Category: Limitation

Kathleen Magaret Oakes v Mr P W Hopcroft: CA 27 Jul 2000

The claimant needed correct medical advice and legal advice before she knew that she had settled her original personal injury claim at too low a figure.

Citations:

[2000] EWCA Civ 237, [2000] Lloyd’s Rep Med 394

Links:

Bailii

Statutes:

Limitation Act 1980 14A

Jurisdiction:

England and Wales

Cited by:

Cited – Haward and others v Fawcetts HL 1-Mar-2006
The claimant sought damages from his accountants, claiming negligence. The accountants pleaded limitation. They had advised him in connection with an investment in a company which investment went wrong.
Held: It was argued that the limitation . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Limitation

Updated: 31 May 2022; Ref: scu.147270

Sniezek v Bundy (Letchworth) Limited: CA 7 Jul 2000

The claimant appealed against a finding that having once already issued a claim, a second claim was out of time, not accepting that she had had the knowledge effective to commence the limitation period.
Held: Judge LJ had ‘difficulty in perceiving how in any case where a claimant has sought advice and taken proceedings, it can rightly be held that the claimant had not then had relevant knowledge’.

Judges:

Simon Brown, Judge LJJ, Bell J

Citations:

[2000] EWCA Civ 212, [2000] PIQR P213

Links:

Bailii

Statutes:

Limitation Act 1980 11 33

Jurisdiction:

England and Wales

Cited by:

Cited – Ministry of Defence v AB and Others SC 14-Mar-2012
The respondent Ministry had, in 1958, conducted experimental atmospheric explosions of atomic weapons. The claimants had been obliged as servicemen to observe the explosions, and appealed against dismissal of their claims for radiation sickness . .
Lists of cited by and citing cases may be incomplete.

Limitation, Personal Injury

Updated: 31 May 2022; Ref: scu.147245

Gregson v Channel Four Television Corporation: CA 11 Jul 2000

It was possible to amend pleadings outside of the limitation period, where the alteration to identify the correct party was genuine and the mistake had not mislead any party. In this case there was no reasonable doubt about who had been intended to be sued. The overriding objective and rule 17.4(3) could either be applied to allow the amendment.

Citations:

Times 24-Aug-2000, [2000] EWCA Civ 214

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Gregson v Channel Four Television Corporation CA 4-Jul-2002
Whether trial before jury appropriate . .

Cited by:

See Also – Gregson v Channel Four Television Corporation CA 4-Jul-2002
Whether trial before jury appropriate . .
Cited – Morgan Est (Scotland) Ltd v Hanson Concrete Products Ltd CA 17-Feb-2005
The defendant appealed an order adding two new claimants.
Held: Cases decided under the old RSC were not apposite for matters covered by the new Civil Procedure Rules. The court was not bound by the Sardinia Sulcis rules: ‘The Sardinia Sulcis . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Limitation

Updated: 31 May 2022; Ref: scu.147247

Companhia De Seguros Imperio v Heath (REBX) Ltd and Others: CA 20 Jul 2000

Although a claim for breach of fiduciary duty, as a claim in equity, was not subject to the same limitation periods imposed by the Act as claims in tort or contract, a court exercising an equitable jurisdiction should apply similar periods under the equitable principle of acquiescence. A six year limitation period should be applied by analogy to a claim for equitable compensation for dishonest breach of fiduciary duty by an underwriter. Claims against the underwriter in contract and tort based on the same facts were statute barred under sections 2 and 5 of the 1980 Act. More than six years had expired since the accrual of the cause of action. The analogy of the six year time limit for claims in contract and tort would have been applied by a court of equity before 1 July 1940 to the claim for breach of fiduciary duty.

Judges:

Waller LJ

Citations:

Times 26-Sep-2000, [2001] 1 WLR 112, [2000] EWCA Civ 219

Links:

Bailii

Statutes:

Limitation Act 1980 2 5

Jurisdiction:

England and Wales

Citing:

Appeal from – Companhia De Seguros Imperio v Heath (Rebx) Ltd and others ComC 30-Mar-1999
ComC Insurer/reinsurer claimed damages from brokers for breach of written binding authority agreements made in 1970s – claim in tort for breaches of fiduciary duties and of duties coextensive to those under the . .

Cited by:

Cited – DEG-Deutsche Investitions und Entwicklungsgesellschaft mbH v Koshy and Other (No 3); Gwembe Valley Development Co Ltd (in receivership) v Same (No 3) CA 28-Jul-2003
The company sought to recover damages from a director who had acted dishonestly, by concealing a financial interest in a different company which had made loans to the claimant company. He replied that the claim was out of time. At first instance the . .
Appealed to – Companhia De Seguros Imperio v Heath (Rebx) Ltd and others ComC 30-Mar-1999
ComC Insurer/reinsurer claimed damages from brokers for breach of written binding authority agreements made in 1970s – claim in tort for breaches of fiduciary duties and of duties coextensive to those under the . .
Cited – P and O Nedlloyd Bv v Arab Metals Co and others CA 13-Dec-2006
An order for specific performance had been refused in a disputed contract for carriage. The claimant argued that normal limitation periods should not be applied by analogy.
Held: Because there was no corresponding legal remedy the remedy in . .
Lists of cited by and citing cases may be incomplete.

Equity, Limitation

Updated: 31 May 2022; Ref: scu.147252

London Borough of Hillingdon v ARC Limited (No 2): CA 16 Jun 2000

The council entered upon land belonging to the company in accordance with the compulsory purchase procedures in 1982, but the company did not bring its claim for compensation until 1992. The council said the were out of time.
Held: Section 9 applies to claims for compensation for compulsory purchase. The mere fact that a party has continued to negotiate with the other party about the claim after the limitation period had expired, without anything being agreed about what happens if the negotiations break down, cannot give rise to a waiver or estoppel.

Judges:

Arden, Waller, Swinton Thomas

Citations:

[2000] 3 EGLR 97, [2000] EWCA Civ 191

Links:

Bailii

Statutes:

Limitation Act 1980 9, Compulsory Purchase Act 1965 11

Jurisdiction:

England and Wales

Citing:

See Also – London Borough of Hillingdon v ARC Limited CA 7-Apr-1998
The company sought compensation for land taken under compulsory purchase powers by the defendants several years before. It now appealed against the defeat of its claim as time-barred.
Held: The appeal failed. The limitation period for a claim . .

Cited by:

Cited – BP Oil UK Ltd v Kent County Council CA 13-Jun-2003
BP sought compensation after its land had been acquired compulsorily. The council said its claim was time barred. BP appealed from the Lands Tribunal, saying an agreement with the Authority had kept its claim alive.
Held: The fact of entry did . .
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 . .
Cited – Legal Services Commission v Rasool CA 5-Mar-2008
The defendant had in 1993 obtained legal aid. Work was done but the certificate was then revoked. The Commission sought repayment of the sums paid on account to his solicitors. He replied that the claim was out of time. The Commission argued that . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation, Estoppel

Updated: 31 May 2022; Ref: scu.147224

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, by reference to irrelevant matters or in disregard of matters which ought to have been taken into account. or unless it was plainly wrong.’

Citations:

[2000] EWCA Civ 114, [2000] MLC 204

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Buckler v J F Finnegan Ltd CA 21-Jun-2004
The claimant sought damages for personal injuries after ingesting asbestos while employed as a joiner by the defendant. The defendant appealed an order allowing the claim to go ahead despite being out of time. . .
Lists of cited by and citing cases may be incomplete.

Negligence, Limitation

Updated: 31 May 2022; Ref: scu.147147

Lambert Parchment v Ford Motor Company Limited: CA 26 Jul 1999

The claimant sought to bring a claim for race discrimination some 13 years after leaving the defendant’s employment.
Held: This was an appeal against the exercise of a discretion. There had been no misdirection, and the appeal had no prospects of success.

Citations:

[1999] EWCA Civ 1965

Links:

Bailii

Jurisdiction:

England and Wales

Discrimination, Limitation

Updated: 31 May 2022; Ref: scu.146880

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 necessary for the purpose of extending the limitation period pursuant to Section 32(1)(b) to demonstrate that the fact relevant to the claimant’s right of action has been deliberately concealed in any sense greater than that the commission of the act was deliberate in the sense of being intentional and that that act or omission, as the case may be, did involve a breach of duty whether or not the actor appreciated that legal consequence.’

Citations:

[1999] EWCA Civ 1797, [2002] 1 WLR 598, [2001] 1 All ER 172

Links:

Bailii

Statutes:

Limitation Act 1980 32(2)

Jurisdiction:

England and Wales

Citing:

Cited – King v Victor Parsons CA 1973
Lord Denning MR discussed the meaing of ‘fraud’ in the section: ‘The word ‘fraud’ is not used in the common law sense. It is used in the equitable sense to denote conduct by the defendant or its agent such that it would be ‘against conscience’ for . .

Cited by:

Overruled – 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 – 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 – 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 . .
Doubted – 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 – 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 . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Limitation

Updated: 30 May 2022; Ref: scu.146712

Timothy Ellis v London Borough of Lambeth: CA 9 Jul 1999

A squatter claiming possession of land as against a local authority should not have his claim defeated because he had not completed a form which would lead to payment of community charge to the authority. His possession was not thereby made secret, and nor did he represent that nobody was in occupation of the property. The failure to complete the form could not become an estoppel against the claimant.

Judges:

Lord Justice Swinton Thomas Mr Justice Wilson

Citations:

Times 28-Sep-1999, (1999) 32 HLR 596, [1999] EWCA Civ 1807

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Fung Kai Sun v Chang Fui Hing PC 1951
The manager of real property owned by the respondents had fraudulently mortgaged it. Following discovery of their manager’s fraud the respondents had delayed for three weeks before telling the purported mortgagees of the forgery, as a result of . .

Cited by:

Cited – Mayor and Burgesses of London Borough of Lambeth v George Bigden and Others CA 1-Dec-2000
A block of flats had been occupied over several years by a succession of squatters. The present occupiers appealed an order for possession, and the authority appealed refusal of possession for other flats. The occupiers asserted possessory title. . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 30 May 2022; Ref: scu.146722

Jones v Stones: CA 11 May 1999

No defence of acquiescence or estoppel arose from a failure by a land owner to pursue a complaint. Such a defence could only be established by some positive act of encouragement or allowance by him. The heart of the action lay in the allowance of a belief to develop as to the rightness of the position.

Judges:

Aldous LJ

Citations:

Times 03-Jun-1999, Gazette 03-Jun-1999, [1999] EWCA Civ 1379, [1999] 1 WLR 1749

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

per incuriam – Habib Bank Ltd v Habib Bank AG Zurich CA 1981
A combination of defences based on delay was pleaded in a passing off action objecting to the use of a name which the defendants had been using without objection for many years. A permanent injunction was claimed.
Held: Oliver LJ said as to . .
Cited – Gafford v A H Graham and Grandco Securities Limited CA 8-Apr-1998
A land owner who was aware of his rights under a restrictive covenant, and who stood by whilst a riding school was erected in breach of the covenant, was not later to be allowed injunctive mandatory relief to enforce the covenant, by virtue of his . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 30 May 2022; Ref: scu.146294

Das v Ganju: CA 31 Mar 1999

Where a personal injury action had been delayed for five years by bad advice from solicitors and counsel, the court’s discretion should be exercised to allow the plaintiff to proceed with her claim, not herself being responsible for the delay.
Sir Christopher Staughton (referring to Whitfield v Durham) said: ‘If that passage means that as a matter of law anything done by the lawyers must be visited on the client, it cannot in my view be reconciled with other authority. It appears to have been a concession which the court accepted. The other authority is Thomson v Brown [1981] 1 WLR 744 and the speech of Lord Diplock at 750 and 752, which I do not set out for fear of lengthening this judgment even further. I would also return to Halford v Brookes where again it is said that it is no reproach to the plaintiff that he has received the wrong legal advice.’

Judges:

Sir Christopher Staughton, Buxton LJ

Citations:

Times 04-May-1999, Gazette 12-May-1999, [1999] EWCA Civ 1152, [1999] Lloyd’s Rep Med 198, [1999] PIQR P260

Links:

Bailii

Statutes:

Limitation Act 1980 33

Jurisdiction:

England and Wales

Citing:

Doubted – Whitfield v North Durham Health Authority CA 1995
In 1987, and before the claim was issued in 1992 the claimant had issued a claim which had never been served. She sought to extend the limitation period arguing that she had not acquired the requisite knowledge until later,
Held: She had had . .

Cited by:

Cited – Horton v Sadler and Another HL 14-Jun-2006
The claimant had been injured in a road traffic accident for which the defendant was responsible in negligence. The defendant was not insured, and so a claim was to be made against the MIB. The plaintiff issued proceedings just before the expiry of . .
Cited – Ministry of Defence v AB and Others SC 14-Mar-2012
The respondent Ministry had, in 1958, conducted experimental atmospheric explosions of atomic weapons. The claimants had been obliged as servicemen to observe the explosions, and appealed against dismissal of their claims for radiation sickness . .
Lists of cited by and citing cases may be incomplete.

Limitation

Updated: 30 May 2022; Ref: scu.146067

Rhiannon Anderton v Clwyd County Council (2): QBD 25 Jul 2001

The claim form had been issued only just before the limitation period expired. Under the rules it would have been deemed to have been served on a Sunday, the day before the expiry of the period, but evidence suggested it was not received until after the expiration of the period. The defendant argued there was insufficient evidence of the date of posting to bring into effect the deeming provisions as to the date of service. No certificate had been supplied under 6.14.
Held: There was no evidence as to the class of postage used, and no inference could be drawn that first class post had been used. The rules therefore deemed service out of time, as in fact had occurred. Nor would alternate service be ordered. This was a discretionary remedy, and the circumstances of this case did not justify it.

Judges:

The Honourable Mr Justice McCombe

Citations:

[2001] EWHC QB 161

Links:

Bailii

Statutes:

Civil Procedure Rules 6.7 6.14

Jurisdiction:

England and Wales

Citing:

See Also – Phelps v Hillingdon London Borough Council; Anderton v Clwyd County Council; Gower v Bromley London Borough Council; Jarvis v Hampshire County Council HL 28-Jul-2000
The plaintiffs each complained of negligent decisions in his or her education made by the defendant local authorities. In three of them the Court of Appeal had struck out the plaintiff’s claim and in only one had it been allowed to proceed.

