that the defendant acted negligently.’ (Jonathan Parker L.J)

Judges:

Mr Justice Charles Lord Justice Potter Lord Justice Parker

Citations:

[2004] EWCA Civ 240

Links:

Bailii

Statutes:

Limitation Act 1980

Jurisdiction:

England and Wales

Cited by:

Cited – Denekamp v Denekamp CA 8-Dec-2005
Appeal against striking out of claim and civil restraint order. . .
Appeal from – 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 . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Limitation

Updated: 10 June 2022; Ref: scu.194410

Glaister v Greenwood: ChD 26 Feb 2001

Judges:

Collins J

Citations:

[2001] EWHC Ch 453, [2001] PNLR 602

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Limitation

Updated: 10 June 2022; Ref: scu.135552

Williams v Fanshaw Porter and Hazelhurst: CA 18 Feb 2004

The claimant alleged that her solicitors had concealed from her the fact that they had entered a consent order which dismissed her claim for medical negligence.
Held: The solicitor had failed to inform the client that her original claim against a doctor had been struck out although he was aware at the time that it was his duty to do so. The result was to postpone commencement of the limitation period against the claimant. The relationship of solicitor and client created a particular duty of disclosure.
Park J said: ‘ii) Although the concealed fact must have been relevant to the right of action, the paragraph does not say, and in my judgment does not require, that the defendant must have known that the fact was relevant to the right of action. In most cases where s.32(1)(b) applies the defendant probably will have known that the fact or facts which he concealed were relevant, but that is not essential. All that is essential is that the fact must actually have been relevant, whether the defendant knew that or not. The paragraph does of course require that the fact was one which the defendant knew, because otherwise he could not have concealed it. But it is not necessary in addition that the defendant knew that the fact was relevant to the claimant’s right of action. iv) The requirement is that the fact must be ‘deliberately concealed’. It is, I think, plain that, for concealment to be deliberate, the defendant must have considered whether to inform the claimant of the fact and decided not to. I would go further and accept that the fact which he decides not to disclose either must be one which it was his duty to disclose, or must at least be one which he would ordinarily have disclosed in the normal course of his relationship with the claimant, but in the case of which he consciously decided to depart from what he would normally have done and to keep quiet about it.’ Some of the claims succeeded and other failed.

Judges:

Mr Justice Brooke Lord Justice Mance Mr Justice Park

Citations:

[2004] EWCA Civ 157, Times 27-Feb-2004, Gazette 25-Mar-2004, [2004] PNLR 544, [2004] 1 WLR 3185

Links:

Bailii

Statutes:

Limitation Act 1980 32(1)(b)

Jurisdiction:

England and Wales

Citing:

Cited – Cave v Robinson Jarvis and Rolf (a Firm) HL 25-Apr-2002
An action for negligence against a solicitor was defended by saying that the claim was out of time. The claimant responded that the solicitor had not told him of the circumstances which would lead to the claim, and that deliberate concealment should . .
Cited – Sheldon and Others v R H M Outhwaite (Underwriting Agencies) Ltd and Others HL 5-May-1995
The limitation period did not run whilst relevant facts were deliberately concealed after the damage had been concealed. Section 32 could apply where the concealment of the relevant fact took place after the event as well as at the time of it. The . .

Cited by:

Cited – Newgate Stud Company, Newgate Stud Farm Llc v Penfold, Penfold Bloodstock Limited ChD 21-Dec-2004
The claimants sought damages from the defendant. He had been employed to manage their horse-racing activities, and it was alleged that he had made secret profits. The defendant denied any dishonesty, saying all matters were known to the deceased . .
Cited – Taylor Aston Ltd v AON Ltd ComC 26-Jul-2005
The parties entered into a contract to support attempts to provide insurance in Khazakstan. The defendants argued limitation, the claimants argued for concealment.
Held: Deliberate concealment for limitation purposes meant just that. That had . .
Cited – Mortgage Express v Abensons Solicitors (A Firm) ChD 20-Apr-2012
The claimant lender sought damages against the defendant solicitors alleging negligence and breach of fiduciary duty by them in acting for them on mortgage advances. The defendants now argued that the allowance of an amendment to add the allegation . .
Lists of cited by and citing cases may be incomplete.

Limitation, Professional Negligence

Updated: 09 June 2022; Ref: scu.193640

ED and F Man (Sugar) v Haryanto: CA 17 Jul 1996

An action may be brought on a judgment to enforce it, if it is still within the relevant limitation period: ‘Suing on a judgment, at all events for the first time, cannot be said to defeat legislative policy. That is plain from the very language of section 24 . . Here the second action was, of course, brought within that limitation period. There are two relevant ways of enforcing a judgment: by execution and by action. It is plain that the Court will not give judgment in an action on a judgment unless satisfied that the action does not constitute an abuse of process, having regard, amongst other things, to the availability of execution. It would, in my judgment, be for a defendant (or a person in the position of defendant) to show that a second action did constitute an abuse of process; the primary obligation is not that of a plaintiff to justify the bringing of further proceedings. Because, in the event of abuse of process, the Court may intervene and refrain from giving judgment in the second action, it cannot be said that a second action proceeds without judicial scrutiny, even if the second action is a matter of right and not discretion. Of course, it favoured the applicant in the present proceedings that it was a matter of discretion, even though, when he came to exercise it, he exercised it against the applicant. The authorities to which our attention has been drawn show that the Courts have always held the bringing of the second action to be a matter of right, and in my judgment that is what it is . . ‘

Judges:

Leggatt, Morritt and Brooke LJJ

Citations:

Times 09-Aug-1996, Unreported, 17 July 1996

Jurisdiction:

England and Wales

Citing:

Appeal from – E D and F Man (Sugar) Ltd v Haryanto ChD 24-Nov-1995
Enforcement by judgment on co-ordinate jurisdiction judgment is discretionary: ‘ . . having regard to the decision in Re A Debtor [1977] Ch 310 that s 24(1) of the 1980 Act bars after six years rights of action including proceedings in the form of . .

Cited by:

Appealed to – E D and F Man (Sugar) Ltd v Haryanto ChD 24-Nov-1995
Enforcement by judgment on co-ordinate jurisdiction judgment is discretionary: ‘ . . having regard to the decision in Re A Debtor [1977] Ch 310 that s 24(1) of the 1980 Act bars after six years rights of action including proceedings in the form of . .
Cited – Bennett v The Governor and Company of the Bank of Scotland CA 23-Jul-2004
The bank had obtained judgment against the defendant, but had failed to act upon it, and the judgment became unenforceable. It then began later proceedings on the original debt (still within the applicable limitation period). The defendant said this . .
Lists of cited by and citing cases may be incomplete.

Limitation

Updated: 09 June 2022; Ref: scu.199355

Lambie v Toffolo Jackson Limited (In Liq) and Another: OHCS 11 Nov 2003

Judges:

Lord Macfadyen And Lord President And Lord Kirkwood

Citations:

[2003] ScotCS 282, 2003 SLT 1415

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SCS 8-Jan-2010
The claimant sought to challenge the validity of the 2009 Act by judicial review. The Act would make their insured and themselves liable to very substantial unanticipated claims for damages for pleural plaques which would not previousl or otherwise . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Limitation

Updated: 08 June 2022; Ref: scu.190807

Paradise Beach and Transportation Co Ltd v Price-Robinson: PC 1968

(Bahamas) The provisions in the Acts of 1833 and 1874 did away with the earlier doctrine of ‘non adverse’ possession, under which, in the absence of an ouster, the possession of one joint tenant or tenant in common was regarded as the possession of the others, so that time did not run against those who were not in possession.

Judges:

Lord Upjohn

Citations:

[1968] AC 1072, [1968] UKPC 1, [1968] 2 WLR 873, [1968] 1 All ER 530

Links:

Bailii

Statutes:

Real Property Limitation Acts of 1833 12, Real Property Limitation Acts of 1874 1

Jurisdiction:

Commonwealth

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 08 June 2022; Ref: scu.190222

McDonnell v Congregation of Christian Brothers Trustees (Formerly Irish Christian Brothers) and others: HL 4 Dec 2003

In 2000, the claimant sought damages for sexual abuse from before 1951. The issue was as to whether the limitation law which applied was that as at the date of the incidents, or that which applied as at the date when he would be deemed uner the modern law to have acquired knowledge of the possibility of claiming.
Held: Though the 1963 Act, consolidated in the 1980 Act, was framed to remedy the injustice of Cartledge, it did not extend the law to override an accrued statutory time bar to pre-1954 six-year claims: ‘an accrued right to plead a time bar, which is acquired after the lapse of the statutory period, is in every sense a right, even though it arises under an Act which is procedural. It is a right which is not to be taken away by conferring on the statute a retrospective operation, unless such a construction is unavoidable.’ The decision in Arnold was not so wrong as to allow the House to depart from it. The claim failed.

Judges:

Lord Bingham of Cornhill Lord Nicholls of Birkenhead Lord Steyn Lord Hobhouse of Woodborough Lord Rodger of Earlsferry

Citations:

[2003] UKHL 63, Times 05-Dec-2003, [2004] 1 AC 1101

Links:

House of Lords, Bailii

Statutes:

Limitation Act 1939 2(1) 22

Jurisdiction:

England and Wales

Citing:

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 – Knipe v British Railways Board CA 1972
The plaintiff was injured in 1948, but it later became more serious, and in 1970, having obtained leave under the 1963 Act, he issued proceedings. The defendants argued that his claim was statute-barred under section 2(1). The defendant appealed. . .
Cited – Arnold v Central Electricity Generating Board HL 22-Oct-1987
The plaintiff was widow and administratrix of the estate of her deceased husband. He had worked from April 1938 to April 1943 for a predecessor to the CEGB. He had been exposed to asbestos dust as a result of his employer’s negligence and breach of . .
Cited – Yew Bon Tew v Kenderaan Bas Mara PC 7-Oct-1982
(Malaysia) In 1972 the appellants were injured by the respondent’s bus. At that time the local limitation period was 12 months. In 1974 the limitation period became three years. The appellants issued a writ in 1975. To succeed they would have to sue . .
Applied – Fitzleet Estates Ltd v Cherry HL 9-Nov-1977
Income tax – Schedule D, Cases III and VI – Payments of interest and ground rent incurred when property was being developed – Whether capitalised or paid out of profits or gains brought into charge to tax – Income Tax Act 1952 (15 and 16 Geo. 6 and . .
Mentioned – Stubbings v Webb and Another HL 10-Feb-1993
Sexual Assault is not an Act of Negligence
In claims for damages for child abuse at a children’s home made out of the six year time limit time were effectively time barred, with no discretion for the court to extend that limit. The damage occurred at the time when the child left the home. A . .

Cited by:

Cited – Regina on the Application of G v Westminster City Council QBD 30-Jan-2004
The child sought review of the respondent’s decision not to provide education other than at one school. He had been suspended, but his father refused to allow him to return complaining of the effects of bullying.
Held: The condition of being . .
Cited – King v The Serious Fraud Office CACD 18-Mar-2008
Restraint and Disclosure orders had been made on without notice applications at the request of South Africa. The applicant appealed a refusal of their discharge.
Held: Such orders did not apply to the applicant’s assets in Scotland. The orders . .
Lists of cited by and citing cases may be incomplete.

Limitation, Personal Injury

Updated: 08 June 2022; Ref: scu.188434

Agnew v Scott Lithgow J G Kincaid Ltd Kvaerner Govan Limited: SCS 1 Apr 2003

Common law claim against three of pursuer’s former employers for the loss, injury and damage said to have been suffered as a result of his working with vibrating tools in the course of his employment with them.

Judges:

Lord Abernethy and Lady Cosgrove and Lord Marnoch

Citations:

[2003] ScotCS 94, 2003 SCLR 426

Links:

Bailii

Jurisdiction:

Scotland

Personal Injury, Limitation

Updated: 07 June 2022; Ref: scu.183971

Adams v Bracknell Forest Borough Council: CA 6 May 2003

The claimant sought damages from the defendant for having failed to diagnose his dysexia, resulting in educational failure. The respondent argued a reasonable peson would have sought help earlier. The council appealed a refusal to strike out of the claim.
Held: Given undiagnosed dysexia, it was unlikely that he would seek help. The fact that the condition also resulted in a low self esteem should properly be taken into account in deciding whether he should have realised his cause of action. Each case fell to be decided on its own facts, but the claimant’s state of mind precluded a simple question of whether he should have sought damages earlier.