Cited by:

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

Litigation Practice, Limitation, Civil Procedure Rules

Updated: 30 May 2022; Ref: scu.159917

A B and others v Liverpool City Council; Nugent Care Society (Formerly Catholic Social Services [Liverpool]) and Trustees of National Children’s Home and Orphanage Registered: CA 15 Jun 1998

Citations:

[1998] EWCA Civ 1000

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – McDonnell and Another v Walker CA 24-Nov-2009
The defendant appealed against the disapplication of section 11 of the 1980 Act under section 33.
Held: The appeal succeeded. The defendant had not contributed significantly to the delay: ‘the defendant received claims quite different in . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Litigation Practice, Limitation

Updated: 30 May 2022; Ref: scu.144479

London Borough of Hillingdon v ARC Limited: CA 7 Apr 1998

The company sought compensation for land taken under compulsory purchase powers by the defendants several years before. It now appealed against the defeat of its claim as time-barred.
Held: The appeal failed. The limitation period for a claim for a compensation payment runs from the date of the entry into possession of the land by the acquiring authority, even though compensation had not yet been set by the Lands Tribunal.
Potter LJ said that the answer to the question ‘When does a cause of action to recover a sum recoverable by virtue of any enactment accrue?’ is to be found in the proper construction of the statute giving the right to recover.
Nourse LJ said: ‘it is established by authority that a cause of action for a sum recoverable by virtue of an enactment ‘accrues’ notwithstanding that it remains to be quantified and, further, the quantification may have to be made by a tribunal other than a court of law.’

Judges:

Nourse, Potter, Mummery LJJ

Citations:

Gazette 20-May-1998, Times 04-May-1998, Gazette 16-Apr-1998, [1999] Ch 139, [1998] EWCA Civ 657, [1998] 3 EGLR 18, [1999] BLGR 282, [1998] 3 WLR 754, [1998] RVR 242, [1998] 39 EG 202

Links:

Bailii

Statutes:

Limitation Act 1980 9, Compulsory Purchase Act 1965 11

Jurisdiction:

England and Wales

Citing:

Appeal from – Hillingdon London Borough Council v ARC Ltd ChD 12-Jun-1997
The Council had taken possession of the company’s land under compulsory purchase powers, but the company delayed its claim for compensation, and the Council now said that the claim was time barred.
Held: The claim was indeed time barred. The . .

Cited by:

See Also – London Borough of Hillingdon v ARC Limited (No 2) CA 16-Jun-2000
The council entered upon land belonging to the company in accordance with the compulsory purchase procedures in 1982, but the company did not bring its claim for compensation until 1992. The council said the were out of time.
Held: Section 9 . .
Cited – Legal Services Commission v Henthorn QBD 4-Feb-2011
The claimant sought to recover overpayments said to have been made to the defendant barrister in the early 1990s. Interim payments on account had been made, but these were not followed by final accounts. The defendant, now retired, said that the . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 30 May 2022; Ref: scu.144135

Davies v Elsby Brothers Ltd: CA 1961

The writ was issued within the limitation period for the claim against ‘Elsby Brothers (a firm)’. In fact, the firm’s business had been taken over by Elsby Brothers Ltd before the proceedings had been issued. By the time the plaintiff applied for leave to amend the writ to change the name of the defendant, the limitation period had expired.
Held: The amendment involved the addition of a new defendant, and was not merely the correction of a misnomer. Accordingly, following long established rule of practice the court held that the amendment should not be allowed.

Citations:

[1961] 1 WLR 170

Jurisdiction:

England and Wales

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 – 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.

Litigation Practice, Limitation

Updated: 29 May 2022; Ref: scu.200225

Hydro Agri Espana SA (Owners of the Cargo Lately Laden on Board the Vessel Fairway, ex Celtic Commander) v Charles M Willie and Co (Shipping) Limited: CA 18 Feb 1998

A valid writ which had not been served because of pending foreign litigation, could not be extended in validity beyond the limitation period appropriate for that action.

Citations:

Times 05-Mar-1998, [1998] EWCA Civ 273

Jurisdiction:

England and Wales

Limitation, Transport

Updated: 29 May 2022; Ref: scu.143751

Spargo v North Essex District Health Authority: CA 13 Mar 1997

The test of ‘When a plaintiff became aware of the cause of an injury’ is a subjective test of what passed through plaintiff’s mind. ‘(1) the knowledge required to satisfy s14(1)(b) is a broad knowledge of the essence of the causally relevant act or omission to which the injury is attributable;
(2) ‘attributable’ in this context means ‘capable of being attributed to’, in the sense of being a real possibility;
(3) a plaintiff has the requisite knowledge when she knows enough to make it reasonable for her to begin to investigate whether or not she has a case against the defendant. Another way of putting this is to say that she will have such knowledge if she so firmly believes that her condition is capable of being attributed to an act or omission which she can identify (in broad terms) that she goes to a solicitor to seek advice about making a claim for compensation;
(4) on the other hand, she will not have the requisite knowledge if she thinks she knows the acts or omissions she should investigate but in fact is barking up the wrong tree; or if her knowledge of what the defendant did or did not do is so vague or general that she cannot fairly be expected to know what she should investigate; or if her state of mind is such that she thinks her condition is capable of being attributed to the act or omission alleged to constitute negligence, but she is not sure about this, and would need to check with an expert before she could be properly said to know that it was.’
This branch of the law is grossly overloaded with reported cases. The court set out four principles for testing such actions, distinguishing the more stringent test of proof of causation from the much less rigorous statutory test of attributability’ and ‘After all, the policy of Parliament, in these cases which would otherwise be statute-barred, is to give a plaintiff who has the requisite low level of knowledge three years in which to establish by inquiry whether the identified injury was indeed probably caused by the identified omission and whether the omission (identified initially in broad terms) amounted to actionable negligence. The judge’s approach would be to stop the three years from even starting to run until a much more advanced stage of the investigation had been completed.’

Judges:

Brooke, Nourse, Waller LJJ

Citations:

(1997) 37 BMLR 99, [1997] EWCA Civ 1232, [1997] 8 Med LR 125, [1997] PIQR 235

Links:

Bailii

Statutes:

Limitation Act 1980 14(1)(b)

Jurisdiction:

England and Wales

Citing:

Appeal from – Spargo v North Essex District Health Authority QBD 1996
A plaintiff’s knowledge that her injury could be attributed to hypoxia, is not knowledge that the injury is attributable to the act or omission alleged to constitute negligence as might be pleaded in a statement of claim and no ordinary plaintiff . .

Cited by:

Applied – Mirza v Birmingham Health Authority QBD 31-Jul-2001
The claimant had undergone heart surgery as an infant in 1976, and claimed damages for professional negligence. The procedure involved a dangerous procedure, a resection of coarctation. As a consequence, the Claimant suffered a number of problems . .
Cited – Graham v Entec Europe Ltd (T/A Exploration Associates) CA 6-Aug-2003
The claimant’s bungalow suffered subsidence. Repair works were undertaken as advised by the defendants, but unsuccessfully. The claimant’s insurers instructed experts negotiators to investigate with a view to a claim. The defendants now claimed the . .
Applied – O’Driscoll v Dudley Health Authority CA 30-Apr-1998
The plaintiff sought damages for the negligence of the respondent in her care at birth. Years later the family concluded that her condition was a result of negligence. They waited until she was 21, when they mistakenly believed that she became an . .
Cited – Roberts vWinbow (3) CA 4-Dec-1998
The plaintiff was treated for depression by the defendant by prescription of drugs. She sufferred a reaction, but now claimed that the doctor’s slow reaction caused her to suffer lasting injury. The question on appeal was, if a plaintiff suffers . .
Cited – Haward and others v Fawcetts HL 1-Mar-2006
The claimant sought damages from his accountants, claiming negligence. The accountants pleaded limitation. They had advised him in connection with an investment in a company which investment went wrong.
Held: It was argued that the limitation . .
Cited – Farraj and Another v King’s Healthcare NHS Trust and Another QBD 26-May-2006
The claimants sought damages after the birth of their child with a severe hereditary disease which they said the defendant hospital had failed to diagnose after testing for that disease. The hospital sought a contribution from the company CSL who . .
Cited – 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 – Ministry of Defence v AB and Others SC 14-Mar-2012
The respondent Ministry had, in 1958, conducted experimental atmospheric explosions of atomic weapons. The claimants had been obliged as servicemen to observe the explosions, and appealed against dismissal of their claims for radiation sickness . .
Cited – Collins v Secretary of State for Business Innovation and Skills and Others CA 23-May-2014
The claimant appealed against rejection of his claim for personal injury which had been rejected on basis that it was out of time. He had contracted cancer in 2002, but had recovered. He later came to attribute this to exposure to asbestos at work . .
Cited – Siddiqui v University of Oxford QBD 5-Dec-2016
The University applied to have struck out the claim by the claimant for damages alleging negligence in its teaching leading to a lower class degree than he said he should have been awarded.
Held: Strike out on the basis that the claim was . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Limitation, Personal Injury

Updated: 29 May 2022; Ref: scu.141628

Parsons v Warren and Another: CA 31 Jan 2002

Appeal from a judgment that the claim for damages for industrial disease, commenced by the respondent against the appellants had been brought by the respondent within three years of his date of knowledge for the purposes of section 11(4) and section 14 of the Limitation Act 1980, and that, in any event, he would override the primary limitation period under section 33 of the Act and permit the action to proceed. The appellants appeal both conclusions of the judge.

Citations:

[2002] EWCA Civ 130

Links:

Bailii

Jurisdiction:

England and Wales

Personal Injury, Limitation

Updated: 29 May 2022; Ref: scu.216734

Smith v Central Asbestos Co Ltd; Central Asbestos Co Ltd v Dodd: HL 1973

The House considered at what point an injured person was to be deemed to have become aware of his injury so as to start the limitation period.
Held: A majority rejected the proposition that knowledge of ‘material facts’ for section 1(3) purposes included knowledge that the defendant’s conduct entitled the plaintiff to a legal remedy.
Lord Reid said: ‘I agree with the view expressed in the Court of Appeal that this test is subjective. We are not concerned with ‘the reasonable man’. Less is expected of a stupid or uneducated man than of a man of intelligence and wide experience.’ As to the 1963 Act, it had ‘a strong claim to the distinction of being the worst drafted Act on the statute book’. And ‘So probably the key lies in the use of the word ‘attributable.’ That means capable of being attributed. ‘Attribute’ has a number of cognate meanings; you can attribute a quality to a person or thing, you can attribute a product to a source or author, or you can attribute an effect to a cause. The essential element is connection of some kind.’

Judges:

Lord Reid

Citations:

[1973] AC 518, [1972] 2 All ER 1135, [1972] 3 WLR 333, 13 KIR 75, [1972] 2 Lloyds Rep 413

Statutes:

Limtation Act 1963 7(3)

Jurisdiction:

England and Wales

Citing:

Appeal from – Smith v Central Asbestos Co Ltd CA 1971
Edmund-Davies LJ said of a report prepared by a committee of which had been chairman into ‘whether any alteration is desirable in the law relating to the limitation of actions in cases of personal injury where the injury or disease giving rise to . .

Cited by:

No longer good law – 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 – Haward and others v Fawcetts HL 1-Mar-2006
The claimant sought damages from his accountants, claiming negligence. The accountants pleaded limitation. They had advised him in connection with an investment in a company which investment went wrong.
Held: It was argued that the limitation . .
Cited – Ministry of Defence v AB and Others SC 14-Mar-2012
The respondent Ministry had, in 1958, conducted experimental atmospheric explosions of atomic weapons. The claimants had been obliged as servicemen to observe the explosions, and appealed against dismissal of their claims for radiation sickness . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Limitation

Updated: 29 May 2022; Ref: scu.200436

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 as of right.
Held: Time could not begin to run in the acquisition of rights of common where the exercise of the rights could have been founded on an implied licence. An implied licence has the same legal effect as an express licence. In the absence of an express permission, the court must ask whether a reasonable person with the knowledge available would have appreciated that the use was with the landowner’s acquiescence. ‘the fact that the land is in public ownership is plainly a relevant matter when one is considering what conclusion a reasonable person would draw from the circumstances of user. It is well known that local authorities do, as part of their normal functions, provide facilities for the use of the public and maintain them also at public expense. It is not part of the normal function of a private landowner to provide facilities for the public on the land. Public ownership of the land is plainly a relevant consideration.’ The claim to register must fail.

Judges:

Janet Smith J

Citations:

Times 16-Jan-2001, [2000] EWHC Admin 418, [2001] 1 WLR 1327

Links:

Bailii

Statutes:

Commons Registration Act 1965 22

Citing:

Appealed To – 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 . .

Cited by:

Appeal From – 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 . .
At First Instance – 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: . .
Approved – Barkas, Regina (on The Application of ) v North Yorkshire County Council and Another SC 6-Mar-2014
The Court was asked as to the registration of a playing field as a ‘town or village green’. Local residents asserted that their use of the land, having been ‘as of right’ required the registration. They now appealed against rejection of that . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 29 May 2022; Ref: scu.140234

Test Claimants In The Franked Investment Income Group Litigation v Inland Revenue: SC 23 May 2012

The European Court had found the UK to have unlawfully treated differently payment of franked dividends between subsidiaries of UK companies according to whether all the UK subsidiaries were themselves UK based, thus prejudicing European subsidiaries, breach of EU Treaty guarantees of freedom of establishment and of movement of capital. The court was now asked as to the calculation of damages. Two remedies might be available: a demand for repayment of tax unlawfully demanded (under Woolwich), or for tax paid under a mistake of law (under DMG). The first would be time barred. The limit had been relaxed under the 1980 Act for the second. The Court of Appeal had found the Woolwich type remedy the appropriate one. The taxpayer appealed.
Held: As to whether Parliament had the right to amend the law in a way which disallowed access to both types of claims, the principle issue, a reference was made back to the European Court. The claimants’ appeal were dismissed on the issues of the application of section 32(1)(c) of the 1980 Act applied to their claims, and as to the significance of the difference between tax paid under demand or on filing a tax return.
The appeal succeeded in arguing that section 33 can be given an interpretation which conforms with EU law by not construing it as impliedly setting itself up as an exclusive provision. The common law claim in unjust enrichment remains available to the appellants. The appeal on this issue was allowed.
Lord Hope said: ‘I would hold that Parliament could not lawfully curtail without notice the extended limitation period under section 32(1)(c) of the Limitation Act 1980 for the mistake cause of action by section 320 FA 2004.’

Judges:

Lord Hope, Deputy President, Lord Walker, Lord Brown, Lord Clarke, Lord Dyson, Lord Sumption, Lord Reed

Citations:

[2012] UKSC 19, [2012] WLR(D) 161, [2012] STC 1362, [2012] 2 WLR 1149, [2012] 3 All ER 909, [2012] BTC 312, [2012] 2 AC 337, [2012] Bus LR 1033, [2012] STI 1707, UKSC 2010/0085

Links:

Bailii, SC, SC Summary

Statutes:

Limitation Act 1980 32(1)(c), Finance Act 2007 107

Jurisdiction:

England and Wales

Citing:

At First Instance – Test Claimants In the FII Group Litigation v HM Revenue and Customs ChD 27-Nov-2008
The claimants were companies with parent companies in the UK and other subsidiaries not so resident, both in the EU and outside. They complained of the differences in treatment under corporation tax of the payment of dividends between the . .
Appeal from – Franked Investment Group Litigation Test Claimants v Inland Revenue and Another CA 23-Feb-2010
. .
Cited – Amministrazione Delle Finanze Dello Stato v Spa San Giorgio ECJ 9-Nov-1983
ECJ Questions submitted for a preliminary ruling – reference to the court – right of every national court – stage of the proceedings before the national court – nature of the decision to be given by the national . .
Cited – ACF Chemiefarma v Commission ECJ 15-Jul-1970
ECJ 1. The provisional character conferred by article 9(3) of Regulation no 17 on steps taken by national authorities in connexion with the implementation of article 85 of the EEC Treaty cannot call in question . .
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. . .
At ECJ – Test Claimants In The FII Group Litigation v CIR ECJ 12-Dec-2006
ECJ (Opinion of Geelhoed AG) Interpretation of Articles 43 and 56 EC and Articles 4(1) and 6 of Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent . .
Cited – Brooksbank v Smith 24-Feb-1836
In this case, trustees under a will, who were solicitors, had by mistake transferred stock to a person not entitled. Baron Alderson said, this being under circumstances of mistake, it appeared clear to him that the Plaintiffs were entitled to . .
Cited – Baker v Courage and Co 1910
The plaintiff had owned a public house. On selling the leasehold to the defendants brewers, they had overpaid him by andpound;1,000. He deposited a sum at interest with the defendants. When he came to withdraw the last of the deposit (by coincidence . .
Cited – Phillips-Higgins v Harper QBD 1954
A claim was made to recover monies due under a contract where the plaintiff had failed to realise that the balance was due to her, and by that mistake the action was concealed from her.
Held: Pearson J said: ‘But that is not sufficient. . .
Cited – Marleasing SA v La Comercial Internacional de Alimentacion SA ECJ 13-Nov-1990
Sympathetic construction of national legislation
LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC . .
Cited – Brasserie du Pecheur v Bundesrepublik Deutschland; Regina v Secretary of State for Transport, ex parte Factortame and others (4) ECJ 5-Mar-1996
Member states may be liable to individuals for their failure to implement EU laws. The right of individuals to rely on directly applicable provisions of the EC Treaty before national courts is not sufficient in itself to ensure full and complete . .
Cited – Morgan Guaranty v Lothian Regional Council SCS 1-Dec-1994
. .
Cited – HM Treasury v Ahmed and Others SC 27-Jan-2010
The claimants objected to orders made freezing their assets under the 2006 Order, after being included in the Consolidated List of suspected members of terrorist organisations.
Held: The orders could not stand. Such orders were made by the . .
Cited – 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 . .
Cited – Boake Allen Ltd and others v HM Revenue and Customs CA 31-Jan-2006
The claimant companies had paid corporation tax under rules which had later been found to be discriminatory. They now sought repayment by virtue of double taxation agreements with the countries in which the parent companies were based.
Held: . .
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 – NEC Semi-Conductors Limited and Other Test Claimants v The Commissioners of Inland Revenue ChD 24-Nov-2003
UK companies were subsidiaries of companies resident abroad, and complained that they were unable to make group income elections.
Held: The prohibition infringed non-discrimination provisions of double taxation agreements – non-discrimination . .

Cited by:

Cited – Revenue and Customs v The Investment Trust Companies SC 11-Apr-2017
Certain investment trust companies (ITCs) sought refunds of VAT paid on the supply of investment management services. EU law however clarified that they were not due. Refunds were restricted by the Commissioners both as to the amounts and limitation . .
Cited – Littlewoods Ltd and Others v Commissioners for Her Majesty’s Revenue and Customs SC 1-Nov-2017
The appellants had overpaid under a mistake of law very substantial sums in VAT over several years. The excess had been repaid, but with simple interest and not compound interest, which the now claimed (together with other taxpayers amounting to 17 . .
Cited – FMX Food Merchants Import Export Co Ltd v Revenue and Customs SC 29-Jan-2020
This appeal concerns the meaning and effect of the phrase ‘Customs Debt’ in article 221(4) of the former Customs Code of the EU, contained in Council Regulation (EEC) No 2913/92. Customs duties may be due under ‘post-clearance demands’ and the Court . .
Lists of cited by and citing cases may be incomplete.

European, Corporation Tax, Limitation, Taxes Management, Damages

Leading Case

Updated: 27 May 2022; Ref: scu.459618

Legal Services Commission v Rasool: CA 5 Mar 2008

The defendant had in 1993 obtained legal aid. Work was done but the certificate was then revoked. The Commission sought repayment of the sums paid on account to his solicitors. He replied that the claim was out of time. The Commission argued that time did not run until the sum was fixed.
Held: The Commission’s appeal failed: ‘the fact that declaratory relief is available demonstrates to me that the process of ascertainment of the amount of costs is a mere procedural requirement, not an inherent element of the cause of action itself . . time runs from the date of the completion of work not from the date of taxation. I can see no reason why a similar rule should not apply by way of analogy so that the only facts to be proved to establish cause of action under regulation 86(1) are that work had been done under a certificate but that the certificate had been revoked. Taxation should not be the crystallising event in either case.’

Judges:

Lord Justice Ward, Lady Justice Smith and Lord Justice Wilson

Citations:

[2008] EWCA Civ 154, Times 21-Apr-2008, [2008] 3 All ER 381, [2008] 4 Costs LR 529, [2008] 1 WLR 2711, (2008) 158 NLJ 414

Links:

Bailii

Statutes:

Civil Legal Aid (General) Regulations (SI 1989 No 339), Limitation Act 1980 9

Jurisdiction:

England and Wales

Citing:

Cited – Coburn v Colledge CA 5-Apr-1897
A solicitor commenced an action on June 12th, 1896 for his fees for work which had been completed on May 30th 1889.
Held: A period of limitation runs from the date on which the ingredients of the cause of action are complete. The statute of . .
Cited – Central Electricity Generating Board v Halifax Corporation HL 1963
Under the 1947 Act, the assets of electricity undertakings were transferred to to electricity boards. Property held by local authorities as authorised undertakers should, on vesting day, vest in the relevant board. A question arose as to whether . .
Cited – London Borough of Hillingdon v ARC Limited (No 2) CA 16-Jun-2000
The council entered upon land belonging to the company in accordance with the compulsory purchase procedures in 1982, but the company did not bring its claim for compensation until 1992. The council said the were out of time.
Held: Section 9 . .
Cited – Sevcon Ltd v Lucas CAV Ltd HL 1986
A claim was brought for the infringement of a patent. It was brought after the specification had been published, but before the patent had been sealed.
Held: Time might run from a date before the plaintiff was entitled to sue. The cause of . .

Cited by:

Cited – Legal Services Commission v Henthorn QBD 4-Feb-2011
The claimant sought to recover overpayments said to have been made to the defendant barrister in the early 1990s. Interim payments on account had been made, but these were not followed by final accounts. The defendant, now retired, said that the . .
Cited – Legal Services Commission v Henthorn CA 30-Nov-2011
The Commission sought to recover what it said were payments made on account to the respondent barrister, but only after many years had passed. The Commission argued that time only began to run once it requested repayment.
Held: The appeal . .
Lists of cited by and citing cases may be incomplete.

Legal Aid, Limitation

Updated: 27 May 2022; Ref: scu.266089

Legal Services Commission v Henthorn: CA 30 Nov 2011

The Commission sought to recover what it said were payments made on account to the respondent barrister, but only after many years had passed. The Commission argued that time only began to run once it requested repayment.
Held: The appeal succeeded. In general, time would run from the earlier date: ‘Save where it is the essence of the arrangement between the parties that a sum is not payable until demanded (e.g. a loan expressly or impliedly repayable on demand), it appears to me that clear words would normally be required before a contract should be held to give a potential or actual creditor complete control over when time starts running against him, as it is such an unlikely arrangement for an actual or potential debtor to have agreed.’, but in this context, ‘time did not begin to run against the Commission in respect of claims falling within regulation 100(8) until the assessment there referred to had taken place.’
Lord Neuberger MR said: ‘A person who wished to obtain legal representation had to be granted a legal aid certificate (‘a certificate’) and, once it was granted, he or she became an ‘assisted person’. An assisted person was, at least in principle, free to choose a solicitor, who was to be subject to the same obligations to the assisted client as would have applied had the instructions been private save for any specific exception provided for by the statutory scheme – see section 32 of the 1988 Act. One way in which the contractual relationship between solicitor and client was altered by the grant of legal aid was under section 9(5) of the 1988 Act, which provided that the assisted person was not required to pay his or her solicitor any charge or fee, save for any contribution provided for in the Regulations. Similarly, under section 31(3), the solicitor was not entitled to take any payment in respect of that representation other than as paid by the Commission or as authorised by the 1988 Act or by the Regulations. . .
The Commission could, and usually did, impose conditions limiting the ambit of the certificate and requiring further approval before any limitation could be amended. Costs incurred by an assisted person’s legal representatives in those cases could only be paid for out of the Legal Aid Fund (‘the fund’) if they had been incurred during the currency of a valid certificate.’

Judges:

Neuberger MR, Lewison LJJ, Sir Stephen Sedley

Citations:

[2011] EWCA Civ 1415, [2011] NPC 123, [2012] 1 Costs LR 169, [2012] 2 All ER 439, [2012] 1 WLR 1173

Links:

Bailii

Statutes:

Legal Aid Act 1988, Civil Legal Aid (General) Regulations 1989

Jurisdiction:

England and Wales

Citing:

Cited – Blake v The United Kingdom ECHR 26-Sep-2006
The claimant had been a Russian spy whilst in British Intelligence, escaping from prison and fleeing to Russia in 1966. He now complained that an action by the respondent government to seek to recover royalties from a book had been so extended in . .
Appeal from – Legal Services Commission v Henthorn QBD 4-Feb-2011
The claimant sought to recover overpayments said to have been made to the defendant barrister in the early 1990s. Interim payments on account had been made, but these were not followed by final accounts. The defendant, now retired, said that the . .
Cited – Central Electricity Generating Board v Halifax Corporation HL 1963
Under the 1947 Act, the assets of electricity undertakings were transferred to to electricity boards. Property held by local authorities as authorised undertakers should, on vesting day, vest in the relevant board. A question arose as to whether . .
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 . .
Cited – Legal Services Commission v Rasool CA 5-Mar-2008
The defendant had in 1993 obtained legal aid. Work was done but the certificate was then revoked. The Commission sought repayment of the sums paid on account to his solicitors. He replied that the claim was out of time. The Commission argued that . .
Cited – Coburn v Colledge CA 5-Apr-1897
A solicitor commenced an action on June 12th, 1896 for his fees for work which had been completed on May 30th 1889.
Held: A period of limitation runs from the date on which the ingredients of the cause of action are complete. The statute of . .
Lists of cited by and citing cases may be incomplete.

Limitation, Legal Aid

Updated: 27 May 2022; Ref: scu.449043

Legal Services Commission v Henthorn: QBD 4 Feb 2011

The claimant sought to recover overpayments said to have been made to the defendant barrister in the early 1990s. Interim payments on account had been made, but these were not followed by final accounts. The defendant, now retired, said that the claims were defeated by limitation and laches and were an abuse of process because of long delay by the claimant.
Held: The case of Rasool was on point and settled it that the relation between the lawyer and his client under the legal aid system remained the same despite the funding arrangement under legal aid. Under that arrangement the claimant could have begun its claim, time ran from the date that the work under the certificate was actually completed and all but two of the claims were time barred.
The claimant also claimed in restitution. However, ‘the exclusive remedy available to the LSC is that provided for by regulation 100(8)’ and no restitutionary claim could arise on the basis of the claims pleaded, and if it were available it would now be defeated by laches and limitation. Similarly the claimant had been unreasonable or unfair in its use of its powers in this way. The claim for abuse of process succeeded.
‘the Regulations gave the LSC full powers to obtain all necessary information and also provided strict time limits for the assessment process. What regrettably occurred throughout the 1990s was a culture of acquiescence in which the LSC did not seek regular reports on stale cases, did not exercise its powers of discharge when cases went to sleep and were not reported on, did not ensure that bills that were lodged for taxation outside the three month period permitted by the RSC were subject to penalties so as to discourage such delays and did not require solicitors who delayed in lodging bills of costs to lodge them under threat of discharge and consequent non-payment. In any event, it is not possible to identify the ingredients of the relevant cause of action by reference to the relaxed way in which the regulations were implemented.’