Judges:

Peter Gibson, Tuckey, Keene LJJ

Citations:

Times 14-May-2003, [2003] EWCA Civ 706, Gazette 03-Jul-2003

Links:

Bailii

Statutes:

Limitation Act 1980 14

Jurisdiction:

England and Wales

Citing:

Cited – Robinson v St Helens Metropolitan Borough Council CA 25-Jul-2002
The claimant sought an extension of the limitation period to allow him to pursue an action. He sought damages for negligence against his former school which had failed to diagnose and treat his dyslexia.
Held: His appeal was denied. The claim . .

Cited by:

Appeal from – 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 . .
Lists of cited by and citing cases may be incomplete.

Limitation, Personal Injury

Updated: 07 June 2022; Ref: scu.182212

Sage v Secretary of State for the Environment, Transport and the Regions and others: HL 10 Apr 2003

The appellant had challenged an enforcement notice requiring him to pull down a partially built house. The issue was when the four year limitation period had commenced. Did the four year limitation period commence when the works were complete, or when the building was complete?
Held: The inspector had found the building to be a dwelling in the course of construction. Further works might not affect the exterior, but would not fall within section 55(2)(a) until the building works had been completed. The breach of planning control would not have been exhausted but would be continuing.

Judges:

Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Hobhouse of Woodborough, Lord Scott of Foscote, Lord Rodger of Earlsferry

Citations:

[2003] UKHL 22, Times 11-Apr-2003, [2003] NPC 51, [2003] 16 EGCS 102, [2003] 2 All ER 689, [2003] JPL 1299, [2003] 1 WLR 983, [2003] 2 P and CR 26

Links:

House of Lords, Bailii

Statutes:

Town and Country Planning Act 1990 55(2)(a) 171(B)

Jurisdiction:

England and Wales

Citing:

Cited – Belmont Farm Ltd v MHLG 1962
. .
Cited – Mckay and Walker v Secretary of State for the Environment QBD 1989
The court considered a test as to whether a building was constructed for human habitation and not for agricultural use, using its physical layout and appearance. . .
Cited – Ewen Developments Ltd v Secretary of State for the Environment CA 1980
The court upheld an enforcement notice requiring that the whole of an embankment be removed. . .
Cited – Somak Travel v London Borough of Brent 1987
There had been an unauthorised change of use case from residential to commercial use. The notice not only required the cessation of the commercial use but also the removal of an internal staircase which had been put in to facilitate that use though . .
Cited – Howes v Secretary of State for the Environment QBD 1984
The inspector had directed himself that the removal of a hedge and the creation of an access was ‘a continuous operation and each step in the work prolong[ed] the period for serving the enforcement notice as regards every earlier step of the . .

Cited by:

Distinguished – Fidler v Secretary of State for Communities and Local Government and Reigate and Banstead Borough Council Admn 3-Feb-2010
The landowner had concealed his new building (a mock Tudor castle) under straw bales 40′ high, and now appealed against dismissal of his challenge to enforcement orders. He said that the building had been substantially completed more than four years . .
Cited – Secretary of State for Communities and Local Government and Another v Welwyn Hatfield Borough Council SC 6-Apr-2011
The land-owner had planning permission to erect a barn, conditional on its use for agricultural purposes. He built inside it a house and lived there from 2002. In 2006. He then applied for a certificate of lawful use. The inspector allowed it, and . .
Lists of cited by and citing cases may be incomplete.

Planning, Limitation

Updated: 07 June 2022; Ref: scu.180699

Hatton v Messrs Chafes (A Firm): CA 13 Mar 2003

The defendant firm appealed against a refusal to strike out the claimant’s claim for professional negligence, asserting that the judge should have considered the limitation issue in the light of Khan v Falvey.
Held: By the time that the negligence arose, the first claim was worthless. The claimant knew of the negligence of his solicitors at that time, both as to the existence of any damage, and of the possibility of a claim. The court summarised the principles as follows: ‘(i) A cause of action in negligence does not arise until the claimant suffers damage as a result of the defendant’s negligent act or omission. (ii) The damage must be ‘real’ as distinct from minimal: Cartledge v Jopling [1963] AC 758 per Lord Reid . . and Lord Evershed MR . . (iii) Actual damage is any detriment, liability or loss capable of assessment in money terms and includes liability which may arise on a contingency: Forsted v Outred [1982] 1 WLR 86 per Stephenson LJ at 94, approved by the House of Lords in Nykredit Mortgage Bank plc v Edward Erdman Group Ltd No 2 [1995] 1 WLR 1627, per Lord Nicholls (with whom the other members of the appellate committee agreed) . . (iv) The loss must be relevant in the sense that it falls within the measure of damages applicable to the wrong in question: Nykredit at 1630F. (Propositions (i) to (iv) were confirmed by Sir Murray Stuart-Smith in Khan v Falvey [2002] EWCA Civ 400, [2002] PNLR 28, at paragraphs 11 and 12.)
(v) A claimant cannot defeat the statute of limitations by claiming only in respect of damage which occurs within the limitation period if he has suffered damage from the same wrongful act outside that period: Khan v Falvey . . following Knapp v Ecclesiastical Insurance Group Plc [1998] PNLR 172 per Hobhouse LJ . .’ The claim now was time barred. Appeal allowed.
Clarke LJ said: ‘Khan v Falvey is authority for the proposition that it is not a condition precedent for any claim against defendant solicitors that the underlying action should have been struck out. That is because the claimant may have suffered relevant damage before an order is made striking the action out. The question remains by what criteria to judge when that moment arises. Although that question was discussed in the judgments in Khan v Falvey, as I read them it was not necessary to decide it for the purposes of the decision in that case. Nor is it to my mind necessary for it to be determined for the purposes of the decision in this appeal.
It seems to me that there are three possibilities as to when damage is caused by negligence in such a case so that the claimant’s cause of action has accrued and time begins to run against him. The first is when the claimant has no arguable basis for avoiding the claim being struck out, the second is when it is more probable than not that the claim will be struck out and the third is when there is a real (as opposed to a minimal or fanciful) risk of the claim being struck out. The reason why it is not necessary to determine which of those possibilities is correct here is that, in my opinion, this is an example of the first class of case on the facts.
As I read it, Khan v Falvey was also an example of such a case. This can be seen with particular clarity in the judgment of Schiemann LJ. He noted in paragraphs 65 and 66 that in both Case 1 and Case 3 (which were the first two of the cases being considered) the claimant had pleaded that by a certain date his claim (or in one case counterclaim) was ‘amenable to be struck out for want of prosecution’.’
Sir Anthony Evans agreed that at the relevant time, the action was already doomed to fail, and added: ‘This is clear, in my judgment, because any attempt to proceed with the action against the accountants in October 1994 would have been met with an application to dismiss the claim for want of prosecution, and the application would certainly have succeeded. The action was, on any view, ‘amenable to striking out.’ The fact that the striking out order was not made until June 1999, after an even more belated attempt to revive the proceedings in January 1999, does not alter the circumstances as they were in 1994.
It is unnecessary, therefore, in the present case to define the precise nature of the evidential burden which rests upon the claimant in cases of this sort. Nevertheless, an issue does arise, which was argued before us. Is it sufficient to prove that there was some chance – a ‘real’ or ‘substantial’ chance – that the claim would have been struck out at the relevant date, if an application had been made? Or must the claimant prove something more – perhaps, that an application would probably have succeeded, if one had been made?
The former view receives some support from statements which are found in the authorities to the effect that the relevant kind of loss is the diminished value of the claim. Some diminution occurs when a striking out application would have some prospect of success, though falling short of 50 per cent. Yet in such a case it could not be said that the application would probably succeed or that the claim was probably worthless.’

Judges:

Lord Justice Peter Gibson Lord Justice Clarke Sir Anthony Evans

Citations:

[2003] EWCA Civ 341, [2003] PNLR 24, [2007] Lloyd’s Rep PN 15

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Khan v R M Falvey and Co (a Firm) CA 22-Mar-2002
The claimant sought damages from his former solicitors for failing to act to avoid his case being struck out. The second action was itself delayed, and the defendants asserted that the cause of action occurred not when his claim was actually struck . .
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 – Forster v Outred and Co CA 1981
A mother signed a mortgage deed charging her property to H as security for a loan to her son. She claimed the solicitor had been negligent in his advice. The solicitor replied that the claim was out of time. The loss accrued not when demand for . .
Cited – Nykredit Mortgage Bank Plc v Edward Erdman Group Ltd (No 2) HL 27-Nov-1997
A surveyor’s negligent valuation had led to the plaintiff obtaining what turned out to be inadequate security for his loan. A cause of action against a valuer for his negligent valuation arises when a relevant and measurable loss is first recorded. . .
Cited – Knapp v Ecclesiastical Insurance Group Plc and Another CA 30-Oct-1997
A claim in negligence was brought against insurance brokers for failing to advise the claimant of certain matters with the result that an insurance policy entered into by the claimant was voidable for non-disclosure.
Held: The claimant . .
Cited – Birkett v James HL 1977
Exercise of Power to Strike Out
The court has an inherent power to strike out an action for want of prosecution, and the House set down the conditions for its exercise. The power is discretionary and exercisable only where (a) there has been inordinate and inexcusable delay and . .

Cited by:

Cited – Polley v Warner Goodman and Streat (A Firm) CA 30-Jun-2003
A cause of action in negligence is complete once the claimant has suffered loss as a result of the negligence, even if the existence of the loss (and indeed of the negligence) is not, and could not be, known to him, and even where that loss is much . .
Cited – The Law Society v Sephton and Co and others CA 13-Dec-2004
The Society appealed dismissal for limitation of its claim against the defendant firm of accountants arising from alleged fraud in approval of a solicitor’s accounts.
Held: The liability did not arise until the Society decided to make . .
Cited – Luke v Kingsley Smith and Company and Others QBD 23-Jun-2003
The claimant sued various of those who had represented him in a claim against the Ministry of Defence. He believed that he had had to accept an inadequate sum in settlement after being at risk of losing the claim for non-prosecution. The defendant . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Litigation Practice, Limitation

Updated: 07 June 2022; Ref: scu.179741

Lorna Morrice v Martin Retail Group Limited: OHCS 22 Nov 2002

An accident occurred on 16 April 1997 and the action was raised on 21 November 2000. The pursuer averred that it would be equitable in the circumstances to allow her to bring the action out of time. The action had not been raised within the triennium because the firm of claim handlers acting on behalf of the pursuer had mistakenly noted on their file that the date of the accident was 16 April 1998.
Held: In refusing the claim: ‘It appears to me that, in a case like the present, where there is an admitted culpable act of negligence by the pursuer’s representatives in not raising the action timeously, it is simply insufficient to aver the fact of that negligent act. Frequently where the power conferred by section 19A is prayed in aid by a pursuer, there has been an oversight or omission by those acting for him to raise the action timeously. The court’s discretionary power, conferred by section 19A, is to be exercised when it seems to the court that it is equitable to do so. Before the pursuer can succeed in persuading the court to exercise the power he must, in my judgment, set out appropriate facts and circumstances which point to it being equitable, notwithstanding the oversight or omission by those acting on his behalf, that the action should be allowed to proceed. Those facts and circumstances will include, no doubt among other things, the reason for the oversight or omission, how excusable the oversight or omission was, and the prejudice to the pursuer (including the extent of any such prejudice) if the action were not to proceed. It is clear from the authorities, cited by counsel for the defenders, that these factors have to be averred with some degree of specification (and if necessary proved). The section 19A power cannot, in my judgment, be regarded as simply providing an automatic release from the consequences of a pursuer’s representative’s negligence. In the present case, even after amendment, the pursuer’s pleadings, in my opinion, provide no basis which would justify the court being persuaded that, notwithstanding the oversight or omission in this case, it would be equitable for the pursuer to be allowed to bring her action. This is particularly so where it is accepted, as it was, that a refusal to exercise the section 19A power would involve no real prejudice to the pursuer.’

Judges:

Lord Clarke

Citations:

[2002] ScotCS 298, 2003 SCLR 289

Links:

ScotC, Bailii

Cited by:

Cited – David Lannigan v Glasgow City Council OHCS 12-Aug-2004
The pursuer said the teachers employed by the defendant had failed to identify that was dyslexic, leading him to suffer damage. The defenders said the claim was time barred, which the pursuer admitted, but then said that the claim ought to go ahead . .
Lists of cited by and citing cases may be incomplete.

Scotland, Limitation

Updated: 07 June 2022; Ref: scu.179397

Matadeen v Caribbean Insurance Co Ltd: PC 20 Jan 2003

(Trinidad and Tobago) The claimant sought to claim damages. The respondent’s insurers became insolvent, and he sought the damages in turn from the insurer’s own insurer. They responded that the claim against them was out of time.
Held: The limitation period in the claim against the insurer’s insurers was the same as it would be as between the original insured and his insurer. The fact that the contract of insurance was entered into was a statutory requirement. That the contract was under seal did not operate to extend the limitation period.

Judges:

Bingham of Cornhill, Hobhouse of Woodborough, Millett, Svott of Foscoe, Rodge of Earslferry LL

Citations:

Times 20-Jan-2003, [2002] UKPC 69, [2003] 1 WLR 670

Links:

Bailii, PC

Commonwealth, Insurance, Limitation

Updated: 06 June 2022; Ref: scu.178782

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 then said the proceedings were an abuse of process, and pleaded a limitation defence.
Held: The deceased was not a person in law, and the first action had no proper defendant, and the two actions were not the same. The person appointed to defend was not a personal representative at law. There was an identity between him and the deceased, but only to the extent of the requirement to provide a defendant, and the appointment did not relate back to the death. The case fell within Shapland, not Walkley, and the judge could apply section 33 to allow the action.

Judges:

Lord Justice Sedley, Lord Justice Simon Brown, Lady Justice Arden

Citations:

Times 19-Feb-2003, [2003] EWCA Civ 24, [2003] RTR 540

Links:

Bailii

Statutes:

Limitation Act 1980 33, Civil Procedure Rules 19.8(2)(b)(ii)

Jurisdiction:

England and Wales

Citing:

Cited – 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 – 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 by:

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 – 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.

Civil Procedure Rules, Wills and Probate, Limitation

Updated: 06 June 2022; Ref: scu.178789

Roland Brandwood and others v Bakewell Management Ltd: CA 30 Jan 2003

House owners had used vehicular access across a common to get to their houses for many years. The commons owner required them to purchase the right, and they replied that they had acquired the right by lost modern grant and/or by prescription.
Held: The use of a right of way over a common by vehicles (as opposed to use by foot) was specifically an offence under the 1925 Act. Unlawful acts could not be relied upon to found a claim to an easement based upon prescription. This court was bound by clear previous authority, with which it agreed. To apply the doctrine of lost modern grant it was necessary to identify who might have been the parties to such a transaction. None could be found in this case.

Judges:

Lord Justice Ward, Lady Justice Arden, Mr Justice Sullivan

Citations:

Times 05-Feb-2003, [2003] EWCA Civ 23, Gazette 20-Mar-2003

Links:

Bailii

Statutes:

Law of Property Act 1925 193, Countryside and Rights of Way Act 2000 68, Vehicular Access Across Common and Other Land (England) Regulations 2002 11, Prescription Act 1832 2

Jurisdiction:

England and Wales

Citing:

Appeal from – Bakewell Management Ltd v Brandwood and Others ChD 21-Mar-2002
The claimant sought a declaration that he had acquired an easement over land by driving over it, over several years. The land owner denied the easement, saying that section 193 made the claimant’s activity a crime, and that, following Hanning, . .
Cited – Philipps v Halliday HL 1891
The freehold owner sought to recover possession of a pew in a parish church. He brought evidence that for more than 70 years he and his family had used it, repaired it, and kept it under lock and key.
Held: A legal origin for the use ought to . .
Cited – Tehidy Minerals Ltd v Norman CA 1971
The fact that land had been requisitioned by the Ministry of Agriculture between 1941 and 1960 and the 20-odd years’ user relied on as having created the rights had preceded 1941 was a bar to a prescriptive claim to grazing rights under the . .
Cited – Davis v Whitby CA 1974
The court discussed the need for some system of acquisition of right by user.
Lord Denning MR said: ‘the long user as of right should by our law be given a lawful origin if that can be done.’
Stamp LJ said: ‘if long enjoyment of a right . .
Cited – Regina v Oxfordshire County Council and Another, Ex Parte Sunningwell Parish Council HL 25-Jun-1999
When setting out to establish that a piece of land has become a village green with rights of common, the tests are similar to those used in the law of prescription and adverse possession. Accordingly, there is no need to establish a belief in those . .
Applied – Hanning and Others v Top Deck Travel Group Ltd CA 9-Jun-1993
The owner of a common appealed a finding that the neighbouring land owner had acquired by prescription a right of way across the common to use a track for commercial vehicles (buses) to get to the property (the bus depot).
Held: An easement . .
Cited – Neaverson v Peterborough Rural District Council ChD 1902
The 1812 Act provided for the draining, enclosing and improving of a fen which was common land. Under the Act the grass growing on various roadways was vested in the surveyor of highways, who had power to let it for the pasturage of ‘sound and . .
Cited – Cargill v Gotts CA 1981
The Act prohibited abstraction of water from a river without a licence from the Water Authority. The defendant had no such licence, but asserted that having extracted water over many years from the mill pond, he had acquired the right to do so: ‘The . .
Cited – Young v The Bristol Aeroplane Co Ltd CA 28-Jul-1944
Court of Appeal must follow Own Decisions
The claimant was injured and received compensation. He then sought to recover again, alleging breach of statutory duty by his employers.
Held: The Court of Appeal was in general bound to follow its own previous decisions. The court considered . .
Cited – Morelle Ltd v Wakeling CA 1955
The plaintiff asserted ownership of leasehold land. A similar situation had arisen in an earlier case befoe the Court of appeal, and the court was asked to decide that that case had been decided per incuriam.
Held: The per incuriam principle . .
Cited – Rickards v Rickards CA 1990
The Court of Appeal considered the circumstances in which it could depart from its own earlier decisions under the residual principle. The court refused to follow a previous decision of the same court because, although the relevant House of Lords . .

Cited by:

Reversed on Appeal – Bakewell Management Limited v Brandwood and others HL 1-Apr-2004
Houses were built next to a common. Over many years the owners had driven over the common. The landowners appealed a decision that they could not acquire a right of way by prescription over the common because such use had been unlawful as a criminal . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 06 June 2022; Ref: scu.178785

Robinson v St Helens Metropolitan Borough Council: CA 25 Jul 2002

The claimant sought an extension of the limitation period to allow him to pursue an action. He sought damages for negligence against his former school which had failed to diagnose and treat his dyslexia.
Held: His appeal was denied. The claim was one for personal injury, but the question of whether to extend the time period is one for a judge’s discretion. The prejudice to the claimant in being denied the right to bring an action must not be over-emphasised. Here, the long delay meant also that the defendant would have great difficulty in unearthing its records to defend its action. There were no grounds for interfering with the judge’s discretion. As to whether a failue to ameliorate dyslexia could constitute a personal injury: ‘Dyslexia . . may itself be an ‘impairment of a person’s mental condition’. It is not of course caused by the defendant; but negligent failure to ameliorate the consequences of dyslexia by appropriate teaching may be said to continue the injury, in the same way that the negligent failure to cure or ameliorate a congenital physical condition so that it continues, could give rise to an action for personal injuries. Although as I understand it dyslexia cannot be cured, a dyslexic person can be trained to overcome the difficulties in reading and writing which he experiences.’

Judges:

Lords Justice Peter Gibson and Brooke and Sir Murray Stuart-Smith

Citations:

Gazette 10-Oct-2002, [2003] PIQR P128, [2002] EWCA Civ 1099

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Adams v Bracknell Forest Borough Council CA 6-May-2003
The claimant sought damages from the defendant for having failed to diagnose his dysexia, resulting in educational failure. The respondent argued a reasonable peson would have sought help earlier. The council appealed a refusal to strike out of the . .
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 – Zurich Insurance Plc UK Branch v International Energy Group Ltd SC 20-May-2015
A claim had been made for mesothelioma following exposure to asbestos, but the claim arose in Guernsey. Acknowledging the acute difficultis particular to the evidence in such cases, the House of Lords, in Fairchild. had introduced the Special Rule . .
Lists of cited by and citing cases may be incomplete.

Limitation, Personal Injury

Updated: 06 June 2022; Ref: scu.177396

Allen and Another v Greenwood and Another: CA 16 Oct 1978

cw Easement – Prescription – Right to light – Greenhouse – Claim for sufficient light to cultivate plants – Whether specially high amount of light – Whether right to extraordinary amount of light capable of being acquired by prescription – Whether right is to light for illumination only or capable of including sun’s warmth
The claimants greenhouse had been in the same position for over 20 years. They complained about work on the defendant neighbour’s land which interfered with the rights of light they had acquired.
Held: The Act set the standard for the easement acquired by prescription as the extent required for the use which had been made. The greenhouse required extra light, and that was the extent of the easement acquired.

Judges:

Buckley, Orr and Goff L.JJ

Links:

lip

Statutes:

Prescription Act 1832 3

Jurisdiction:

England and Wales

Citing:

Cited – Colls v Home and Colonial Stores Ltd HL 2-May-1904
The courts below had concluded that the defendant had infringed the plaintiff’s right to light, and had awarded an injunction.
Held: the appeal succeeded. The House set out the requirements for establishing the existence of a right to light. . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 06 June 2022; Ref: scu.177400

Hemp v Garland, Administrator and Co: 1843

The Defendant gave a warrant of attorney to secure a debt payable by instalments, the plaintiff to be at liberty, in case of any default, to have judgment and execution for the whole, as if all the periods for payment had expired. Held that, in an action of assumpsit on the implied promise to pay according to the terms of the defeazance, defendant might shew, urider a plea of the Statute of Limitations, that the first default was made more than six years before action; and that this was a complete defence, not only as to instalments due more than six years ago, but also as to those due within that period.
The court found that ‘the cause of action accrued upon the first default for all that then remained owing of the whole debt.’
Lord Denman CJ continued: ‘(t)here was no other contract for forbearance or giving time than that which is expressed in or to be implied from the terms of the warrant of attorney.’

Judges:

Lord Denman CJ

Citations:

[1843] EngR 33, (1843) 4 QB 519, (1843) 114 ER 994, 12 LJQB 134, 3 Gal and Dav 402

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Approved – Reeves v Butcher CA 1891
A five-year loan was granted by the plaintiff to the defendant under a written agreement, providing for a ‘power to call in the same at an earlier period in the events hereinafter mentioned’. The plaintiff agreed not to call in the money for the . .
Cited – BMW Financial Service (GB) Ltd v Hart CA 10-Oct-2012
This appeal is concerned with a point of limitation arising out of a standard hire purchase contract concerning a car. The respondent had failed to maintain his payments, and theappelleants issued a termination notice. He was abroad fr a while, and . .
Lists of cited by and citing cases may be incomplete.

Limitation, Contract

Updated: 06 June 2022; Ref: scu.305727

Bristol and West plc v Bartlett and Another; Paragon Finance plc v Banks; Halifax plc v Grant: CA 31 Jul 2002

The defendants resisted claims by lenders for the payment of mortgage debts. In each case the lender had exercised the power of sale before issuing proceedings for possession. The defendants queried the limitation period applicable.
Held: The exercise of the power of sale did not mean that the original mortgage debt changed. The recovery of the original debt was governed by section 12 and section 20 together and was therefore twelve years. The recovery of the interest was governed by 20(5) and the period for claiming arrears of interest was six years.
Longmore LJ said: ‘Since the subsection refers to ‘the date on which the right to receive the money accrued’ it is much more natural to read the subsection as applying to mortgages existing on the date on which such right accrued.’