Judges:

Anthony Thornton QC J

Citations:

[2010] EWHC 3329 (QB)

Links:

Bailii

Statutes:

Civil Legal Aid (General) Regulations 1989, Limitation Act 1980

Jurisdiction:

England and Wales

Citing:

Cited – Coburn v Colledge CA 5-Apr-1897
A solicitor commenced an action on June 12th, 1896 for his fees for work which had been completed on May 30th 1889.
Held: A period of limitation runs from the date on which the ingredients of the cause of action are complete. The statute of . .
Cited – London Borough of Hillingdon v ARC Limited CA 7-Apr-1998
The company sought compensation for land taken under compulsory purchase powers by the defendants several years before. It now appealed against the defeat of its claim as time-barred.
Held: The appeal failed. The limitation period for a claim . .
Cited – Legal Services Commission v Rasool CA 5-Mar-2008
The defendant had in 1993 obtained legal aid. Work was done but the certificate was then revoked. The Commission sought repayment of the sums paid on account to his solicitors. He replied that the claim was out of time. The Commission argued that . .
Cited – Leivers v Barber Walker and Co Ltd CA 1943
Goddard LJ (dissenting) said that section 2(1)(d) of the 1939 Act changed the former position altogether, leaving the provision for limitation as regards specialties to apply only to deeds and other documents under seal (or to claims other than for . .
Cited – Central Electricity Generating Board v Halifax Corporation HL 1963
Under the 1947 Act, the assets of electricity undertakings were transferred to to electricity boards. Property held by local authorities as authorised undertakers should, on vesting day, vest in the relevant board. A question arose as to whether . .
Cited – The Child Poverty Action Group v Secretary of State for Work and Pensions SC 8-Dec-2010
The Action Group had obtained a declaration that, where an overpayment of benefits had arisen due to a miscalculation by the officers of the Department, any process of recovering the overpayment must be by the Act, and that the Department could not . .
Cited – Child Poverty Action Group, Regina (on the Application of) v Secretary Of State for Work and Pensions CA 14-Oct-2009
CPAG appealed against a refusal of a declaration that the respondent could use only the 1992 Act to recover overpayment of benefits where there had been neither misrepresentation nor non-disclosure.
Held: The appeal succeeded, and the court . .
Cited – Doherty and others v Birmingham City Council HL 30-Jul-2008
The House was asked ‘whether a local authority can obtain a summary order for possession against an occupier of a site which it owns and has been used for many years as a gipsy and travellers’ caravan site. His licence to occupy the site has come to . .
Cited – Barber v London Borough of Croydon CA 11-Feb-2010
The tenant who suffered learning and behavioural difficulties appealed against an order for possession of his council flat. He had become aggressive with the caretaker. The council sought possession, and he defended the claim saying that the council . .

Cited by:

Appeal from – Legal Services Commission v Henthorn CA 30-Nov-2011
The Commission sought to recover what it said were payments made on account to the respondent barrister, but only after many years had passed. The Commission argued that time only began to run once it requested repayment.
Held: The appeal . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Equity, Limitation, Legal Aid

Updated: 27 May 2022; Ref: scu.428706

Warwickshire Hamlets Ltd and Another v Gedden and Others: UTLC 26 Mar 2010

UTLC SERVICE CHARGES – jurisdiction of leasehold valuation tribunal – construction of lease – whether rent payable by a management company in respect of the common parts recoverable as part of the service charge – Limitation Act 1980 s.21

Citations:

[2010] UKUT 75 (LC)

Links:

Bailii

Statutes:

Limitation Act 1980 21

Jurisdiction:

England and Wales

Cited by:

Cited – Parissis v Blair Court St Johns Wood Management Ltd UTLC 11-Nov-2014
UTLC LANDLORD AND TENANT – service charges – application by tenant under section 27A of the Landlord and Tenant Act 1985 for a determination of the service charges payable in respect of periods more than six . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Limitation

Updated: 26 May 2022; Ref: scu.415011

Finch v Francis: QBD 21 Jul 1977

Griffiths J considered the situation under which the court might use its discretion to extend a limitation period: ‘the object of the discretion was to provide for the occasional hard case’ and that its application ‘should be reserved for cases of an unusual nature’.

Judges:

Griffiths J

Citations:

Unreported, 21 July 1977

Jurisdiction:

England and Wales

Cited by:

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

Limitation

Updated: 26 May 2022; Ref: scu.242523

Guidera v NEI Projects (India) Ltd: CA 30 Jan 1990

The word ‘attributable’ in the Act means ‘capable of being attributed’, rather than ’caused by’.

Citations:

CA Tr No 60 of 1990

Jurisdiction:

England and Wales

Citing:

Appeal from – Guidera v NEI Projects (India) Ltd 17-Nov-1988
The plaintiff was exposed to asbestos in 1952 and 1953 and later diagnosed with asbestosis.
Held: He had suffered no injury by 4th June 1954 because physical injury would not occur for at least 5 (and more likely 10 – 20) years after exposure. . .

Cited by:

Cited – Haward and others v Fawcetts HL 1-Mar-2006
The claimant sought damages from his accountants, claiming negligence. The accountants pleaded limitation. They had advised him in connection with an investment in a company which investment went wrong.
Held: It was argued that the limitation . .
Lists of cited by and citing cases may be incomplete.

Limitation

Updated: 26 May 2022; Ref: scu.238778

Samuels v Walker: CA 16 May 1997

The plaintiff had been a passenger in a car, and sought damages from the car driver, from an injury occurring as the car crashed. Proceedings were not begun within the three year limit. The proceedings were begun on the basis of an implausible version of events which he had agreed with the defendant shortly after the accident. Upon instructing solicitors, he sought leave to amend his particulars to assert the correct version of events. The judge disallowed the amendment, based upon his abusive conduct.
Held: He should be given leave to appeal that order. It was arguable that that consideration of his conduct was not relevant under the Limitation Act.

Citations:

[1997] EWCA Civ 1715

Statutes:

Limitation Act 1980

Jurisdiction:

England and Wales

Limitation

Updated: 25 May 2022; Ref: scu.142111

Times Newspapers Ltd v Chohan: CA 22 Jun 2001

The limitation period on collection of an award of costs, must run from the date of the costs certificate. It was only at that point when it became enforceable. It would be an abuse to bring an action for enforce the costs award before that date. The word enforceable had to mean enforceable in a practical way. Until certified there was nothing to enforce.

Judges:

Aldous LJ, Robert Walker LJ, Jonathan Parker LJ

Citations:

Gazette 26-Jul-2001, [2001] EWCA Civ 964

Links:

Bailii

Statutes:

Limitation Act 1980 24

Jurisdiction:

England and Wales

Citing:

See Also – Chohan v Times Newspapers Limited; Singh and Choudry (a Firm) and Choudry CA 4-Dec-1998
. .
See Also – Chohan v Times Newspapers Ltd CA 25-Feb-1999
. .
Lists of cited by and citing cases may be incomplete.

Costs, Limitation

Updated: 25 May 2022; Ref: scu.136154

Patterson v Ministry of Defence: QBD 29 Jul 1986

The plaintiff had been exposed to asbestos when working for the defendant. X-rays revealed development of pleural plaques, but these would remain asymptomatic.
Held: Material damage sufficient to set time running was the same as damage necessary to complete a claimant’s cause of action in negligence. The court rejected arguments that this was yet insufficient damage: ‘I have no doubt whatever that the Plaintiff has suffered material damage. It consists of the symptom – free pleural changes, the risk of pleural thickening deteriorating with the consequences I have indicated, the risk of mesothelioma developing and the understandable worry attendant upon these matters.’ A provisional award was made: ‘I therefore have to value in combination (a) the present symptom-free pleural changes; (b) the 5%-odd risk of further diffuse changes developing so as to aggravate the plaintiff’s breathlessness, and (c) the anxiety which the plaintiff entirely understandably, and in my judgment reasonably, has hitherto suffered, in particular over the last two years, and to a far more limited degree, the worry he may still experience in the future, even though, as I have sought to emphasize, these future risks are really very small. Doing my best to arrive at a figure which accords reasonably with the scale established by Church and Sykes, both now 2 years old, and with my own views upon the particular facts of the instant case, I assess such damages in the sum of andpound;1,250. There will accordingly be judgment for the plaintiff for damages in that sum assessed on the assumption that the plaintiff will not develop mesothelioma at any future stage.’
‘[S]ymptom-free pleural changes’ could not, of themselves, constitute significant damage for the purpose of founding a cause of action but ‘In deciding whether material damage has been caused it is appropriate to have regard not merely to actual physical manifestation of injury, but also to whatever risks consequent upon the original injury may exist of future symptoms becoming manifest’

Judges:

Simon Brown J

Citations:

Unreported 29 July 1986, [1987] CLY 1194

Jurisdiction:

England and Wales

Citing:

Cited – Darley Main Colliery Co v Mitchell HL 1886
The owner of land whose land was affected by subsidence in 1868 and who received compensation from those who had worked coal and caused the subsidence, was able, in 1882 when further subsidence took place causing further injury, to bring a fresh . .
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 by:

Cited – Rothwell v Chemical and Insulating Co Ltd and Another CA 26-Jan-2006
Each claimant sought damages after being exposed to asbestos dust. The defendants resisted saying that the injury alleged, the development of pleural plaques, was yet insufficient as damage to found a claim.
Held: (Smith LJ dissenting) The . .
Cited – Johnston v NEI International Combustion Ltd; Rothwell v Chemical and Insulating Co Ltd; similar HL 17-Oct-2007
The claimant sought damages for the development of neural plaques, having been exposed to asbestos while working for the defendant. The presence of such plaques were symptomless, and would not themselves cause other asbestos related disease, but . .
Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Limitation, Damages

Updated: 25 May 2022; Ref: scu.238189

Fraser and Another v Canterbury Diocesan Board Of Finance (No 1): CA 24 Nov 2000

A grant of land was made under the 1841 Act in 1872 (after the 1870 Act) and the school had in 1874 been transferred to a school board under section 23 of the 1870 Act. The school closed permanently in 1992. The issue was whether reverter had occurred in 1874, with the result that the claim of those interested under the reverter had long since become statute barred. The original grant under the 1841 Act followed the National Society standard form.

Judges:

Lord Justice Peter Gibson Lord Justice Mummery Lord Justice Latham

Citations:

Times 09-Jan-2001, Gazette 25-Jan-2001, [2001] Ch 669, [2000] EWCA Civ 460

Links:

Bailii

Statutes:

School Sites Act 1841

Jurisdiction:

England and Wales

Citing:

Disapproved – Marchant and Others v Onslow ChD 12-Nov-1993
School site reverts to original grantors when land is not part of an estate. . .
Appeal from – Fraser and Another v Canterbury Diocesan Board of Finance ChD 22-Feb-2000
Where land had been acquired under the Act on trusts related specifically to the provision of education in accordance with a specified religion, the abandonment by the school of that purpose meant that the land reverted immediately to the original . .
Approved – Habermehl v Attorney General 1996
Land was granted for use as a school for the education of poor persons in accordance with the principles of the National Society. In 1876 the school had become a ‘provided school’ run by a School Board under the Education Act 1870. That meant that, . .

Cited by:

Cited – Rector of Wrington and The Bath and Wells Diocesan Board of Finance v Jenkinson and Others ChD 26-Feb-2002
Land having been conveyed under the Act, and it no longer being needed as a school, it had to be decided to whom the land reverted.
Held: The tracing of beneficiaries had to be in the basis under section 2, that the land had never been so . .
See Also – Fraser and Another v Canterbury Diocesan Board of Finance and Another Chd 14-May-2003
The claimants sought to assert that land acquired under the 1841 Act reverted to them on its ceasing to be used for the purposes of a school. Lewison J summarised the evidence: ‘An analysis of the school registers for 1931 to 1947 shows that the . .
Cited – Fraser and Another v Canterbury Diocesan Board of Finance and others HL 27-Oct-2005
Land had been acquired by a deed under the 1841 Act, but had in 1995 ceased to be used as a school ‘for the education of children and adults of the labouring manufacturing and other poorer classes . . And for no other purpose ‘. Under the Act, the . .
Lists of cited by and citing cases may be incomplete.

Education, Land, Limitation, Land

Updated: 23 May 2022; Ref: scu.135660

Markfield Investments Ltd v Evans: CA 9 Nov 2000

The claimants were paper owners of land occupied by the defendant. The claimant said the acquiescence had been interrupted by an abortive court action by the claimant’s predecessor in title.
Held: With regard to any particular action the relevant time, and the only relevant time, for consideration of adverse possession is that which has expired before such action is brought. A letter and separate action could not found a claim. Appeal dismissed.

Judges:

Lord Justice Simon Brown Lord Justice Mummery And Lord Justice Latham

Citations:

[2000] EWCA Civ 281, [2001] 1 WLR 1321

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Mount Carmel Investments Limited v Peter Thurlow Limited CA 1988
The court considered a defence to an assertion of adverse possession, that the plaintiff had given notice of his intention to recover the land: ‘no one, either lawyer or non-lawyer, would think that a householder ceases to be in possession of his . .
Cited – 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 by:

Cited – Ofulue and Another v Bossert CA 29-Jan-2008
The claimants appealed an order finding that the defendant had acquired their land by adverse possession. They said that the defendant had asserted in defence to possession proceedings that they were tenants, and that this contradicted an intent to . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 23 May 2022; Ref: scu.135672

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.

Judges:

Potter, Sedley, Jonathan Parker LJ

Citations:

[2001] EWCA Civ 245, [2001] PNLR 573, [2002] 1 WLR 581, [2001] Lloyd’s Rep PN 290, 78 Con LR 1, [2001] PNLR 23, (2001) 17 Const LJ 262, [2001] CP Rep 66, [2001] 9 EGCS 229, [2001] NPC 36, [2001] Lloyds Rep PN 290

Links:

Bailii

Statutes:

Limitation Act 1980 32

Jurisdiction:

England and Wales

Citing:

Doubted – 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 . .

Cited by:

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

Limitation, Professional Negligence

Updated: 23 May 2022; Ref: scu.135565

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

Where a tenant under a grazing license had stayed over after the end of the tenancy, and had been refused a renewed licence, and had continued to graze the land for over twelve years, the mere overstaying was not enough to evidence an animus possidendi, an intention to assert an interest contrary to that of the owner. The original relationship had envisaged continued use until the land would receive planning permission. The claim for possession by the original owners succeeded.
Mummery LJ said that Article 1 did not impinge on the relevant provisions of the Limitation Act 1980, which did not deprive a person of his possessions or interfere with his peaceful enjoyment of them but only deprived a person of his right of access to the courts for the purpose of recovering property if he had delayed the institution of his legal proceedings for 12 years or more after being dispossessed by another. The extinction of the applicants’ title was not a deprivation of possessions nor a confiscatory measure for which payment of compensation would be appropriate, but a logical and pragmatic consequence of the barring of the right to bring an action after the expiration of the limitation period. Any deprivation was justified in the public interest, the conditions laid down in the 1980 Act being reasonably required to avoid the risk of injustice in the adjudication of stale claims and as ensuring certainty of title: those conditions were not disproportionate, the period of 12 years being reasonable and not imposing an excessively difficult burden on the landowner.
Lord Justice Keene started from the assumption that limitation periods were in principle not incompatible with the Convention and that the process whereby a person would be barred from enforcing rights by the passage of time was clearly acknowledged by the Convention. This position obtained, in his view, even though limitation periods both limited the right of access to the courts and in some circumstances had the effect of depriving persons of property rights, whether real or personal, or of damages: there was thus nothing inherently incompatible as between the 1980 Act and Article 1 of the Protocol.