Judges:

Lord Justice Schiemann, Lord Justice Buxton and Lord Justice Longmore

Citations:

Times 09-Sep-2002, Gazette 03-Oct-2002, [2002] EWCA Civ 1181, [2003] 1 WLR 284

Links:

Bailii

Statutes:

Limitation Act 1980 12 20

Jurisdiction:

England and Wales

Citing:

Cited – In re McHenry CA 1894
The court considered the effect of the Limitation Acts on the rights of a secured creditor where there was an express shortfall provision in a mortgage deed. There was an express promise by a mortgagor to pay the difference on realisation of the . .
Cited – Hopkinson and Others and Birmingham Mid-Shires Building Society v Tupper CA 30-Jan-1997
The plaintiffs appealed from an order striking out their claim for want of prosecution. The defendant’s property had been sold by the mortgagees, and the plaintiffs as assignees of their debt sought to recover the balance outstanding from the . .
Cited – Rudge v Richens 1873
The mortgagee of land had entered into possession, and sold the property. He sought a declaration that he remained entitled to the balance due on the loan over and above the proceeds of sale. The defendant replied that he was not liable since the . .
Cited – Grant (Gordon) and Co v Boos HL 1926
The mortgagee had entered into possession, and then, with the consent of the court, itself bid at the auction and succeeded in purchasing it. It later resold the property for a price above the auction price. The borrower resisted an action for the . .
Cited – Sutton v Sutton 1882
A mortgage deed contained an express covenant to repay on demand the amount advanced. The principal sum and interest were secured by a mortgage of real property. A demand for payment was made, but not satisfied. An action was brought on the covenant . .
Cited – Barclays Bank v Beck CA 1952
The court drew a distinction between an action on a debt which had been but was no longer secured, and a debt which had not been secured. . .

Cited by:

Applied – Scottish Equitable Plc v Thompson and Another CA 6-Feb-2003
The mortgage deed, which was a second mortgage, did not contain any express covenant to repay the principal sum, but only for monthly interest instalments with no element of capital repayment, since the principal was to be paid from an insurance . .
Approved – 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.

Limitation, Land

Updated: 06 June 2022; Ref: scu.175058

Brazil v Brazil: CA 31 Jul 2002

The defendant appealed against an order for rectification of the registered title to land he occupied, and for which he had had a possessory title. The order had been made in his absence.
Held: A ‘good reason’ for non attendance at a hearing was not just an honest and genuine one, but the court must not be over-analytical. The court is to ascertain from the evidence what the true reason for non attendance at trial was and, looking at the matter in the round, to ask whether that reason is sufficient to entitle the applicant to invoke the discretion of the court to set aside the order. Here, the address for service was incorrect, the defendant was illiterate, and he had not received the notice. The fact of his illiteracy was relevant. There was good reason for non-attendance. Here, the defendant had lodged a statutory declaration in support of his application for possessory title, and it was unclear that the proceedings should have gone ahead on the basis that there would be no factual dispute. Appeal against the setting aside of the order dismissed.
Mummery LJ said: ‘There has been some debate before us, as there was before the judge, about what is or is not capable of being a ‘good reason.’ In my opinion the search for a definition or description of ‘good reason’ or for a set of criteria differentiating between good and bad reasons is unnecessary. I agree with Hart J that, although the court must be satisfied that the reason is an honest or genuine one, that by itself is not sufficient to make a reason for non-attendance a ‘good reason.’ The court has to examine all the evidence relevant to the defendant’s non-attendance; ascertain from the evidence what, as a matter of fact, was the true ‘reason’ for non attendance; and, looking at the matter in the round, ask whether that reason is sufficient to entitle the applicant to invoke the discretion of the court to set aside the order. An over analytical approach to the issue is not appropriate, bearing in mind the duty of the court, when interpreting the rules and exercising any power given to it by the rules, to give effect to the overriding objective of enabling it to deal with cases justly. The perfectly ordinary English phrase ‘good reason’ as used in CPR 39.3(5) is a sufficiently clear expression of the standard of acceptability to be applied to enable a court to determine whether or not there is a good reason for non-attendance.’

Judges:

Lord Justice Mummery, Lady Justice Hale, and Lord Justice Carnwath

Citations:

Times 18-Oct-2002, [2002] EWCA Civ 1135, [2003] CP Rep 7

Links:

Bailii

Statutes:

Civil Procedure Rules 39.3

Jurisdiction:

England and Wales

Citing:

Cited – Regency Rolls Ltd and Another v Carnall CA 16-Oct-2000
The court considered what was meant by ‘act promptly’ in the Rule.
Held: Dictionary definitions were considered by both Arden LJ and Simon Brown LJ – ‘with alacrity’ or ‘all reasonable celerity in the circumstances’. The court no longer has a . .

Cited by:

Cited – Estate Acquisition and Development Ltd v Wiltshire and Another CA 4-May-2006
The defendants appealed a decision that they had no sufficient reason for not attending court on the day of the trial.
Held: The fact that the defendants had a continuing commercial relationship with the claimants was not enough to justify an . .
Cited – Zambia v Meer Care and Desai (A Firm) and others CA 9-Jul-2008
The claimant sought to allege fraud by its former president, and began proceedings to recover payments it said were fraudulent, including against a defendant Taylor in Switzerland, who now said that no letter before action or other explanation . .
Cited – WXY v Gewanter and Another QBD 30-May-2012
The claimant had obtained an injunction to restrain publication of what was private information. The third defendant now applied to set aside the judgment, saying that their application for an adjournment had been wrongly refused. He said that he . .
Cited – Kenny and Others v Abubaker and Others CA 23-Oct-2012
The defendant landlord sought to appeal against an order that he pay to the respondent tenants a penalty under the 2004 Act of three times the tenancy deposit. The court was now asked whether there was has any right to have set aside a judgment . .
Lists of cited by and citing cases may be incomplete.

Land, Registered Land, Limitation, Civil Procedure Rules

Updated: 06 June 2022; Ref: scu.174447

Six Continents Retail Ltd (Formerly Bass Taverns Limited T/A Bass Leisure Retail) v Hughes: EAT 19 Apr 2002

The claimant sought damages for sex discrimination after her summary dismissal. Though she received some advice, her application was lodged out of time. For the unfair dismissal and unlawful deductions claims, the test was whether it had been reasonably practicable to act within the time limits, but for the sex discrimination claim, the test was a just and equitable test. The tribunal had also to ask whether the claim was presented within a practicable time after the limitation period had expired. She had had difficulties with a pregnancy, and from losing her accommodation which went with the job.
Held: Here the tribunal had not applied the correct tests. Appeal allowed and case remitted.

Judges:

His Hon Judge Clark

Citations:

EAT/1312/00, [2002] UKEAT 1312 – 00 – 1904

Links:

Bailii, EAT

Statutes:

Employment Rights Act 1996 111(2)(b) 23(4)

Employment, Discrimination, Limitation

Updated: 06 June 2022; Ref: scu.173993

Steffens v Council and Commission: ECFI 25 Nov 1998

ECJ The limitation period laid down in Article 43 of the Statute of the Court of Justice in respect of actions brought against the Community in matters concerning non-contractual liability cannot begin to run before all the requirements governing the obligation to make good the damage are satisfied and, in particular, in cases in which liability stems from a legislative measure, before the injurious effects of the measure have been produced.
As regards the injury suffered by producers of milk and milk products who, following their entry into non-marketing or conversion undertakings under Regulation No 1078/77, were unable by operation of Regulation No 857/84 to obtain a reference quantity or, consequently, to market any quantity of milk exempt from the additional levy, the limitation period started to run on the date on which, following the expiry of their non-marketing undertaking, the producers concerned could have resumed deliveries of milk if they had not been refused a reference quantity; that is to say, in cases where the undertaking expired before the date on which Regulation No 857/84 entered into force, time started to run on that date.
Moreover, since the damage was not caused instantaneously but continued to be sustained from day to day for a certain period as a result of the maintenance in force of an illegal measure, the time-bar under Article 43 of the Statute applies, with respect to the date of the event which interrupted the limitation period, to the period more than five years prior to that date and does not affect rights which arose during subsequent periods.
So far as regards, specifically, the notion of an event which interrupts a limitation period, the waiver of the right to plead limitation – provided for by the Communication of the Council and the Commission concerning the subsequent adoption of Regulation No 2187/93 which provided for an offer of compensation to the producers concerned – does not constitute such an event. The Communication merely provided for a self-imposed restriction of the right to plead limitation. The producers were able to rely on that waiver in the circumstances referred to in Regulation No 2187/93, since it ceased to have effect at the end of the period allowed for accepting the compensation offer, from which time, in the absence of acceptance of the offer or commencement of proceedings, the institutions once again became entitled to plead limitation.

Citations:

T-222/97, [1998] EUECJ T-222/97

Links:

Bailii

European, Limitation

Updated: 06 June 2022; Ref: scu.173413

BP Exploration Operating Co Ltd v Chevron Shipping Company and Chevron Tankers (Bermuda) Ltd and Chevron Transport Corporation: SCS 13 Apr 2000

Judges:

Lord Cowie and Lord President and Lord Sutherland

Citations:

[2000] ScotCS 105

Links:

Bailii

Jurisdiction:

Scotland

Citing:

Appeal from – BP Exploration Operating Company Ltd v Chevron Shipping Company; Same v Chevron Tankers (Bermuda) Ltd; Same v Chevron Transport Corporation OHCS 26-Jan-1999
Where an action had been delayed beyond the five year prescription period because of an error induced by the party sued, the prescriptive period did not restart until the party was disabused of its mistake. . .

Cited by:

Appeal from – BP Exploration Operating Co Ltd v Chevron Transport (Scotland) HL 18-Oct-2001
A ship owned by the defenders caused substantial damage whilst moored at the claimant’s docks. The claim was made against different members of the defendants as they asserted and denied responsibility. The last company asserted that the claim was . .
Lists of cited by and citing cases may be incomplete.

Limitation

Updated: 05 June 2022; Ref: scu.169352

Ace Insurance Sa-Nv v Surendranath Seechurn: CA 6 Feb 2002

The claimant sought payment under an insurance policy for his permanent disability. The judge had found that the defendant insurers had indicated a readiness to continue negotiations beyond the limitation period, and that they would apply for a stay if proceedings were issued whilst negotiations were under way. The insurers later claimed that his claim was out of time. He asserted that they were estopped from making that assertion. The insurance company appealed a finding against them.
Held: An estoppel would require a clear promise with specific regard to the limitation period. It was unnecessary to explore the several different forms of estoppel. Hughes was to apply. There was to be shown a clear representation. It must be precise and unambiguous. The claimants interpretation of what was happening did not affect the objective view of the words used. The offer made was conditional upon the claimant submitting to further examination in any event, which he had not done. No estoppel was established.

Judges:

Lord Justice Ward Lord Justice Thorpe And Lord Justice Keene

Citations:

[2002] EWCA Civ 67, [2002] 2 Lloyds LR 390

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Applied – Hughes v Metropolitan Railway Co HL 1877
A notice to repair had been served by the landlord on the tenant. The tenant wrote offering to buy the premises and proposed deferring the commencement of repairs until the landlord responded. The landlord replied by letter asking the price. It was . .
Cited – Republic of India and Another v India Steamship Co Ltd (Indian Endurance and Indian Grace) (No 2) HL 23-Oct-1997
When a action in rem against a ship was in fact parallel to an action in personam begun in India and awaiting a decision; an action was not to be allowed here.
Lord Steyn: ‘It is settled that an estoppel by convention may arise where parties to . .

Cited by:

Cited – Super Chem Products Limited v American Life and General Insurance Company Limited and Others PC 12-Jan-2004
PC (Trinidad and Tobago) A fire occurred at premises in which the stock was insured under two policies. Both insurers denied the claims alleging arson, and that it was out of time. The claimant said that the . .
Lists of cited by and citing cases may be incomplete.

Limitation, Personal Injury, Insurance, Estoppel

Updated: 05 June 2022; Ref: scu.167920

Ezekiel v Lehrer: CA 30 Jan 2002

The applicant claimed that his solicitor had been negligent with regard to the execution of a mortgage. The solicitor said his claim was time barred. The claimant said the solicitor had hidden the true situation from him, and the solicitor replied that he had merely refused to answer a question put to him, but had instead advised him to take independent advice. The claimant appealed a finding against him.
Held: The claimant asserted that he had learned of the facts, then forgotten them until five years later. He could not claim to have been unaware of them so as to extend the limitation period.

Judges:

Lord Justice Ward Lord Justice Jonathan Parker And Mr Justice Harrison

Citations:

[2002] EWCA Civ 16, [2002] Lloyd’s Law Rep PN 260

Links:

Bailii

Statutes:

Limitation Act 1980 32(1)(b)

Jurisdiction:

England and Wales

Citing:

Cited – Sheldon and Others v R H M Outhwaite (Underwriting Agencies) Ltd and Others HL 5-May-1995
The limitation period did not run whilst relevant facts were deliberately concealed after the damage had been concealed. Section 32 could apply where the concealment of the relevant fact took place after the event as well as at the time of it. The . .
Appeal from – Ezekiel v Lehrer ChD 21-Mar-2001
The claimant had given instructions to the defendant with regard to a charge. The defendant came to know that he had made an error, and when asked by the claimant, declined to answer, and referred the claimant to independent advice. The claimant now . .
Cited – Cave v Robinson Jarvis and Rolf CA 20-Feb-2001
The court was asked as to the meaning of the word ‘deliberate’ as it appeared in section 32(2) of the 1980 Act. . .
Cited – James Brocklesby v Armitage and Guest (a Firm) CA 9-Jul-1999
A failure by an adviser to make his position clear when he thought he had been negligent, could constitute a ‘deliberate’ act within section 32 even if the defendant’s actions were not motivated by any intention to deceive the claimant: ‘it is not . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence, Limitation

Updated: 05 June 2022; Ref: scu.167903

W T Lamb and Sons v Rider: CA 1948

The judge at first instance had rescinded the master’s order giving leave to the judgment creditor to proceed to levy execution although six years had passed since the judgment. On appeal the judgment creditor challenged the validity of the rule of court dating from 1883 requiring leave to proceed to levy execution. It was contended that the rule was in conflict with s2(4). It subjected the right of execution, if not exercised within 6 years, to the discretion of the court. The judgment creditor argued that it was entitled by statute to bring an action upon the judgment and to issue execution, which was ‘a proceeding in a court of law’ and therefore an ‘action upon a judgment.’ Such an action could be brought, without obtaining the leave of the court, within 12 years from the date on which the judgment became enforceable.
Held: The expression ‘an action upon any judgment’ in s 2(4) of the 1939 Act was interpreted to apply only to suing for a judgment upon a judgment. It did not apply to execution of a judgment. The Court rejected the contention that the provision in the Rules of the Supreme Court (O 42 r23(a)), requiring a judgment creditor, after the elapse of 6 years from the date of the judgment, to obtain the leave of the court to levy execution, was rendered invalid by s2(4) of the 1939 Act, which allowed 12 years for bringing an action upon any judgment as of right. Scott LJ: The 12 year limitation period set in the 1939 Act dealt only with the ‘substantive right to sue for and obtain a judgment, and with that alone;’ the period did not apply to the ‘procedural machinery for enforcing a judgment when obtained.’ The broad definition of ‘action ‘ in the 1939 Act did not have the effect of merging what had formerly been the two ‘quite independent and distinct’ subjects of (a) the substantive right to sue for and obtain a judgment and (b) the procedural machinery for enforcing a judgment when obtained. It did not cover an application to the court for leave to levy execution on the judgment after the expiration of 6 years.

Judges:

Scott L

Citations:

[1948] 2 KB 331

Statutes:

Limitation Act 1939 2(4)

Jurisdiction:

England and Wales

Cited by:

Cited – Ridgeway Motors (Isleworth) Ltd v Alts Ltd CA 10-Feb-2005
The company appelaed a refusal of the judge to strike out a winding up petition. They said the petition was based upon a judgment which was now time barred. The petitioner replied that such a petition was not an action under the section.
Held: . .
Cited – Lowsley and Another v Forbes (Trading As I E Design Services) HL 29-Jul-1998
The plaintiffs, with the leave of the court, had obtained garnishee and charging orders nisi against the debtor 11 and a half years after they had obtained a consent judgment.
Held: An application by the judgment debtor to set aside the orders . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Limitation

Updated: 05 June 2022; Ref: scu.223038

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 manufacturer, and the error only came to light outside the limitation period. It was said that the Product Liability directive did not operate as a limitation period but extinguished the right of action, and so was not covered by rule 19.5.
Held: The distinction did not have the value claimed, and the order substituting the respondent was appropriate. The intention had been to sue a person satisfying a particular description, namely the manufacturer of the batch.

Judges:

Dame Elizabeth Butler-Sloss, President, Lady Justice Hale and Lord Justice Keene

Citations:

Times 10-Jan-2002, Gazette 21-Feb-2002, [2001] EWCA Civ 2006, [2002] 1 WLR 1662

Links:

Bailii

Statutes:

Limitation Act 1980 11A(3), Consumer Protection Act 1987, Civil Procedure Rules 19.5, Product Liability Directive (85/374/EEC)

Jurisdiction:

England and Wales

Citing:

Applied – 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 – The Sardinia Sulcis CA 1991
The power to change a party after the expiry of a limitation period can be exercised where a party has been wrongly identified, but ‘it was possible to identify the intending claimant or intended defendant by reference to a description which was . .

Cited by:

Cited – Parsons and Another v George and Another CA 13-Jul-2004
The claimant sought to begin proceedings to renew his business tenancy, but the proceedings were issued in the wrong name. He sought to amend the proceedings to substitute the correct defendant, but that application was out of time.
Held: . .
Cited – 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 . .
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 . .
Lists of cited by and citing cases may be incomplete.

Limitation

Updated: 05 June 2022; Ref: scu.167352

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 relationship came to an end the plaintiff claimed an account, and the question was whether the account should be limited to the six years before the issue of the writ or whether it should extend over the whole period of the relationship.
Held: Pure breach of trust were not subject to limitation but is so on an allegation of constructive trust. Millett LJ: ‘Accordingly, the defendant’s liability to account for more than six years before the issue of the writ in Nelson v Rye depended on whether he was, not merely a fiduciary (for every agent owes fiduciary duties to his principal), but a trustee, that is to say, on whether he owed fiduciary duties in relation to the money.
Whether he was in fact a trustee of the money may be open to doubt. Unless I have misunderstood the facts or they were very unusual it would appear that the defendant was entitled to pay receipts into his own account, mix them with his own money, use them for his own cash flow, deduct his own commission, and account for the balance to the plaintiff only at the end of the year. It is fundamental to the existence of a trust that the trustee is bound to keep the trust property separate from his own and apply it exclusively for the benefit of his beneficiary. Any right on the part of the defendant to mix the money which he received with his own and use it for his own cash flow would be inconsistent with the existence of a trust. So would a liability to account annually, for a trustee is obliged to account to his beneficiary and pay over the trust property on demand. The fact that the defendant was a fiduciary was irrelevant if he had no fiduciary or trust obligations in regard to the money. If this was the position, then the defendant was a fiduciary and subject to an equitable duty to account, but he was not a constructive trustee. His liability arose from his failure to account, not from his retention and use of the money for his own benefit, for this was something which he was entitled to do.
Unless the defendant was a trustee of the money which he received, however, the claim for an account was barred after six years. The fact that the defendant was a fiduciary did not make his failure to account a breach of fiduciary duty or make him liable to pay equitable compensation. His liability to account arose from his receipt of money in circumstances which made him an accounting party. It did not arise from any breach of duty, fiduciary or otherwise. The defendant was merely an accounting party who had failed to render an account.’

Judges:

Millett LJ

Citations:

Times 05-Dec-1995, [1996] 1 WLR 1378

Jurisdiction:

England and Wales

Cited by:

Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Limitation

Updated: 05 June 2022; Ref: scu.84248

Mortgage Corporation v Alexander Johnson (A Firm): ChD 7 Jul 1999

The rule that in the case of a dispute as to whether a claim was time barred, a fresh action had to be begun to allow the proposition to be tested, did not apply where the delay arose from some deliberate concealment of the cause of action by the proposed defendant, and the deliberateness was itself an issue in the action. Mr David Donaldson QC refused permission to amend to plead breaches of fiduciary duty after expiry of the prima facie limitation period, saying: ‘plainly the deliberateness of a breach of duty can rarely, if ever, be determined in advance of the question whether there was a breach at all. In the case of an amendment pleading such a breach as a cause of action after expiry of the primary limitation period, that would normally mean leave to amend should be refused. That can readily be seen in a case where the plaintiff seeks to raise a new case of breach of contract, rebutting limitation by the suggestion of deliberate breach; but there the deliberateness would not be an essential element of the breach. The position is less obvious where the deliberateness of the breach is an essential element of the cause of action and is therefore pleaded as such as part of the substantive claim; for in such a case without the deliberateness the claim will fail anyway and the limitation defence adds nothing.
there appear to be difficult questions . . as to what ‘deliberate commission of a breach of duty’ would mean and involve in the present case. These would include such questions as precisely what kind of mental state is included in the adjective ‘deliberate’ and what that would amount to in the present case. Does this require consciousness that the conduct is in breach, or recklessness as to whether it is in breach or alternatively, consciousness that the conduct is in some way wrong or recklessness as to that? Or is it sufficient that the acts are intentional without reference to their quality as breaches of duty? ‘

Judges:

Mr David Donaldson QC

Citations:

Times 22-Aug-1999

Jurisdiction:

England and Wales

Cited by:

Cited – Mortgage Express v Abensons Solicitors (A Firm) ChD 20-Apr-2012
The claimant lender sought damages against the defendant solicitors alleging negligence and breach of fiduciary duty by them in acting for them on mortgage advances. The defendants now argued that the allowance of an amendment to add the allegation . .
Lists of cited by and citing cases may be incomplete.

Limitation

Updated: 05 June 2022; Ref: scu.83869

Savings and Investment Bank Ltd (in Liquidation) v Fincken: CA 6 Nov 2001

When the court was asked to decide whether a proposed form of amendment to the pleadings would add an issue which was out of time, the court must look to the pleadings before and after the proposed amendment, and the factual issues which would have to be proved to support each version. The mere addition of a new remedy for the same cause of action was not a new claim.

Judges:

Lord Justice Peter Gibson, Lord Justice Robert Walker and Lord Justice Keene

Citations:

Times 15-Nov-2001, Gazette 14-Dec-2001, [2001] EWCA Civ 1639

Links:

Bailii

Statutes:

Limitation Act 1980 3

Jurisdiction:

England and Wales

Citing:

Cited – Goode v Martin CA 13-Dec-2001
The claimant had sought to amend her claim for damages for personal injuries. The application had been rejected as introducing a claim not based on the same facts. She had suffered severe head injuries, and had no memory of the accident. She served . .
Cited – Steamship Mutual Underwriting Association Ltd v Trollope and Colls Ltd CA 1986
The employers sued the builders and architects alleging defects in the air conditioning system. Later, cracking and displacement of the walls was discovered, caused allegedly by not having sulphate resisting cement, and defects in the wall ties. . .
Approved – Lloyds Bank Plc v Rogers CA 16-Jul-1999
Where a claim had been made for possession of property under a legal charge, but no claim had been made for financial relief, and a later claim for such relief was made through an amended claim, the loss of the possible defence of limitation was a . .
Appeal from – Savings and Investment Bank Ltd (in Liquidation) v Fincken ChD 2-Mar-2001
The process of testing whether a new cause of action was proposed by an amendment of pleadings to bring into question application of the Limitation Acts, was conducted by asking at what level of abstraction was it claimed that there were one or two . .