Judges:

Mummery, Keene LJJ, Sir Martin Nourse

Citations:

Gazette 22-Feb-2001, Times 13-Feb-2001, [2001] EWCA Civ 117, [2001] Ch 804, [2001] 2 WLR 1293, (2001) 82 P and CR DG1, [2001] 18 EG 176, [2001] 2 EGLR 69, (2001) 82 P and CR 23, [2001] HRLR 27, [2001] 7 EGCS 161, [2001] NPC 29

Links:

Bailii

Statutes:

Limitation Act 1980 15 38 Sch 8 paras 1 and 8, European Convention on Human Rights 1

Jurisdiction:

England and Wales

Citing:

Appeal from – J A Pye and Another v Graham and Another ChD 14-Mar-2000
The fact alone of being prepared to take a licence of land would not defeat an application for adverse possession, but a request for a licence would be relevant. The adverse possession commenced from the time when the licence expired, given that a . .

Cited by:

Appeal from – J A Pye (Oxford) Ltd and Others v Graham and Another HL 4-Jul-2002
The claimants sought ownership by adverse possession of land. Once the paper owner had been found, they indicated a readiness to purchase their interest. The court had found that this letter contradicted an animus possidendi. The claimant had . .
Cited – Malekshad v Howard De Walden Estates Limited CA 23-May-2001
The applicant sought the leasehold enfranchisement of two leasehold properties. They were contained in separate leases, but the property had been treated as one for some time. A part of one property extended under part of the other. The claim was . .
Cited – J A Pye (Oxford) Ltd and Another v Graham and Another CA 6-Feb-2001
Leave to appeal to the House of Lords refused. . .
At Court of Appeal – 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 – Mann Aviation Group (Engineering) Ltd v Longmint Aviation Ltd and Another ChD 19-Aug-2011
Administrators of the claimant company asserted that the company had held informal leases of two hangars owned by the defendant, and also complained of their transfer at an undervalue. The first defendant said that the occupations were under license . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation, Human Rights

Updated: 23 May 2022; Ref: scu.135590

Crosse and Crosse (A Firm) v Lloyds Bank Plc: CA 16 Mar 2001

Solicitors appealed a finding of professional negligence in the purchase of land which had been subject to restrictive covenants which had not been disclosed to the bank, saying that time had begun to run against the bank at a time when the bank accepted new clients as debtors under the security.

Judges:

Potter LJ, Sedley LJ, Jonathan Parker LJ

Citations:

[2001] EWCA Civ 366

Links:

Bailii

Statutes:

Limitation Act 1980 5 14A

Jurisdiction:

England and Wales

Professional Negligence, Limitation

Updated: 23 May 2022; Ref: scu.135534

Libyan Investment Authority and Others v King and Others: CA 14 Dec 2020

whether the Court has power to permit the Claimants to amend so as to introduce new claims after the expiry of the limitation period – ‘In circumstances where the Court has struck out the entirety of the Claimants’ currently pleaded case, can the Court nevertheless subsequently permit new claims to be brought?’

Judges:

Lord Justice Nugee

Citations:

[2020] EWCA Civ 1690

Links:

Bailii

Jurisdiction:

England and Wales

Limitation, Litigation Practice

Updated: 22 May 2022; Ref: scu.656771

Greater Glasgow Health Board v Baxter Clark and Paul: SCS 1990

Outer House Court of Session – Lord Clyde held (obiter) that the ordinary and natural meaning of the phrase ’caused as aforesaid’ included the distinct ingredient of causation by negligence: ‘The question is one of the interpretation of section 11(3) . . In my view . . the subsection looks for an awareness not only of the fact of loss having occurred, but the fact that it is a loss caused by negligence . . I do consider that the ordinary and natural meaning of the phrase [’caused as aforesaid’] involves an inclusion of the ingredient of causation by fault. The construction advocated by the defenders does not seem to me to give sufficient recognition to the presence of the critical three words. Indeed, if Parliament had intended what the defenders submit is the proper construction, the words could have been altogether omitted. Counsel for the defenders argued that it was necessary to refer to the fact that the loss was loss resulting from an act, neglect or default because it was with that that the section was concerned. As senior counsel for the defenders put it, the critical phrase was inserted to draw attention back to section 11(1) to show the kind of loss of which the creditor has to be aware without making awareness of the fact of causation an essential for the prescriptive period to start running. But the whole section is concerned with claims for reparation which involve damnum caused by injuria and it does not seem to me that the critical words could have been added simply as a reminder of that. They must be there for some purpose and they must be given some meaning. In accordance with the ordinary use of the language which is used, awareness of loss having occurred is not enough. What the subsection requires is awareness of loss caused by negligence having occurred.
Furthermore as senior counsel for the pursuers submitted, the logic of the scheme points to a requirement of knowledge that the right of action exists before the obligation is deemed to be enforceable and it would be illogical to omit one of the essential components of the right of action, namely the causation of the loss by fault. Even more compelling to my mind was his further submission that if it is only knowledge of the fact of loss, injury or damage having occurred which is intended, it is difficult to give much content to the reference to reasonable diligence. The more likely context for reasonable diligence is in the steps that may be taken after loss has been sustained to discover the cause of it . .’

Judges:

Lord Clyde

Citations:

1990 SC 237

Statutes:

Prescription and Limitation (Scotland) Act 1973

Jurisdiction:

Scotland

Cited by:

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

Limitation

Updated: 20 May 2022; Ref: scu.552028

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 dilapidations and the risks of entering into possession before the lease was formally executed.
Held: The appeal was dismissed. When the claimant executed the guarantee he knew already of the risk of liability for dilapidations. The limitation period runs from when damage arises, in this case from the giving of the negligent advice to sign a guarantee. The requested addition of the new party did not arise from an earlier mistake but from the assignment to the plaintiff. The amendment should not be allowed.
Aldous LJ said: ‘Negligent advice which results in a person giving a security by way of a charge over property or a guarantee can cause damage even before the surety is called in or before the person comes to have to honour the guarantee. That can be demonstrated by taking a case which arose in argument, when a company guarantees the loans of another company. That guarantee would have to be disclosed in the company’s accounts as it would be a liability affecting the value of the shares. If the guarantee was entered into upon negligent advice, then the loans might well have to be paid and the guarantee honoured. Thus, the potential liability of the guarantor would be greater with consequent diminution of the value of the company. ‘
Schiemann LJ said: ‘A guarantor cannot be sued on the guarantee by the creditor until there has been default by the principal debtor. It does not follow that the guarantor has not got a right of action in tort against a solicitor who allegedly negligently advised him to enter into the guarantee prior to that time. He may prefer to wait and see whether he is in fact called upon to pay but, as it seems to me, he can sue his solicitor earlier. If he does the trial judge must do what he can to assess the chance of the surety being called upon to pay under the guarantee. If this is significant, then the judge will assess the damage on the basis of the degree of probability of the surety being held liable to pay a particular sum. ‘

Judges:

Hirst LJ, Aldous LJ, Schiemann LJ

Citations:

Times 14-Feb-1997, [1997] EWCA Civ 951

Jurisdiction:

England and Wales

Citing:

Cited – Welsh Development Agency v Redpath Dorman Long Ltd CA 4-Apr-1994
A new claim was not deemed to have been made until the pleading was actually amended for limitation purposes, and should not be allowed after the limitation period had expired. The date of the application for leave to amend was not at issue. The . .
Cited – Lep Air Services v Rolloswin Investments Ltd; Moschi v LEP Air Services HL 1973
The obligation of a guarantor under a contract ‘is not an obligation himself to pay a sum of money to the creditor, but an obligation to see to it that another person, the debtor, does something.’ When a repudiatory breach is accepted by the injured . .
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 – 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 – 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 – Hancock Shipping Limited v Kowaski Heavy Industries CA 1992
Leave was sought by the plaintiffs to amend their points of claim in circumstances where it was common ground that the amendments would introduce new causes of action which, if brought in new proceedings, would have been statute-barred. Held . .
Lists of cited by and citing cases may be incomplete.

Limitation, Professional Negligence

Updated: 20 May 2022; Ref: scu.89686

Rahman v Sterling Credit Ltd: CA 17 Oct 2000

A lender sought repossession of a property securing a loan from 1998. The borrower sought to assert that the loan was an extortionate credit bargain under the Act. The lender asserted that that claim was out of time.
Held: A claim under a statute was an action upon a specialty, and that accordingly the limitation period applicable was twelve years, and the order was to stand.

Judges:

Simon Brown and Mummery LJJ

Citations:

Times 17-Oct-2000, Gazette 17-Aug-2000, [2000] EWCA Civ 222, [2001] 1 WLR 496

Links:

Bailii

Statutes:

Consumer Credit Act 1974, Limitation Act 1980

Jurisdiction:

England and Wales

Cited by:

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.

Land, Limitation, Consumer

Updated: 19 May 2022; Ref: scu.85644

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 on the ground that they were statute barred under section 24(1) should be refused. A judgment can be enforced after six years, but not any claim for interest on that judgment. Execution was not a fresh action and so was not caught by the statutory restriction. Execution has historically been treated other than as a separate action. s24(1) does not apply to proceedings by way of execution of a judgment in the same action: the expression ‘action upon any judgment’ in s24(1) means, as it did in s2(4) of the 1939 Act, bringing a ‘fresh action’ upon a judgment for another judgment. It did not include the execution of an existing judgment, which could proceed despite the expiration of more than 6 years from the judgment.

Judges:

Lord Lloyd of Berwick

Citations:

Times 24-Aug-1998, Gazette 16-Sep-1998, [1998] UKHL 34, [1998] 3 All ER 897, [1998] 3 WLR 501, [1999] 1 AC 329

Links:

House of Lords, Bailii

Statutes:

Limitation Act 1980 24(1) 24(2), Supreme Court of Judicature (1873) Amendment Act 1875

Citing:

Appeal from – Lowsley and Another v Forbes CA 21-Mar-1996
The statutory time limit under the Limitation Act applied only to the right to take substantive proceedings and had nothing whatever to do with the procedural machinery for enforcing a judgment when one was obtained. The Act of 1875 brought about a . .
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 – 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 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 – A v Hoare; H v Suffolk County Council, Secretary of State for Constitutional Affairs intervening; X and Y v London Borough of Wandsworth CA 12-Apr-2006
Each claimant sought damages for a criminal assault for which the defendant was said to be responsible. Each claim was to be out of the six year limitation period. In the first claim, the proposed defendant had since won a substantial sum from the . .
Cited – Harding v Wealands HL 5-Jul-2006
Claim in UK for Accident in Australia
The claimant had been a passenger in a car driven by his now partner. They had an accident in New South Wales. The car was insured in Australia. He sought leave to sue in England and Wales because Australian law would limit the damages.
Held: . .
Cited – Yorkshire Bank Finance Ltd v Mulhall and Another CA 24-Oct-2008
The bank had obtained a judgement against the defendant, and took a charging order. Nothing happened for more than twelve years, and the defendant now argued that the order and debt was discharged.
Held: The enforcement of the charging order . .
Lists of cited by and citing cases may be incomplete.

Limitation, Litigation Practice

Updated: 19 May 2022; Ref: scu.83230

Green and Another v Wheatley: CA 19 May 1999

Where a garage had been built upon land, and allowed to stay there for over twenty years, title had been acquired by adverse possession, and a right of way which might previously have existed over the land, had also been lost.

Judges:

Stuart Smith LJ, Laws LJ, Jonathan Parker LJ

Citations:

Gazette 03-Jun-1999, [1999] EWCA Civ 1442

Jurisdiction:

England and Wales

Land, Limitation

Updated: 19 May 2022; Ref: scu.81003

Clarke (Executor of the Will of Francis Bacon, Deceased) v Marlborough Fine Art (London) Ltd and Another: ChD 5 Jul 2001

Francis Bacon sold his paintings through the defendant agents for many years. The original contractual arrangement grew into a fiduciary one. The claimants asserted that the defendants were in breach of that fiduciary duty, the defendants asserted that the relationship remained contractual, and that it was now time barred.
Held: There may be a true constructive trust which would not be time barred, rather than a remedial constructive trust. The test was whether the trustee was a true trustee, whether of a constructive or an express trust. Nor was it clear that a court of equity would have time barred a claim in undue influence.

Judges:

Patten J

Citations:

Times 05-Jul-2001

Statutes:

Limitation Act 1980 36(1)(f)

Cited by:

Cited – McLaughlin and Others v Newall QBD 31-Jul-2009
The claimant asked the court to strike out the defence that the claimant had compromised his claim by agreement. The defendant had written letters critical of the claimants who were governors of a school which had disciplined his daughter a teacher . .
Lists of cited by and citing cases may be incomplete.

Agency, Trusts, Limitation

Updated: 19 May 2022; Ref: scu.79197

C v Mirror Group Newspapers and Others: CA 21 Jun 1996

Husband and wife were involved in a custody dispute. The father made serious but false allegations to the press. She now claimed in defamation, but he relied upon limitation. She said the facts had only become known to her much later.
Held: ‘Facts relevant to cause’ referred to those facts necessary to be pleaded but not in rebuttal.

Judges:

Neill, Morritt, Pill LJJ

Citations:

Times 15-Jul-1996, [1996] EMLR 518, [1997] 1 FCR 556, [1996] 2 FLR 532, [1996] 4 All ER 511, [1996] Fam Law 671, [1996] EWCA Civ 1290, [1997] 1 WLR 131

Links:

Bailii

Statutes:

Limitation Act 1980 32A

Jurisdiction:

England and Wales

Cited by:

Cited – Collins v Brebner CA 19-Jun-1997
The defendant solicitor appealed refusal of an order to strike out the claim. The claimant alleged breach of trust. The claimant asserted a fraudulent witholding of information to suggest that any breach of trust had happened. The defendant said . .
Cited – Khader v Aziz and Another QBD 31-Jul-2009
The defendant sought to strike out a claim in defamation. Acting on behalf of his client the solicitor defendant was said to have called a journalist and defamed the claimant. The words were denied.
Held: Assuming (which was denied) that the . .
Lists of cited by and citing cases may be incomplete.