Cited by:

See Also – Savings and Investment Bank Ltd (In Liquidation) v Fincken CA 14-Nov-2003
Parties to litigation had made without prejudice disclosures. One party sought to give evidence contradicting the dsclosure, and the other now applied for leave to amend based upon the without prejudice statements to be admitted to demonstrate the . .
Cited – Brown v Rice and Another ChD 14-Mar-2007
The parties, the bankrupt and her trustee, had engaged in a mediation which failed at first, but applicant said an agreement was concluded on the day following. The defendants denied this, and the court as asked to determine whether a settlement had . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Limitation

Updated: 04 June 2022; Ref: scu.166780

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 to extend the period. The lack of prejudice to the defendant was not in itself a good reason for extending the limitation period, and no sufficient reason for the delay was given. The purpose of defamation actions is to restore the claimant’s reputation expeditiously. The importance he attached to that was measured in part by his readiness to comply with rules. The Act explicitly required the court to consider any reasons for delay. The discretion afforded by s.32A is ‘largely unfettered’. It requires the court to balance any prejudice to the claimant on the one hand and the defendant on the other in allowing the action to proceed or otherwise. All the circumstances of the case must be taken into account in assessing the justice of the matter, with particular reference to the length of, and reasons for, the delay and the extent to which the passage of time since the expiration of the limitation period has had an impact on the availability or cogency of relevant evidence. It had a discretion, but no reason to exercise it in favour of these claimants.
Brooke LJ said that: ‘whilst it would be wrong to read into section 32A, words that are not there, the strong policy considerations underlying modern defamation practice which are now powerfully underlined by the terms of the new Pre-action Protocol for Defamation, tend to influence an interpretation of section 32A which entitles the court to take into account all the considerations set out in this judgment when it has regard to all the circumstances of the case.’

Judges:

Lord Justice Brooke, Lady Justice HaleCitations: Gazette 06-Dec-2001, Times 13-Dec-2001, [2001] EWCA Civ 1534, [2002] EMLR 318, [2002] EMLR 17

Links:

Bailii

Statutes:

Defamation Act 1996 5(2), Limitation Act 1980 4A 32A(1)

Jurisdiction:

England and Wales

Citing:

See Also – Steedman and others v British Broadcasting Corporation CA 19-Jun-2001
. .
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 by:

Cited – Buckley v Dalziel QBD 3-May-2007
There was a heated dispute between neighbours, culminating in some generous or perhaps over-generous pruning by the claimant of the defendant’s trees and shrubs on the boundaries. The defendants reported the matter to the police. Both Mr and Mrs . .
Cited – 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 . .
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 – Brady v Norman QBD 26-May-2010
The claimant appealed against refusal of the Master to extend the 12 month limitation period in his proposed defamation claim. The allegations related to a dispute at an Aslef barbecue, and later of forgery. The claimant was a former General . .
Cited – Brady v Norman CA 9-Feb-2011
The claimant sought to have disapplied the limitation period in his defamation claim. The claimant said that in the case of Cain, the Steedman case had not been cited, and that the decisions were incompatible, and that Cain was to be prefered.
Cited – S v Suren and Another QBD 10-Sep-2004
. .
Cited – Lachaux v Independent Print Ltd and Others QBD 29-Jun-2015
Orders allowing extension of time for service of the Particulars of Claim. . .
Cited – Bewry v Reed Elseveir (UK) Ltd and Another QBD 10-Oct-2013
The claimant had begin proceedings against the defendant legal publishers, saying that their summary of a cash had brought was defamatory. He now sought leave to extend the limitation period for his claim, and the defendants argued that, given the . .
Cited – Reed Elsevier Uk Ltd (T/A Lexisnexis) and Another v Bewry CA 30-Oct-2014
Appeal from a decision granting the claimant’s application made pursuant to section 32A of the Limitation Act 1980 to disapply the limitation period in his proceedings for libel and dismissing the defendants’ application to strike out the claimant’s . .
Lists of cited by and citing cases may be incomplete.

Defamation, Limitation

Updated: 04 June 2022; Ref: scu.166633

Godwin v Swindon Borough Council: CA 10 Oct 2001

The claimant appealed against an order striking out his claim for personal injuries. The claim had been issued in time, but not served. An extension of time was granted, and the notice sent by first class post the day before that period expired. The defendant had claimed that the rules deemed service on the second day after posting, and therefore the day after expiry of the extension of time. In this case they had in fact received the notice on that last day. Did the deeming provision override the facts?
Held: The provision should be read to allow for contrary evidence. The appeal was allowed. CPR 6.9 cannot be invoked to dispense with service ‘when what would be done is in substance that which CPR 7.6(3) forbids.’
May LJ described Practice Directions as ‘subordinate to the rules’ and as ‘at best a weak aid to the interpretation of the rules themselves.’
CPR Part 6 contains general rules about service of documents and does not only apply to service of a claim form.

Judges:

Lord Justice Pill, Lord Justice May And Mr Justice Rimer

Citations:

[2002] 1 WLR 997, [2001] 4 All ER 641, [2001] EWCA Civ 1478

Links:

Bailii

Statutes:

Civil Procedure Rules 6.7(1)

Jurisdiction:

England and Wales

Citing:

Cited – Elmes v Hygrade Food Products Plc CA 24-Jan-2001
Where a claim form is served in time but is incorrectly served (in this case on the defendants’ insurers instead of on the defendants themselves), there is no power in the court under CPR 3.10(b) (remedy of errors of procedure) or CPR 6.8 (service . .

Cited by:

Cited – Consignia Plc v Russell Sealy CA 19-Jun-2002
The complainant was a post office employee. He brought a claim for unfair dismissal, but he posted it at a time when in the normal course of delivery, it would not arrive. He claimed to be unaware of the normal times for delivery.
Held: It was . .
Affirmed – Anderton v Clwyd County Council (No 2); Bryant v Pech and Another Dorgan v Home Office; Chambers v Southern Domestic Electrical Services Ltd; Cummins v Shell International Manning Services Ltd CA 3-Jul-2002
In each case, the applicant sought to argue that documents which had actually been received on a certain date should not be deemed to have been served on a different day because of the rule.
Held: The coming into force of the Human Rights Act . .
Cited – Wilkey and Another v British Broadcasting Corporation and Another CA 22-Oct-2002
The applicant’s claim had been dismissed for late service. The defendant had in fact received the documents, but the service appeared deemed to be out of time. The subsequent decisions of Anderton and Godwin meant that the judge’s reasoning no . .
Cited – Cranfield and Another v Bridgegrove Ltd; Claussen v Yeates etc CA 14-May-2003
In each case claims had been late in being served and extensions in time were sought and refused.
Held: The recent authorities were examined. The words ‘has been unable to serve’ in CPR 7.6(3)(a) include all cases where the court has failed to . .
Cited – Cranfield and Another v Bridgegrove Ltd; Claussen v Yeates etc CA 14-May-2003
In each case claims had been late in being served and extensions in time were sought and refused.
Held: The recent authorities were examined. The words ‘has been unable to serve’ in CPR 7.6(3)(a) include all cases where the court has failed to . .
Cited – Margaret Brennan v Bolt Burdon, London Borough of Islington, Leigh Day and Co QBD 30-Oct-2003
The claimant had sought relief for the injury to her health suffered by condition of her flat. The legal advisers had settled the matter, thinking that the claim had not been timeously served. The defendant appealed an order that the compromise was . .
Cited – Basil Shiblaq v Kahraman Sadikoglu (No 2) ComC 30-Jul-2004
The court considered whether there had been effective service of proceedings on defendants in Turkey. Evidence was given as to the effectiveness of such service in Turkish law.
Held: The defendant’s application to set aside the judgment in . .
Cited – Brennan v Bolt Burdon and Others, London Borough of Islington, Leigh Day and Co CA 29-Jul-2004
The claimant sought damages for injury alleged to have been suffered as tenant of a house after being subjected to carbon monoxide poisoning, and also from her former solicitors for their delay in her claim. The effective question was whether the . .
Cited – Asia Pacific (Hk) Ltd. and others v Hanjin Shipping Co Ltd (Hanjin Pennsylvania) ComC 7-Nov-2005
Various cargo owners sought damages against the owners of the ship which had suffered an explosion with the loss of the cargo. The defendants asserted limitation. Some claimants had agreed an extension of time. Proceedings were then issued but . .
Cited – Floyd and Another v Legal Services Commission QBD 28-Apr-2010
The claimant had succeeded in an action against her legally aided opponent, but then delayed in making her claim for costs against the respondent. The costs judge said that the CPR did not apply, and that he had no discretion to extend the time . .
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 – Kamali v City and Country Properties Ltd CA 24-Jul-2006
The defendant tenant appealed against judgment saying that the proceedings in the County Court had not been correctly served. Though the documents had been sent to his address under the lease, he had been out of the jurisdiction when the claim was . .
Lists of cited by and citing cases may be incomplete.

Limitation, Civil Procedure Rules, Personal Injury, Limitation

Updated: 04 June 2022; Ref: scu.166544

Stubbings and Others v The United Kingdom: ECHR 22 Oct 1996

There was no human rights breach where the victims of sex abuse had been refused a right to sue for damages out of time. The question is whether and to what extent differences in otherwise similar situations justify a different treatment in law: ‘Limitation periods in personal injury cases are a common feature of the domestic legal systems of the Contracting States. They serve several important purposes, namely to ensure legal certainty and finality, protect potential defendants from stale claims which might be difficult to counter and prevent the injustice which might arise if courts were required to decide upon events which took place in the distant past on the basis of evidence which might have become unreliable and incomplete because of the passage of time.’
The Court considered the positive duty falling on states to protect against child abuse: ‘Sexual abuse is unquestionably an abhorrent type of wrongdoing, with debilitating effects on its victims. Children and other vulnerable individuals are entitled to state protection, in the form of effective deterrence, from such grave types of interference with essential aspects of their private lives.’

Citations:

Times 24-Oct-1996, (1996) 23 EHRR 213, [1996] ECHR 44, 22083/93, 22095/93

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 6.1

Citing:

Appeal from – Stubbings v Webb and Another HL 10-Feb-1993
Sexual Assault is not an Act of Negligence
In claims for damages for child abuse at a children’s home made out of the six year time limit time were effectively time barred, with no discretion for the court to extend that limit. The damage occurred at the time when the child left the home. A . .

Cited by:

Cited – Matthews v Ministry of Defence HL 13-Feb-2003
The claimant sought damages against the Crown, having suffered asbestosis whilst in the armed forces. He challenged the denial to him of a right of action by the 1947 Act.
Held: Human rights law did not create civil rights, but rather voided . .
Appealed to – Stubbings v Webb and Another HL 10-Feb-1993
Sexual Assault is not an Act of Negligence
In claims for damages for child abuse at a children’s home made out of the six year time limit time were effectively time barred, with no discretion for the court to extend that limit. The damage occurred at the time when the child left the home. A . .
Cited – A v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL 16-Dec-2004
The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they . .
Cited – Adamson v United Kingdom ECHR 1999
The Court considered whether the notification requirements of the UK sex offenders’ registration scheme constitute a penalty for the purposes of Article 7 or infringed the applicant’s rights under Article 8.
Held: They did not. As to article . .
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 – A v Hoare QBD 14-Oct-2005
The defendant had been convicted and sentenced for the attempted rape of the claimant. He had subsequently won a substantial sum on the lottery, and she now sought damages. He replied that the action was statute barred being now 16 years old. The . .
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 – RJM, Regina (on the Application of) v Secretary of State for Work and Pensions HL 22-Oct-2008
The 1987 Regulations provided additional benefits for disabled persons, but excluded from benefit those who had nowhere to sleep. The claimant said this was irrational. He had been receiving the disability premium to his benefits, but this was . .
Cited – Times Newspapers Ltd (Nos. 1 And 2) v The United Kingdom ECHR 10-Mar-2009
The applicant alleged that the rule under United Kingdom law whereby each time material is downloaded from the Internet a new cause of action in libel proceedings accrued (‘the Internet publication rule’) constituted an unjustifiable and . .
Cited – F and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 21-Apr-2010
The defendants had been convicted and sentenced for offences which under the 2003 Act would mean that they stayed permanently on the Sex Offenders’ register without possibility of a review. The Secretary of State appealed aganst a finding that the . .
Cited – Matheson v Mazars Solutions Ltd EAT 16-Dec-2003
EAT Practice and Procedure – Application. The application had been presented timeously at the ET in Edinburgh, but was out of time when retransmitted to Glasgow. The tribunal had found the Edinburgh office to be . .
Lists of cited by and citing cases may be incomplete.