Defamation, Media, Limitation

Updated: 19 May 2022; Ref: scu.78809

Cachia and Others v Faluyi: CA 11 Jul 2001

The words of the section had to be construed so as to make it compatible with the human rights convention. Accordingly the term ‘action’ in the Act was to be interpreted to mean an action where a writ was served. Children whose mother had been killed, had the human right to claim compensation for their loss of dependency. Whilst it was legitimate to impose certain restrictions on access to the courts, the effect of the words of the statute had not been considered or intended, and the court would read the section so as to make it compatible with the Act.

Citations:

Times 11-Jul-2001, Gazette 19-Jul-2001

Statutes:

Fatal Accidents Act 1976 2(3)

Jurisdiction:

England and Wales

Personal Injury, Limitation, Human Rights

Updated: 19 May 2022; Ref: scu.78816

Busby v Cooper; Busby v Abbey National plc; Busby v Lumby: CA 2 Apr 1996

The claimant sought damages after having bought a house after receiving an allegedly negligent report on the concrete. She had asked to be allowed to add a third party (the local authority who had passed the building) as a defendant, but the request was outside the primary limitation period and was refused and again on appeal. She now sought to appeal.
Held: Her appeal was allowed. It was within the court’s jurisdiction to try issues relationg to the primary facts which would decide how the limitation rules would be applied. Section 14(10(b) operated to extend the time limit provided in 14(4)(a), and therefore it was not necessary to issue a new set of proceedings. The joining of a third party after the initial limitation period had expired, remained possible. The claim was justiciable.

Citations:

Times 15-Apr-1996

Statutes:

Limitation Act 1980 14A(4)(a) 14A(4)(b)

Jurisdiction:

England and Wales

Citing:

Followed – Davies v Reed Stock and Co Ltd 1984
. .
Distinguished – Welsh Development Agency v Redpath Dorman Long Ltd CA 4-Apr-1994
A new claim was not deemed to have been made until the pleading was actually amended for limitation purposes, and should not be allowed after the limitation period had expired. The date of the application for leave to amend was not at issue. The . .
Lists of cited by and citing cases may be incomplete.

Limitation, Litigation Practice

Updated: 19 May 2022; Ref: scu.78778

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.

Judges:

Lord Dawson

Citations:

Times 06-May-1999, [1999] ScotCS 31

Links:

Bailii

Statutes:

Prescription and Limitation (Scotland) Act 1973 6

Jurisdiction:

Scotland

Cited by:

Appeal from – BP Exploration Operating Co Ltd v Chevron Shipping Company and Chevron Tankers (Bermuda) Ltd and Chevron Transport Corporation SCS 13-Apr-2000
. .
At Outer House – 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: 18 May 2022; Ref: scu.78533

Bowers v Kennedy: IHCS 28 Jun 2000

A landowner who had no alternative means of access to his land could not lose a right of way to it by a failure to use it. It was not a right of servitude, but rather an incident of the rights inherent as owner. The inapplicability of periods and rules of limitation in such cases was well established.

Citations:

Times 27-Jul-2000, [2000] ScotCS 178, [2000] ScotCS 179

Links:

Bailii, Bailii

Land, Limitation, Scotland

Updated: 18 May 2022; Ref: scu.78518

Batchelor v Marlow and Another: CA 12 Jul 2001

The applicant claimed parking rights as an easement acquired by prescription. At first instance the rights were recognised as an easement. The rights included parking during daylight hours during weekdays. The land-owner appealed on the ground that the extent of use claimed destroyed the owner’s ability to use the land, to the point where his ownership was illusory. The court agreed, and declared that there was no easement if it extended to that point.
Tuckey LJ asked: ‘Does an exclusive right to park six cars for 9.5 hours every day of the working week leave the plaintiff without any reasonable use of his land, whether for parking or anything else?’ and he gave the answer: ‘[The plaintiff’s] right to use his land is curtailed altogether for intermittent periods throughout the week. Such a restriction would, I think, make his ownership of the land illusory.’

Judges:

Henry LJ, Tuckey LJ, Kay LJ

Citations:

Gazette 12-Jul-2001, [2001] EWCA Civ 1051, [2003] 1 WLR 764

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd ChD 29-Jul-1992
A right to park was claimed as an easement.
Held: The question whether the right to park that had been claimed was consistent with the nature of an easement was one of degree: ‘A small coal shed in a large property is one thing. The exclusive . .
Cited – Dyce v Lady James Hay HL 1852
A claim was made for a prescriptive right for all the Queen’s subjects ‘to go at all times upon the . . appellant’s property . . for the purpose of recreation’.
Held: Leonards LC said that the right claimed was one that ‘cannot be maintained’ . .
Cited – Copeland v Greenhalf ChD 1952
If a right claimed by way of an easement would effectively deprive the servient owner of any reasonable user of the area of land over which it is exercisable, than that right is not capable of being an easement. The rights asserted here were both . .
Cited – Bilkus v London Borough of Redbridge 1968
The court was asked to construe the terms of a covenant given by the council to the claimant. . .
Cited – London and Blenheim Estates v Ladbroke Retail Parks Ltd CA 1-Jun-1993
The land-owner sold part of his land, granting easements over the retained land, and an agreement that, if further plots were purchased, similar easements would be granted. The agreement stated that the purchaser should have the right to give notice . .
Appeal from – Batchelor v Marlow and Another ChD 25-May-2000
The applicant claimed parking rights as an easement. If an easement was capable of arising by virtue of a deed of grant, it could also be acquired by prescription. This was such an easement. Use in the absence of planning permission did not vitiate . .

Cited by:

Cited – Moncrieff and Another v Jamieson and others HL 17-Oct-2007
The parties disputed whether a right of way over a road included an implied right for the dominant owner to park on the servient tenement.
Held: The appeal failed. ‘The question is whether the ancillary right is necessary for the comfortable . .
Cited – Polo Woods Foundation v Shelton-Agar and Another ChD 17-Jun-2009
The court considered whether the claimant had established a profit a prendre against the defendant neighbour’s land in the form of a right of pasturage, acquired either by lost modern grant or by prescription.
Held: The appeal succeeded, but . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 18 May 2022; Ref: scu.78279

Batchelor v Marlow and Another: ChD 25 May 2000

The applicant claimed parking rights as an easement. If an easement was capable of arising by virtue of a deed of grant, it could also be acquired by prescription. This was such an easement. Use in the absence of planning permission did not vitiate the acquisition by prescription, since the use did not become unlawful until a planning enforcement notice had been served.

Citations:

Times 07-Jun-2000, Gazette 25-May-2000, Gazette 08-Jun-2000, (2001) 82 P and CR 36

Cited by:

Cited – P and S Platt Ltd v Crouch and Another CA 25-Jul-2003
The claimant sought a declaration that certain easements had been included by implication in a conveyance of part of land to him.
Held: Since the easements were capable of subsisting at law, and existed as quasi-easements at the time, and did . .
Appeal from – Batchelor v Marlow and Another CA 12-Jul-2001
The applicant claimed parking rights as an easement acquired by prescription. At first instance the rights were recognised as an easement. The rights included parking during daylight hours during weekdays. The land-owner appealed on the ground that . .
Lists of cited by and citing cases may be incomplete.

Land, Road Traffic, Limitation

Updated: 18 May 2022; Ref: scu.78277

Battersea Freehold and Leasehold Property Company Ltd v Wandsworth London Borough Council: ChD 2 Mar 2001

The tenant of the applicant had occupied land adjacent to the tenanted land and belonging to the council respondent for more than 12 years. The applicant sought to assert that he had acquired possessory title. The tenant had however shared the keys when requested.
Held: The claimants appeal failed. Even if the tenant’s use of the land had not been permissive, in order to establish adverse possession the claimant had to show that its tenant had intended to exclude the whole world at large from the disputed land; The sharing of the keys by the tenant indicated that he had not viewed himself as asserting exclusive possession, by excluding the world at large.

Judges:

Rimer J

Citations:

Gazette 17-May-2001

Land, Limitation

Updated: 18 May 2022; Ref: scu.78291

In re Lloyd; Lloyd v Lloyd: CA 1903

The court was asked as to a mortgagee’s entitlement to require the mortgagor to pay all arrears of interest as a condition of redemption, even if some of the arrears would be statute-barred if the mortgagee were seeking to recover them by action, or to retain all such arrears on accounting to the mortgagor for the proceeds of a sale by the mortgagee.
Held: The mortgagee was not affected by the limitation statute because it was not seeking to recover the interest by bringing an action.

Citations:

[1903] 1 Ch 385

Land, Limitation

Updated: 18 May 2022; Ref: scu.277163

Holmes v Cowcher: ChD 1970

The court accepted the proposition put forward by counsel for the mortgagee that on an application by the mortgagor to redeem the mortgage, all the arrears of interest (amounting to almost 10 years) had to be paid as a condition of redemption, not just interest for the last 6 years.

Judges:

Stamp J

Citations:

[1970] 1 WLR 834

Cited by:

Cited – Yorkshire Bank Finance Ltd v Mulhall and Another CA 24-Oct-2008
The bank had obtained a judgement against the defendant, and took a charging order. Nothing happened for more than twelve years, and the defendant now argued that the order and debt was discharged.
Held: The enforcement of the charging order . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 18 May 2022; Ref: scu.277164

Poole Corporation v Moody: CA 1945

In relation to a power of sale, the subsection was treated by the Court solely as a provision which excluded the operation of section 2 in claims for equitable relief, without any mention of the possibility of it applying the section by analogy.

Judges:

Morton LJ

Citations:

[1945] KB 350

Statutes:

Limitation Act 1939 2(7)

Jurisdiction:

England and Wales

Cited by:

Cited – Yorkshire Bank Finance Ltd v Mulhall and Another CA 24-Oct-2008
The bank had obtained a judgement against the defendant, and took a charging order. Nothing happened for more than twelve years, and the defendant now argued that the order and debt was discharged.
Held: The enforcement of the charging order . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 18 May 2022; Ref: scu.277165

Arab Monetary Fund v Hashim and Others (Number 9): ChD 29 Jul 1994

There were two foreign defendants who were each liable to the plaintiff.
Held: The English court had jurisdiction to allocate the damages between them. Execution should not be stayed because the plaintiff should be allowed to retain the opportunity to commence that part of the proceedings, ie execution, in such jurisdiction as he thought fit.

Judges:

Chadwick J

Citations:

Times 11-Oct-1994, [1994] CLY 3555

Statutes:

Civil Liability (Contributions) Act 1978, Civil Evidence Act 1968 2 4 6

Cited by:

Cited – IS Innovative Software Ltd v Howes CA 19-Feb-2004
It was alleged that the defendant had backdated contracts of employment to a time when he had been employed by the claimant, and had induced staff to leave. The company appealed dismissal of its claim.
Held: The advantage of the court . .
Cited – Kuwait Oil Tanker Company Sak; Sitka Shipping Incorporated v Al Bader;Qabazard; Stafford and H Clarkson and Company Limited; Mccoy; Kuwait Petroleum Corporation and Others CA 28-May-1999
The defendants having been found to have acted dishonestly to the tune of pounds 130,000,000 sought a stay of execution pending an appeal. The judge had found that the appeal was arguable. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Evidence, Limitation

Updated: 17 May 2022; Ref: scu.77850

Fowley Marine (Emsworth) Ltd v Gafford: 1968

A paper title owner of land is deemed to be in possession of the fee simple unless and until someone else acquires possession of it

Citations:

[1968] 2 QB 618

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: 17 May 2022; Ref: scu.267382

Brown v North British Steel Foundry Ltd: OHCS 1968

The 1954 Act passed on 4 June 1954 but was not to affect any action or proceeding if the cause of action arose before that date. The Lord Ordinary found that the pursuer who sought damages for pneumoconiosis did not begin to suffer from until 1955. But the pursuer contended that the injury had been done to his lungs by 1949 because he had been inhaling dangerous dust for some years before that and, as subsequent events showed, he was susceptible to pneumoconiosis in 1949. So the cause of action had arisen at that date. The First Division of the Court of Session rejected that argument.
Held: Lord President Clyde said that there was no cause of action in 1949 and added: ‘To create a cause of action, injuria and damnum are essential ingredients. In the present case there is no evidence of any injuries to the workman’s lungs in 1949. He had then merely a deposit of dust in his lungs, which might or might not subsequently create an injury. But, in addition, he had then sustained no damnum. He could not then have been awarded damages for any loss, because at that stage he had sustained no loss of wages and had suffered none of the discomforts and disabilities which, he avers, followed upon the onset of pneumoconiosis and which in fact flowed from the outbreak of that disease in 1955.’

Judges:

Lord President Clyde

Citations:

1968 SC 51

Statutes:

Law Reform (Limitation of Actions etc) Act 1954

Cited by:

Cited – Johnston v NEI International Combustion Ltd; Rothwell v Chemical and Insulating Co Ltd; similar HL 17-Oct-2007
The claimant sought damages for the development of neural plaques, having been exposed to asbestos while working for the defendant. The presence of such plaques were symptomless, and would not themselves cause other asbestos related disease, but . .
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.

Scotland, Personal Injury, Limitation

Updated: 17 May 2022; Ref: scu.260124

Watson-Towers Ltd v McPhail: 1986

The pursuer submitted a motion for summary judgment for the value of goods which had been supplied subject to a reservation of title clause. The pursuer’s evidence consisted of a letter from the defender making an offer expressed to be without prejudice but which attached a schedule listing the goods in its possession.
Held: The schedule was admissible because it was, on the true construction of the letter, not a ‘hypothetical admission or concession for the purpose of securing a settlement’ but a statement of fact.

Judges:

Lord Wylie

Citations:

1986 SLT 617

Cited by:

Followed – Daks Simpson Group plc v Kuiper 1994
The creditor sought summary judgment for an account for commissions earned. In a ‘without prejudice’ letter the defendant’s director said that he was prepared to accept that he had received such commissions in stated amounts.
Held: Lord . .
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.

Scotland, Contract, Limitation

Updated: 17 May 2022; Ref: scu.243123

Littlewood and George Wimpey and Co Ltd v British Overseas Airways Corporation: CA 1953

The words ‘liable to pay’ in s 3 carried their usual meaning as ‘responsible in law’.

Judges:

Singleton LJ

Citations:

[1953] 2 QB 501, [1953] 2 All ER 915, [1953] 3 WLR 553

Jurisdiction:

England and Wales

Cited by:

Appeal from – Wimpey (George) Co Ltd v British Overseas Airways Corporation HL 1954
A joint tortfeasor could escape liability in contribution proceedings if it had been unsuccessfully sued by the injured person in an action brought outside the relevant limitation period. Where a court has to decide between two competing cases, if . .
Lists of cited by and citing cases may be incomplete.

Limitation, Damages

Updated: 17 May 2022; Ref: scu.238753

Wolmershausen v Gullick: 1893

Claim for contribution between co-securities. Wright J reviewed the development of the entitlement to contribution from Justinian’s statement of it, through its application by the custom of the City of London in the time of Queen Elizabeth to the time of his judgment.

Judges:

Wright J

Citations:

[1893] 2 Ch 514

Cited by:

Mentioned – Aer Lingus v Gildacroft Ltd and Another CA 17-Jan-2006
The claimant had been found liable to pay damages for personal injury, and now sought contribution from the defendants. The defendants said that they were out of time since the contribution action had been commenced more than 2 years after the . .
Cited – Wimpey (George) Co Ltd v British Overseas Airways Corporation HL 1954
A joint tortfeasor could escape liability in contribution proceedings if it had been unsuccessfully sued by the injured person in an action brought outside the relevant limitation period. Where a court has to decide between two competing cases, if . .
Lists of cited by and citing cases may be incomplete.

Limitation, Damages, Contract

Updated: 17 May 2022; Ref: scu.238752

Phillips-Higgins v Harper: QBD 1954

A claim was made to recover monies due under a contract where the plaintiff had failed to realise that the balance was due to her, and by that mistake the action was concealed from her.
Held: Pearson J said: ‘But that is not sufficient. Probably provision (c) applies only where the mistake is an essential ingredient of the cause of action, so that the statement of claim sets out, or should set out, the mistake and its consequences and pray for relief from those consequences. In this case the statement of claim sets out that sums became due and that only a smaller amount of X pounds has been paid, and the prayer is for an account to ascertain the sums still due and for payment of them when so ascertained. This action is not for relief from the consequences of mistake within the meaning of section 26.’
When asking when a cause of action began under the section, the essential question was whether the action was for relief from the consequences of a mistake, an example of which was an action for the recovery of money paid in consequence of a mistake. The section was intended to be a narrow one, because any wider provision would have opened too wide a door of escape from the general principle of limitation.

Judges:

Pearson J

Citations:

[1954] 1 QB 411, [1954] 2 All ER 51

Statutes:

Limitation Act 1939 26

Jurisdiction:

England and Wales

Cited by:

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 – Test Claimants In The Franked Investment Income Group Litigation v Inland Revenue SC 23-May-2012
The European Court had found the UK to have unlawfully treated differently payment of franked dividends between subsidiaries of UK companies according to whether all the UK subsidiaries were themselves UK based, thus prejudicing European . .
Lists of cited by and citing cases may be incomplete.

Limitation

Updated: 17 May 2022; Ref: scu.236540

Smirk v Lyndale Developments Ltd: ChD 1975

The court considered the doctrine that a tenant acquiring title to land by adverse possession, did so on behalf of hs landlord.
Held: The cases demonstrated that ‘the law . . has got into something of a tangle’, but the doctrine, at least as summarised by Parke B, appeared to be ‘in accordance with justice and common sense’. If a tenant occupies land belonging to the landlord but not included in the demise, that land is presumed to be an addition to the land demised to the tenant, so that it becomes subject to the terms of the tenancy and must therefore be given up to the landlord when the tenancy ends. For there to be a surrender of an existing lease by operation of law because of the grant of a new lease,

Judges:

Pennycuick V-C

Citations:

[1975] Ch 321, [1975] 1 All ER 690

Jurisdiction:

England and Wales

Citing:

Cited – Kingsmill v Millard 20-Jun-1855
Parke B set out the doctrine that a tenant acquiring adjoining land by adverse possession acquires it on behalf of his landlord: ‘It is laid down in all the cases – whether the inclosed land is part of the waste, or belongs to the landlord or a . .
Approved – Tabor v Godfrey 1895
Where a tenant occupies land adjacent to land demised to him by the landlord, he occupies it as additional to the tenancy, and subject to its terms. . .

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 . .
Appeal from – Smirk v Lyndale Developments Ltd CA 2-Jan-1975
Judgment upheld . .
Cited – Trustees In the Charity of Sir John Morden v Mayrick; Graham v Mayrick CA 12-Jan-2007
The claimant had owned tracts of land in London for very many years, but the title deeds had been lost. The defendant had purchased a part from a company who had in turn purchased from the claimants, but the parties disputed an adjacent strip of . .
Cited – Graham and others v Mayrick ChD 23-Mar-2006
The claimants sought specific performance of a compromise agreement with the defendant after a dispute over a strip of land. The defendant appealed a finding that the claimants had shown satisfactory title.
Held: ‘It has long been established . .
Cited – Long v Tower Hamlets London Borough Council ChD 20-Mar-1996
The parties had agreed for a lease, and the tenant entered possession, but no formal lease was executed. The tenant stopped paying rent in 1977 or 1984. He now claimed rectification of the registers to show him as proprietor. The landlord argued . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation, Landlord and Tenant

Updated: 17 May 2022; Ref: scu.228931

Kingsmill v Millard: 20 Jun 1855

Parke B set out the doctrine that a tenant acquiring adjoining land by adverse possession acquires it on behalf of his landlord: ‘It is laid down in all the cases – whether the inclosed land is part of the waste, or belongs to the landlord or a third person – that the presumption is, that the tenant has inclosed it for the benefit of his landlord unless he has done some act disclaiming the landlord’s title. . . The encroachment must be considered as annexed to the holding, unless it clearly appears that the tenant made it for his own benefit.’

Judges:

Parke B

Citations:

(1855) 11 Exch 313, (1855) 19 JP 661, (1855) 3 CLR 1022, 156 ER 849, [1855] EngR 616, (1855) 156 ER 849

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Smirk v Lyndale Developments Ltd ChD 1975
The court considered the doctrine that a tenant acquiring title to land by adverse possession, did so on behalf of hs landlord.
Held: The cases demonstrated that ‘the law . . has got into something of a tangle’, but the doctrine, at least as . .
Cited – 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 . .
Cited – Childs and Another v Vernon CA 16-Mar-2007
The parties disputed the boundary between their properties, alleging various trespasses. The judge ordered a single expert witness. The court had been unable to establish the line of the boundary from the conveyances or the Land Registry plans. . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation, Landlord and Tenant

Updated: 17 May 2022; Ref: scu.228930

Telfair Shipping Operation SA v Inersea Carriers SA, the Caroline P: 1984

A claim was made in contract based on an indemnity.
Held: The claim was not time-barred. Time normally begins to run against a claim on a general indemnity only from the moment when the liability of the indemnified is accepted by him or determined against him by the court, because, in the absence of a provision to the contrary, an indemnity cannot be called on by the indemnified unless and until the indemnified has paid the money in respect of which he claims the indemnity.

Judges:

Neill J

Citations:

[1985] 1 WLR 553, [1984] 2 Lloyd’s Rep 266

Citing:

Distinguished – 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 – 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 . .
Mentioned – Aer Lingus v Gildacroft Ltd and Another CA 17-Jan-2006
The claimant had been found liable to pay damages for personal injury, and now sought contribution from the defendants. The defendants said that they were out of time since the contribution action had been commenced more than 2 years after the . .
Lists of cited by and citing cases may be incomplete.

Limitation, Contract

Updated: 16 May 2022; Ref: scu.221432

Mount Carmel Investments Limited v Peter Thurlow Limited: CA 1988

The court considered a defence to an assertion of adverse possession, that the plaintiff had given notice of his intention to recover the land: ‘no one, either lawyer or non-lawyer, would think that a householder ceases to be in possession of his house simply by reason of receiving a demand that he should quit.
On the owner’s argument time starts to run afresh by making a demand for possession. That is in flat contradiction to the long-recognised position and the statutory scheme where a squatter is in possession of another’s land. Unless the squatter vacates or gives a written acknowledgment to the owner, the owner has to issue his writ within the prescribed time limit. Otherwise he is barred, because by section 15(1) he is barred from bringing any action to recover the land after the expiration of the 12-year period.’
‘We do not accept that, in a case where one person is in possession of property, and another is not, the mere sending and receipt of a letter by which delivery up of possession is demanded, can have the effect in law for limitation purposes that the recipient of the letter ceases to be in possession and the sender of the letter acquires possession.’
‘If recovery of land is time-barred by adverse possession the right to recover mesne profits is lost, just as is the right to recover rent’

Judges:

Nicholl LJ

Citations:

[1988] 1 WLR 1078, [1988] 3 All ER 129

Statutes:

Land Registration Act 1925 15(1) 75(1)

Jurisdiction:

England and Wales

Citing:

Applied – In Re Jolly CA 1900
Mrs Jolly let a farm to her son who paid rent until 1881, but not thereafter, and her title to the farm was extinguished in 1893. She died in 1898. The question which arose was whether at her death any rent arrears remained due.
Held: The . .

Cited by:

Cited – Markfield Investments Ltd v Evans CA 9-Nov-2000
The claimants were paper owners of land occupied by the defendant. The claimant said the acquiescence had been interrupted by an abortive court action by the claimant’s predecessor in title.
Held: With regard to any particular action the . .
Cited – Crown Estate Commissioners v Roberts and Another ChD 13-Jun-2008
The defendant claimed ownership as Lord Marcher of St Davids of historical rights in foreshores in Pembrokeshire. The claimants sought removal of his cautions against first registration.
Held: Lewison J explored the history of manorial . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 16 May 2022; Ref: scu.197882

Pulleyn v Hall Aggregates (Thames Valley) Ltd: 1993

Citations:

(1993) 65 P and CR 276

Jurisdiction:

England and Wales

Cited by:

Cited – Mayor and Burgesses of London Borough of Hounslow v Anne Minchinton CA 19-Mar-1997
The defendant asserted title to a strip of land by adverse possession. The judge had held that the occupation by the claimant had been insufficient to establish possession.
Held: The use of the land as a garden for compost heaps and similar . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 16 May 2022; Ref: scu.195611

Purbrick v Hackney London Borough Council: ChD 26 Jun 2003

The property fell into disrepair. The claimant began to use it for storage, carrying out some refurbishment. He now claimed to own the property by adverse possession.
Held: Littledale was not to be followed unless the facts were strictly on all fours. He had done all that was possible to occupy and retain possession of the premises. He was not required to demonstrate that he had intended to claim ownership of the building but only that he intended to exclude the world. That he had done. ‘ . . . it is to some extent implicit in the present law of adverse possession that an owner of property who makes no use of it whatever should be expected to keep an eye on the property to ensure that adverse possession rights are not being clocked up. A period of 12 years is a long period during which to neglect a property completely.’

Judges:

Mr Justice Neuberger

Citations:

Gazette 10-Jul-2003, [2004] 1 P and CR 553

Jurisdiction:

England and Wales

Citing:

Cited – Littledale v Liverpool College CA 1900
The mere storage of items in a property was insufficient to demonstrate the necessary intention to dispossess the rightful owner. It was a mere exercise of the rights under an easement. Enclosure of land is not necessarily decisive. Lord Lindley MR . .

Cited by:

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

Land, Limitation

Updated: 16 May 2022; Ref: scu.184716

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 duty. In 1981 he began to suffer mesothelioma, a long-delayed result of his exposure, and he died in May 1982. Proceedings were issued in April 1984. It was agreed that any cause of action the deceased may have had was barred by section 21 of the 1939 Act one year after his employment had ceased, namely in April 1944. The issue was whether the 1963 Act or the 1975 Act revived the deceased’s cause of action.
Held: Any action time-barred before 4 June 1954 remained time-barred.
Lord Bridge thought it ‘beyond question that the Act of 1963 operated retrospectively, when the appropriate conditions were satisfied, to deprive a defendant of an accrued time bar in respect of a claim for damages for personal injuries in which the cause of action had accrued since 4 June 1954 and which had, therefore, been subject to the three year period of limitation introduced by the Act of 1954. This is the combined effect of the relevant provisions of sections 1, 6 and 15.’
Lord Bridge accepted that: ‘Consistently with the presumption that a statute affecting substantive rights is not to be construed as having retrospective operation unless it clearly appears to have been so intended, it seems to me entirely proper, in a case where some retrospective operation was clearly intended, equally to presume that the retrospective operation of the statute extends no further than is necessary to give effect either to its clear language or to its manifest purpose. Construing sections 2A to 2D of the Act of 1939 in the light of section 3 of the Act of 1975, I think that full effect is given both to the language and to the purposes of the legislation if it is held retrospectively applicable to all personal injury actions previously governed by the three year limitation period under the Act of 1954, whether as then enacted or as amended by the Act of 1963. Conversely, I can find nothing in the language or discernible purposes of the statute which leads clearly, let alone avoidably, to the conclusion that defendants previously entitled to rely on the accrued six year and one year time bars under the original Act of 1939 which the Act of 1963 left intact were intended to be deprived of those accrued rights by the Act of 1975.’

Judges:

Lord Bridge of Harwich, Lord Fraser of Tullybelton, Lord Brightman, Lord Ackner and Lord Oliver of Aylmerton

Citations:

[1988] AC 228, Gazette 25-Nov-1987, [1987] 3 All ER 694, [1987] 3 WLR 1009

Statutes:

Limitation Act 1939 2A(1)

Jurisdiction:

England and Wales

Citing:

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 . .
Criticised – 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 by:

Cited – Nicholls v London Borough of Greenwich CA 3-Apr-2003
The claimant had been employed by the respondent, and earned a pension. She challenged legislation which appeared to operate retrospectively to reduce that pension. The respondent argued that the amount agreed to be paid exceeded the maximum . .
Cited – 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 . .
Cited – Bolton Metropolitan Borough Council v Municipal Mutual Insurance Ltd CA 6-Feb-2006
The deceased had come into contact with asbestos when working on building sites for more than one contractor. The claimant here sought contribution from the defendants for the damages it had paid to his estate. The issue was as to liability on . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Limitation

Updated: 16 May 2022; Ref: scu.180539

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 is shown, the court will strive to uphold the right by presuming that it had a lawful origin.’