Limitation, Human Rights

Updated: 04 June 2022; Ref: scu.165444

Long v Tower Hamlets London Borough Council: ChD 29 Mar 1996

The landlord’s agents wrote to the proposed tenant offering a quarterly tenancy of the premises. The tenancy was to commence at a future date. The defendant endorsed the letter and returned it to say he would abide by the terms, and he was allowed into possession. He ceased to pay rent, and eventually came to claim that he had acquired the freehold by adverse possession.
Held: The appropriate limitation period of twelve years ran from the date of the accrual of the right of action. The landlord said that, as a lease in writing, time ran only from the date of a notice to quit. The tenant said no lease in writing existed unless it was dispositive, ie a document creating a leasehold estate. The document was not executed as a deed, and could only create a legal estate if it fell within s54(2) of the 1925 Act. Since it did not take affect in possession, it was reversionary and could not fall within the exception. A tenancy for less than three years but without immediate possession being taken must be by deed: ‘there was no ‘lease in writing’ for the purposes of paragraph 5(1) if the writing, however comprehensively set out and clearly referable to the existence of a new lease, was merely evidential. If there was to be a ‘lease in writing’ the writing itself had to ‘pass an interest’ and ‘operate a lease’ or ‘create an estate.’ and ‘Reversionary lease conferring no immediate right to take possession were altogether excluded form the ambit of section 54(2) of the 1925 Act. Such reversionary leases could take effect only if made by deed. Therefore the tenancy which undoubtedly came into existence was not one created by the tenancy document but rather one which arose by operation of law, by the payment and receipt of rent.’ The action was arguable and should be allowed to proceed.

Judges:

James Munby QC

Citations:

Times 29-Mar-1996, [1996] 2 All ER 683

Statutes:

Law of Property Act 1925 54(2), Limitation Act 1980 Sch1 p5(1)

Jurisdiction:

England and Wales

Citing:

Cited – Doe d. Landsell v Gower 1851
The tenant was let into parochial property by the parish officers making an entry in the vestry book ‘We the churchwardens and overseers of P., do hereby agree to let to JB of . . . The newly erected cottage . . Situate . . . At the rent of 1s 6d . .
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 . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Limitation

Updated: 04 June 2022; Ref: scu.83180

Goomti Ramnarace v Harrypersad Lutchman: PC 21 May 2001

(Trinidad and Tobago) The defendant had gone into possession of land by consent, and many years later declined to leave. The claimant said the period of her adverse possession was insufficient but she claimed a tenancy. The claimant asserted that she had gone into possession as a licensee, and that the limitation period could not commence until her licence was terminated. Adverse possession is possession inconsistent with and in denial of the title of the true owner. A person cannot be a tenant at will where it appears that there was no intention to create legal relations, and she must be taken to have entered into possession of the disputed land in July 1974 as an intending purchaser and as a tenant at will. That tenancy expired after one year, when the limitation period commenced. Her claim succeeded.

Judges:

Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Millett, Lord Scott of Foscote

Citations:

[2001] UKPC 24, No 8 of 2000

Links:

Bailii, PC, PC

Statutes:

Real Property Limitation Ordinance 1940

Citing:

Cited – Heslop v Burns CA 1974
The defendants had lived in a house rent free for a long period. After the owner died, his executors sought possession saying the defendants were mere licencees. The defendants claimed a tenancy at will, and that the right now asserted was statute . .
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 . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation, Commonwealth

Updated: 04 June 2022; Ref: scu.163293

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 use its discretion to extend the period so as to allow the second action.
Held: Even if the first action could and would have been struck out for want of prosecution, Mr Walkley was entitled to seek an extension under section 2D in the second action and it was not possible to conclude on the material before the court that his application was bound to fail. (Waller LJ dissenting in part)

Judges:

Megaw LJ, Shaw LJJ, Waller LJ

Citations:

[1978] 1 WLR 1228

Jurisdiction:

England and Wales

Cited by:

Appeal from – 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 – 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 – 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 . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Limitation

Updated: 03 June 2022; Ref: scu.242524

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 under s20. The Society said that the debt was a judgment debt which was no longer due under s20, but was now and action on a speciality under s8, for which the limitation period is also 12 years, but the date from which it commenced differed.
Held: The lender’s appeal was dismissed. Putting aside actions for the recovery of land, where questions of title are involved, English law attributes periods of limitation by reference to the cause of action which the claimant seeks to enforce. Lord Hoffmann: ‘ordinarily time will run from the moment when the cause of action designated by the appropriate rule has arisen. It would be strange if the lender could then stop time running by his own act in exercising the power of sale. If, therefore, the cause of action when it arose was a claim to a debt secured on a mortgage, I do not think section 20 ceases to apply when the security is subsequently realised.’ The deed provided that until an event of breach occurred, the power of sale might not be exercised, and the money was not repayable. On this basis the cause of action would have arisen under either section more than 12 years before the action.

Judges:

Lord Hoffmann, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Carswell

Citations:

[2005] 1 WLR 2303, Times 04-Jul-2005, [2005] UKHL 44

Links:

Bailii, House of Lords

Statutes:

Limitation Act 1980 20(1) 8(1)

Jurisdiction:

England and Wales

Citing:

Cited – Hopkinson and Others and Birmingham Mid-Shires Building Society v Tupper CA 30-Jan-1997
The plaintiffs appealed from an order striking out their claim for want of prosecution. The defendant’s property had been sold by the mortgagees, and the plaintiffs as assignees of their debt sought to recover the balance outstanding from the . .
Appeal from – Wilkinson and Another v West Bromwich Building Society CA 30-Jul-2004
The Society had repossessed and sold the mortgagors’ house in 1990. It knew then that there was a shortfall, but took no further recovery proceedings until 2002. What was the date from which the relevant limitation period began to run? Though the . .
Cited – Global Financial Recoveries Ltd v Jones ChD 13-Jan-2000
The defendant entered into a mortgage loan. The property was repossessed and he faced an action for recovery of the shortfall. It was argued that the claim was out of time after six years. The court held that the debt remained a specialty debt and . .
Cited – Scottish Equitable Plc v Thompson and Another CA 6-Feb-2003
The mortgage deed, which was a second mortgage, did not contain any express covenant to repay the principal sum, but only for monthly interest instalments with no element of capital repayment, since the principal was to be paid from an insurance . .
Approved – Bristol and West plc v Bartlett and Another; Paragon Finance plc v Banks; Halifax plc v Grant CA 31-Jul-2002
The defendants resisted claims by lenders for the payment of mortgage debts. In each case the lender had exercised the power of sale before issuing proceedings for possession. The defendants queried the limitation period applicable.
Held: The . .
Cited – 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 . .
Cited – 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 . .

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 – Littman and Another v Aspen Oil (Broking) Ltd CA 19-Dec-2005
A lease had been granted with a break clause, which the tenant exercised. The Landlord said it had not complied with its obligations and was not free to exercise that clause. The clause had included the word ‘landlord’ where it should have read . .
Cited – KPMG Llp v Network Rail Infrastructure Ltd ChD 31-Jan-2006
. .
Cited – Bradford and Bingley Plc v Rashid HL 12-Jul-2006
Disapplication of Without Prejudice Rules
The House was asked whether a letter sent during without prejudice negotiations which acknowledged a debt was admissible to restart the limitation period. An advice centre, acting for the borrower had written, in answer to a claim by the lender for . .
Cited – Sigma Finance Corporation, Re; (in administrative receivership) SC 29-Oct-2009
The court considered how the losses of the insolvent company were to be distributed as between secured creditors and preferential creditors, given the terms of the applicable trust deed.
Held: The court considered the interpretations of the . .
Lists of cited by and citing cases may be incomplete.

Limitation, Land

Updated: 02 June 2022; Ref: scu.228064

Richard Jonathan Brett Guise v John Drew: ChD 8 Jun 2001

A right of way had been acquired by prescription, but its extent was disputed. It had been used for mainly residential purposes, but then to a greater extent for a different business use.
Held: A right of way may be for one purpose, to the exclusion of others. It is a question of fact whether a right of way is for a limited purpose or purposes, or is a general right for all purposes. A right of way for a defunct family business cannot be enlarged into a right of way for business generally.

Judges:

His Honour Judge Bowsher Q.C.

Citations:

[2001] EWHC Ch 410

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Cowling v Higginson 1838
A right of way may be for one purpose to the exclusion of other purposes. It is a question of fact on the evidence whether a right of way is for a limited purpose or purposes or is a general right for all purposes. . .
Cited – Williams v James 1867
A right of way had been granted over the plaintiff’s land for the benefit of ‘Nine acre field’ in its ordinary use as a field. Hay grown on both Nine acre field and the adjoining ‘Parrott’s land’ had been mowed and stored on Nine acre field in the . .
Cited – British Railways Board v Glass CA 1965
An easement arising by prescription involves a fictional lost grant. The court considered the extent of user of an easement in relation to a prescriptive right of way for the benefit of land used as a caravan site: ‘A right to use a way for this . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 01 June 2022; Ref: scu.160103

London Borough of Lambeth v Blackburn: CA 14 Jun 2001

The appellant had broken into an empty council owned flat, and subsequently occupied it. After twelve years the authority obtained a court order for possession. The court had held that the appellant had not had a sufficient animus possidendi since he had not at any time expected to live there for as more than a temporary expedient. He succeeded on appeal. The tenant had removed a padlock and provided his own Yale lock. Any inspection would have revealed an intention to assert ownership against the world. That he would have negotiated with the council if they had contacted him was not enough to defeat the claim. There was nothing in the appellants evidence to contradict the assertion of possession.
Clarke LJ said: ‘It is not perhaps immediately obvious why the authorities have required a trespasser to establish an intention to possess as well as actual possession in order to prove the relevant adverse possession. It seems to me that the answer lies in the fact that the possession must be adverse, that is adverse to the interest of the paper owner. It can only be adverse if the possession is apparent to the owner; that is, if it is manifest to the owner that the trespasser intends to maintain possession against the whole world including the owner. That does not mean that it must in fact be known to the owner, but that it must be manifested to him so that, if he were present at the property he would be aware that the trespasser had taken possession of it and had intended to keep others out.’ and
‘It is thus of crucial importance that the trespasser’s acts must be unequivocal. They must make it clear to the owner, if present at the land, that he intended to exclude the owner, as Slade J put it ‘as best he can” and ‘I would not for part think it appropriate to strain to hold that a trespasser who had established factual possession of the property for the necessary 12 years did not have the animus possidendi identified in the cases. I express that view for two reasons. The first is that the requirement that there be a sufficient manifestation of the intention provides protection for landowners and the second is that once it is held that the trespasser has factual possession it will very often be the case that he can establish the manifested intention.’

Judges:

Lord Justice Clarke, Lord Justice Judge, Lord Justice Laws

Citations:

Gazette 21-Jun-2001, [2001] EWCA Civ 912, (2001) 82 P and CR 494

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Grant of Leave – London Borough of Lambeth v Blackburn CA 10-Apr-2001
Renewed application for leave to appeal – granted. . .
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 by:

Full Appeal – London Borough of Lambeth v Blackburn CA 10-Apr-2001
Renewed application for leave to appeal – granted. . .
Cited – Topplan Estates Ltd v David Townley CA 27-Oct-2004
The registered proprietor of land appealed a finding that the defendant had established adverse possession of their land. The claimant had occupied it as part of his farm. Originally there had been a grazing tenancy. The tenancy was terminated, and . .
Cited – Inglewood Investments Company Ltd v Baker CA 8-Nov-2002
The court considered a claim for the adverse possesion of land.
Held: Dyson LJ said: ‘to establish a claim of adverse possession for the requisite period of 12 years it is necessary to establish: (1) actual possession; (2) an intention to . .
Cited – Smith, Regina (on the Application of) v The Land Registry (Peterborough Office) Admn 13-Feb-2009
The applicant sought judicial review of the cancellation of his application for first registration of land by adverse possession. The application had been rejected because a public right of way existed through it, and the claimant had not shown the . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 01 June 2022; Ref: scu.160096

Regina (on the application of Beresford) v The City of Sunderland: CA 26 Jul 2001

Local inhabitants requested the alteration of the Town and Village Green register to include land over which they claimed use as of right for more than twenty years. The difference between acquiescence, which would allow the claim, and tolerance or permission which would defeat it is the presence of some positive act of consent. As well as explicit oral or written consent, it might be inferred from the owner’s acts. In this case, the grass had continued to be cut, and seating had been provided. It could only have been seen as a recreational area provided for the public. The use was by consent, and the land was not to be registered.

Judges:

Lord Justice Dyson, Lord Justice Latham, Mr Justice Wilson

Citations:

Times 29-Aug-2001, Gazette 13-Sep-2001, [2001] EWCA Civ 1218, [2002] QB 874

Links:

Bailii

Statutes:

Commons Registration Act 1965 13 22(1)

Jurisdiction:

England and Wales

Citing:

Appeal From – Regina v City of Sunderland, ex parte Beresford Admn 14-Nov-2000
A recreational area was claimed to be a common. The council considered that there was evidence, which it accepted, of an implied licence, thus enabling the inference to be drawn that the use by local inhabitants for statutory purposes had not been . .

Cited by:

Appealed To – Regina v City of Sunderland, ex parte Beresford Admn 14-Nov-2000
A recreational area was claimed to be a common. The council considered that there was evidence, which it accepted, of an implied licence, thus enabling the inference to be drawn that the use by local inhabitants for statutory purposes had not been . .
Appeal from – Regina v City of Sunderland ex parte Beresford HL 13-Nov-2003
Land had been used as a park for many years. The council land owner refused to register it as a common, saying that by maintaining the park it had indicated that the use was by consent and licence, and that prescription did not apply.
Held: . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 01 June 2022; Ref: scu.159911

Sze To Chun Keung v Kung Kwok Wai David and Lam Chak Man Estate Limited: PC 27 Jun 1997

(Hong Kong) The respondents were registered owners of land occupied by the appellant who claim title by adverse possession after entry in 1955. Subsequently the claim resided with the Crown.
Held: ‘on the facts as pleaded, the land has been continuously in adverse possession since 1955 and that the plaintiffs’ title was extinguished in about 1975. To all outward appearances, there was no change in possession throughout the period and the licensing arrangements between the defendant and a third party, the Crown, did not affect the adverse nature of the possession as against the plaintiffs. At the time when proceedings were commenced, the defendant had been in possession on his own account for only two years. But this does not matter: the Limitation Ordinance is not concerned with whether the defendant has acquired a title but with whether the plaintiffs’ right of action has been barred. For this purpose, all that matters is that there should have been continuous adverse possession for the period of limitation. The rights inter se of the successive persons who may have been in possession adversely to the plaintiffs since they were dispossessed are for this purpose irrelevant.’

Judges:

Lord Goff of Chieveley, Lord Slynn of Hadley, Lord Lloyd of Berwick, Lord Hoffmann, Lord Hutton

Citations:

[1997] 1 WLR 1232, [1997] UKPC 35

Links:

Bailii

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 by:

Cited – Roberts v Swangrove Estates Ltd and Another ChD 14-Mar-2007
The court heard preliminary applications in a case asserting acquisition of land by adverse possession, the land being parts of the foreshore of the Severn Estuary.
Held: A person may acquire title to part of the bed of a tidal river by . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Land, Limitation

Updated: 01 June 2022; Ref: scu.159246

Srimati Bibhabati Devi v Kumar Ramendra Narayan Roy and Others: PC 30 Jul 1946

(Bengal) The appellant sought to claim a substantial inheritance. From many years before it had been thought that he had been buried after dying of syphilis. He claimed he had been resuscitated, taken away and brought up by sanyasi. His identity appeared to be subsequently accepted. The committee could not reverse a finding of fact save in the case of a manifest blunder by the lower court, or where there were concurrent and contradictory findings of separate lower courts, or in exceptional cases. The court should be careful to respect the traditions and systems of the countries from which appeal was made. The appellant had been in possession of the estate for many years. However in Hindu law, her possession could not be adverse to that of her husband even though he might be presumed to be dead.
Held: The Board will only in exceptional circumstances review evidence for a third time. Exceptional circumstances might include a miscarriage of justice or violation of a principle of law or procedure: ‘That miscarriage of justice means such a departure from the rules which permeate all judicial procedure as to make that which happened not in the proper sense judicial procedure at all. That the violation of some principle of law or procedure must be such an erroneous proposition of law that if that proposition be corrected the finding cannot stand; or it may be the neglect of some principle of law or procedure, whose application will have the same effect. The question whether there is evidence on which the courts could arrive at their finding is such a question of law.’

Judges:

Lord Thankerton, Lord du Parcq, Sir Madhavan Nair

Citations:

[1946] AC 508, [1946] UKPC 1

Links:

Bailii, PC

Citing:

Cited – Mudhoo Soodun Sundial v Suroop Chunder Sirkar Chowdry PC 1849
‘Both the Courts below have decided against the validity of the instrument; a fact which, considering the advantages the Judges in India generally possess, of forming a correct opinion of the probability of the transaction, and in some cases of the . .
Cited – Naragunty Lutchmeedavamah v Vengama Naidoo PC 1861
The Board restated its power to reconsider all points including the facts of an appeal brought before it. . .
Cited – Tareeny Churn Bonnerjee v Maitland 1867
When hearing a cae, the Board may itself reconsider the whole case including the evidence. . .

Cited by:

Cited – Mak v Wocom Commodities Limited PC 11-Nov-1996
(Hong Kong) The appellant had placed foreign exchange transactions with the respondents. He claimed that they were acting as his agents, and claimed that they had made undisclosed profits. They claimed to have been acting as principals. He now . .
Cited – Gilrose Finance Limited v Ellis Gould PC 23-Mar-2000
PC (New Zealand) An investor had agreed to invest in a tour by a sports star. The tour failed, and the propmeter turned out to have criminal convictions for dishonesty. He had asked his solicitor to look into the . .
Cited – Lewis v Henry St Hillaire and others PC 22-May-1996
(Saint Vincent and The Grenadines) A writ was issued, but little progress was made. The respondent applied for a declaration that the action had been abandoned and was incapable of being revived.
Held: The provision was one local to the home . .
Cited – Kwasi Bekoe v Horace Broomes PC 31-Oct-2005
PC (Trinidad and Tobago) The appellant defendant was an attorney-at-law, and the respondent a senior magistrate who was said to have accused the claimant of having given a bribe. The appellant challenged the . .
Cited – Marshall and Others v Deputy Governor of Bermuda and Others PC 24-May-2010
marshall_dgPC10
(Bermuda) The claimants challenged their recruitment by conscription to the Bermuda Regiment on several different grounds. The issues now were whether conscription was lawful only where volunters were insufficient, and whether the acceptance of . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Wills and Probate, Limitation, Commonwealth

Updated: 31 May 2022; Ref: scu.159146

Collier v John Neville Creighton and others: PC 8 May 1996

(New Zealand) The plaintiff sought damages for breach of a fiduciary duty by his solicitors. They responded that his claim was out of time. The judge had found an equitable fraud, and therefore time did not begin to run until it was discovered.
Held: The Appeal court had been correct in finding that the solicitor had disclosed his interest in the matter, and that therefore time began running then, and the claim was now barred.

Citations:

[1996] UKPC 7

Links:

Bailii

Commonwealth, Limitation

Updated: 31 May 2022; Ref: scu.159163

Chung Ping Kwan and others v Lam Island Development Company Limited: PC 8 Jul 1996

(Hong Kong) Various provisions had been made for the termination of long leases in Hong Kong. Land had come to be occupied by adverse possession. At first instance the judge had given judgment against the squatters, but then retracted after a later court of appeal decision. The Court of Appeal re-instated the first order.
Held: The squatter against a leasehold title could acquire only a title equivalent to that of the leasehold interest. When a squatter on land held under a renewable lease is sued and pleads a limitation defence, the lessee is unable to respond by relying upon the (deemed) new lease as a new title setting time running afresh.

Judges:

Lord Keith of Kinkel Lord Jauncey of Tullichettle Lord Nicholls of Birkenhead Lord Steyn Sir Christopher Slade

Citations:

Times 16-Jul-1996, [1996] UKPC 23

Links:

Bailii

Citing:

Approved – Taylor v Twinberrow 1930
It was a misunderstanding of the legal effect of 12 years adverse possession under the Limitation Acts to treat it as if it gave a title: ‘the operation of the statute in giving a title is merely negative; it extinguishes the right and title of the . .
Distinguished – St Marylebone Property Co Ltd v Fairweather HL 16-Apr-1962
To defeat a defence of adverse possession, the plaintiff must succeed in an action which itself had been commenced within the twelve year period. A squatter does not succeed to the title that he has disturbed: by sufficiently long adverse possession . .
Cited – Bree v Scott 1904
(Supreme Court of Victoria) The defendant squatted from 1878 upon land allotted to her mother as Crown licensee. A Crown licensee was entitled to acquire the fee upon performance of obligations in the licence. In 1885 a Crown grant was duly issued . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Limitation, Landlord and Tenant

Updated: 31 May 2022; Ref: scu.159181

Disley v Levine (T/a Airtrak Levine Paragliding): CA 11 Jul 2001

The claimant sought damages from her instructor, after being injured as a passenger trainee pilot of a paraglider. He responded that she was out of time, since the regulations applied. His appeal was refused. The system of regulation did not mention or encompass paragliders. No certificate of air-worthiness or air operator’s certificate was required. The objective of the flight was instruction, not passage.

Judges:

Henry LJ

Citations:

Times 29-Aug-2001, Gazette 31-Aug-2001, [2001] EWCA Civ 1087, [2002] 1 WLR 785

Links:

Bailii

Statutes:

Carriage by Air Acts (Application of Provisions) Order 1967 No 480, Warsaw Convention for the Unification of Certain Rules regarding International Air Transport 1929, Civil Aviation Act 1982

Jurisdiction:

England and Wales

Citing:

Appeal from – Norma J Disley v Marc Levine QBD 9-Nov-2000
A trainee paraglider pilot was injured, and claimed against the instructor. He replied that her claim was out of time as a passenger of an air transport undertaking. The court held that his activities did not fall within the concepts of the . .
Cited – Holmes v Bangladesh Biman Corporation HL 1989
Mr Holmes was killed when the defendant’s aircraft in which he was a passenger crashed on a domestic flight in Bangladesh. As a domestic flight, it was not international carriage. The proper law of the contract was undoubtedly Bangladeshi law. Under . .

Cited by:

Cited – Laroche v Spirit of Adventure (UK) Ltd CA 21-Jan-2009
Hot Air balloon was an aircraft: damages limited
The claimant was injured flying in the defendant’s hot air balloon. The defendant said that the journey was covered by the 1967 Regulations and the damages limited accordingly. The claimant appealed against a decision that the balloon was an . .
Lists of cited by and citing cases may be incomplete.

Transport, Personal Injury, Limitation

Updated: 31 May 2022; Ref: scu.147614

Steeds v Peverel Management Services Limited: CA 30 Mar 2001

Where it was not the claimant’s fault that proceedings had not been issued within the appropriate time limit, the judge when considering exercise of his discretion to admit the claim, should not be tempted to refuse to admit it on the basis that the claimant would have a clear claim for negligence against the solicitor who should have issued the proceedings. The judge was wrong to seek to distinguish the case and deny that the delay at issue related to periods only after the expiration of the limitation period. The judge had been wrong to conclude that the Civil Procedure rules required the claimant to have issued proceedings much earlier, since those rules could only affect the conduct of proceedings once they had been issued.

Citations:

Times 16-May-2001, [2001] EWCA Civ 419

Links:

Bailii

Statutes:

Limitation Act 1980 33(3)(a)

Jurisdiction:

England and Wales

Limitation, Personal Injury, Litigation Practice, Professional Negligence

Updated: 31 May 2022; Ref: scu.147490