Judges:

Lord Denning MR, Stamp LJ

Citations:

[1974] 1 Ch 186

Statutes:

Law of Property Act 1925 40

Jurisdiction:

England and Wales

Cited by:

Cited – 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.
Cited – 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 . .
Cited – Inglorest Investments Ltd v Robert Campbell and Another CA 2-Apr-2004
The appellants appealed an order that property be part of the estate of the deceased. There had been an agreement to assign the reversion of the lease to the claimant. That was not completed, but he later acquired the freehold reversion. No written . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 16 May 2022; Ref: scu.179839

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 could not do so. He was not prejudiced by the primary limitation period since he had properly issued his initial claim within it; there was accordingly no discretion to be exercised under section 33 which by subsection (1)(a) postulates that the primary limitation provisions ‘prejudice the plaintiff’. The court may not exercise its power to disapply the ordinary time limit in a personal injury action under section 33 of the Limitation Act where the plaintiff had brought an action before the expiry of that limit and was bringing a second action in which the application under section 33 was being made.
Lord Diplock: ‘So, to entitle the court to give a direction under [section 33(1)], there must be some prejudice to the plaintiff and the cause of that prejudice must be the requirement under [section 11] that he should start his action before the expiry of the primary limitation period.
My Lords, in my opinion, once a plaintiff has started an action (the first action) within the primary limitation period it is only in the most exceptional circumstances that he would be able to bring himself within section 2D in respect of a second action brought to enforce the same cause of action. If the first action is still in existence, as it was in the instant case when the matter was before the Master or the judge, cadit quaestio; he has not be prevented from starting his action by section 2A or section 2B at all, so the provisions of those sections cannot have caused him any prejudice. Does it make any difference if the first action is no longer in existence at the time of the application under section 2D either because it has been struck out for want of prosecution or because it has been discontinued by the plaintiff of his own volition? In my view, it does not. These are self inflicted wounds. The provisions of section 2A caused him no prejudice at all; he was able to start his action. The only cause of the prejudice to him in the case of dismissal for want of prosecution is dilatoriness which took place after the action was started whether on his own part or on the part of his legal advisors. In the case of discontinuance the only cause of prejudice is his own act.
The only exception I have been able to think of where it might be proper to give a direction under section 2D, despite the fact that the plaintiff had previously started an action within the primary limitation period but had subsequently discontinued it, would be a case in which the plaintiff had been induced to discontinue by a misrepresentation or other improper conduct by the defendant; but there is no suggestion of this in the instant case.
I would allow the appeal upon the ground that Mr Walkley, having previously started an action for the same cause of action within the primary limitation period prescribed by [section 11], cannot bring himself within section 2A at all. Any application by him under that section would fail in limine.’ and ‘Despite the use of the phraseology ‘an action shall not be brought,’ it is trite law that technically the Limitation Act does not prevent the commencement of an action by the Plaintiff after the limitation period has expired. What it does is to provide the defendant with a cast-iron defence if he chooses to avail himself of it; which he may do either by pleading it or, in a case where the action is in indisputably statute-barred, by taking out a summons to have it dismissed as vexatious. For the sake of brevity, however, I shall speak of the effect of the expiry of a primary limitation period as preventing the starting of the action.’
HL Wilberforce L: ‘My Lords, as a matter of principle I have very great difficulty in understanding how in this case or indeed in any case that I can imagine where an action has been started within the normal limitation period, section 2D can be invoked at all. The section opens with the words:
‘(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which- (a) the provisions of section 2A or 2B of this Act prejudice the plaintiff . .
The provisions of section 2A are those which require an action for personal injuries to be brought within three years. So subsection (1)(a) must be contemplating a case in which, because the three years have expired without an action being brought, section 2A applies to the prejudice of the plaintiff. But if the plaintiff has brought his action within the three years, how has he been prejudiced by section 2A? This I fail to understand. If this argument is sound, the respondent’s case fails in limine. He brought his first action within the normal limitation period, and if he has suffered any prejudice, it is by his own inaction and not by the operation of the Act. However, since the Court of Appeal did not decide the case on this argument, or, it seems, consider it, and since the provision is a new one, understanding of which may have to come with time, I will consider the appeal on the assumption that these initial words may apply to the case.’
Viscount Dilhorne: ‘In my opinion this appeal should be allowed for it cannot be said that it was the provisions of section 2A (that is to say, the imposition of the three year period after which an action such as this cannot be proceeded with without the directions of the court) which prejudiced the respondent when within that period he brought an action for damages for the same personal injuries and in respect of the same cause of action as in his second action. He was prejudiced by his delay in proceeding with the first action and by his discontinuance of that action, not by the provisions of section 2A.’

Judges:

Wilberforce Lord, Lord Diplock, Viscount Dilhorne, Lord Edmund-Davies and Lord Keith of Kinkel

Citations:

[1979] 1 WLR 606, [1979] 2 All ER 548

Statutes:

Limitation Act 1963

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Dimsey; Regina v Allen CA 14-Jul-1999
A deeming section could create a taxation liability, even where the liability appeared to be duplicated. The clause under which the foreign income of a company came to be chargeable did not affect the existing liability to pay tax on the sums so . .
Appeal from – Walkley v Precision Forgings Ltd CA 1978
The plaintiff appealed the strict application of the limitation laws against his claim. He had been injured whilst working as a grinder. He began one claim which lapsed, and began a second claim outside the limitation period, requesting the court to . .
Cited – Firman v Ellis CA 1978
Writs had been issued within the limitation period, but then allowed to lapse.
Held: Section 2D gave a wide discretion to the court which was not limited to a residual class of case or to exceptional cases.
Ormrod LJ said: ‘The appellants . .

Cited by:

Cited – Piggott v Aulton (Deceased) CA 29-Jan-2003
The claimant had issued proceedings against the deceased after his death, but before a personal representative had been appointed. They later discontinued and re-issued against the person appointed by the court to defend the action. The defendant . .
Cited – 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 . .
Explained – Deerness v John R Keeble and Son (Brantham) Ltd HL 1983
The plaintiff suffered very serious injuries as a passenger in a car, and a writ was issued within the three-year period against the driver and the owner of the car whose insurers made a substantial interim payment. The writ was not served, nor . .
Cited – Forward v Hendricks CA 6-Dec-1996
. .
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 . .
Explained – 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 – Mcevoy v AA Welding and Fabrication Ltd CA 15-Dec-1997
Where a first writ issued within the primary limitation period is itself ineffective (although not a nullity) through having been issued variously without consent against a company in liquidation.
Held: The Walkley principle does not apply to . .
Cited – White v Glass CA 17-Feb-1989
The plaintiff had sued his club under its name, but it was an unincorporated association, and the action was stricken out as improperly constituted. The first writ issued within the primary limitation period but was ineffective. The defendant . .
Distinguished – Re Workvale Ltd (In Liquidation) CA 8-Apr-1992
A limited company was correctly restored to the register from dissolution so that its insurers could face an arguable claim. Where a first writ issued within the primary limitation period was ineffective (although not a nullity) through having been . .
Cited – Clay v Chamberlain QBD 2002
The claimant sought the judge’s discretion to disapply the rule in Walkley. The judge characterised the defendant’s conduct as ‘though not improper, sufficiently blameworthy to result in a situation which was at any rate analogous to an estoppel and . .
Cited – Herbert George Snell and others v Robert Young and Co Limited and others CA 21-Nov-2002
The claimants had sought damages for poisoning from organophosphates used in sheep dipping. Evidence linking the injuries to the use of the chemicals had not been found, and the actions struck out as an abuse of process. The group litigation had . .
Confined to its facts – Jacqueline Adam v Rasal Ali CA 21-Feb-2006
The defendant sought damages against the defendant for personal injury from his alleged negligence. Her action was struck out and she recommenced the action. The defendant pleaded that she was out of time. The claimant said that the first action . .
Discussed – Chappell v Cooper CA 1980
The plaintiff’s writ had not been served within the required time, and it had become too late to extend its validity. The plaintiff isued a second writ. The defendant argued limitation. Counsel for the plaintiffs sought to distinguish Walkley on the . .
Cited – A v Hoare; H v Suffolk County Council, Secretary of State for Constitutional Affairs intervening; X and Y v London Borough of Wandsworth CA 12-Apr-2006
Each claimant sought damages for a criminal assault for which the defendant was said to be responsible. Each claim was to be out of the six year limitation period. In the first claim, the proposed defendant had since won a substantial sum from the . .
Overturned – 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 . .
Distinguished – Rose v Express Welding Ltd CA 21-Jan-1986
. .
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 – McDonnell and Another v Walker CA 24-Nov-2009
The defendant appealed against the disapplication of section 11 of the 1980 Act under section 33.
Held: The appeal succeeded. The defendant had not contributed significantly to the delay: ‘the defendant received claims quite different in . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Limitation

Updated: 16 May 2022; Ref: scu.179321

Attorney General v Cocke: ChD 1988

Judges:

Harman J

Citations:

[1988] 1 Ch 414

Statutes:

Limitation Act 1980 21(3)

Jurisdiction:

England and Wales

Cited by:

Cited – Henchley and Others v Thompson ChD 16-Feb-2017
The Claimants sought an order directing the Defendant to provide a full account of his dealings with the assets of the two trusts as a trustee or as a de facto trustee.
Held: The court has a discretion whether or not to make an order for an . .
Lists of cited by and citing cases may be incomplete.

Limitation, Trusts

Updated: 16 May 2022; Ref: scu.608336

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 five years, if the defendant should regularly pay the interest. But it was also provided that the repayment of the loan could be accelerated in two circumstances. One arose if the borrower died before the expiration of the term, in which case it would be lawful ‘to call in the said principal sum upon giving to the executors or administrators six calendar months’ notice in writing’ of the intention to call in the loan. And the second was that if the borrower: ‘should make default in payment of any quarterly payment of interest as aforesaid for the period of twenty-one days next after the same should become payable, it should be lawful for [the creditor] immediately upon the expiration of such twenty-one days to call in and demand payment of the said principal sum and all interest then owing or accruing in respect thereof.’ The action to recover the loan was commenced more than six years after 21 days had run following the defaulting payment of a quarterly instalment of interest, but there was no demand prior to the service of the writ separate from the issue and service of that writ. So the issue before the court was whether in those circumstances the claim was time-barred, or whether it was saved from being time-barred by the absence of any formal demand prior to the issue of the writ.
Held: No such demand was necessary, and the claim was time barred.
Lindley LJ said: ‘The agreement is one reasonably easy to be understood. It provides for a loan for five years, subject to a provision that if default is made in punctual payment of interest, the principal shall be recoverable at once. Now, the Statute of Limitation (21 Jac. I, c. 16) enacts that such actions as therein mentioned including ‘all actions of debt grounded upon any lending or contract without specialty’ shall be brought ‘within six years next after the cause of such action or suit, and not after.’ This expression ’cause of action’ has been repeatedly the subject of decision, and it has been held particularly in Hemp v. Garland 4 QB 519, decided in 1843, that the cause of action arises at the time when the debt could first have been recovered by action. The right to bring an action may arise on various events, but it has always been held that the statute runs from the earliest time at which an action could be brought.’
Fry LJ said: ‘The agreement contains a stipulation that the lender shall not call in the principal sum for a period of five years, if the borrower should so long live, and should duly and regularly pay the interest. This implies a contract by the borrower that the principal debt should be paid at once on the death of the borrower, or on default in payment of interest. The subsequent provisions imply a contract by the lender not to enforce payment after the death of the borrower until the expiration of a six months’ notice, and a contract not to enforce payment of the capital for default in payment of interest until twenty-one days after such default, thus giving the borrower further time. Subject to the stipulations, the implied contract to pay the principal remained in force. The principal, therefore, became payable twenty days after the first quarterly instalment of interest became due, and from that time the statute of limitations began to run. If authority is wanted, Hemp v. Garland 4 QB 519 is in point.’
Lopes LJ said: ‘Now, when first had the plaintiff a cause of action? When default was made for twenty-one days in payment of an instalment of interest. Hemp v. Garland (1842) 62 R.R. 423, is in point.’

Judges:

Fry LJ, Lindley LJ, Lopes LJ

Citations:

[1891] 2 QB 509

Jurisdiction:

England and Wales

Citing:

Approved – 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 . .

Cited by:

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

Updated: 16 May 2022; Ref: scu.605194

Re Pauling’s Settlement Trusts: ChD 1962

Family money had been placed into a trust to be managed by a bank. It was said that the bank had wrongly advanced money to the daughter allowing her to fritter away large parts of the capital
Held: The bank had misunderstood the power of advancement given, and was liable to replace nearly pounds 15,000 as having been expended in breach of trust for which they could be compelled to account.
Wilberforce J said: ‘The . . court has to consider all the circumstances in which the concurrence of the cestui que trust was given with a view to seeing whether it is fair and equitable that, having given his concurrence, he should afterwards turn round and sue the trustees; . . subject to this, it is not necessary that he should know that what he is concurring in is a breach of trust, provided that he fully understands what he is concurring in, and . . it is not necessary that he should himself have directly benefited by the breach of trust.’
Where a limitation period applies then it it is not open to the court to consider the question of laches.

Judges:

Wilberforce J

Citations:

[1962] 1 WLR 86

Statutes:

Trustee Act 1925

Jurisdiction:

England and Wales

Cited by:

Appeal from – Re Pauling’s Settlement Trusts (No.1) CA 29-May-1963
Property had been placed in trust for the daughter of the family, fearing that she might fritter it away. The trust was managed by the bank. The judge had found that, having misunderstood the powers of advancement given, the bank was liable to repay . .
Cited – Pullan v Wilson and Others ChD 28-Jan-2014
The court was asked difficult questions concerning the reasonableness of the remuneration charged to a number of family trusts by a professional trustee.
Held: Excessive claims for fees had been made, and the trustees were ordered to repay . .
Considered – Green and others v Gaul and others CA 28-Jul-2006
The court considered the validity and effect of a compromise agreement reached to settle dispute in administration of estate. The time for making a claim against the executor of an estate begins to run from the time when the executor has paid the . .
Cited – Henchley and Others v Thompson ChD 16-Feb-2017
The Claimants sought an order directing the Defendant to provide a full account of his dealings with the assets of the two trusts as a trustee or as a de facto trustee.
Held: The court has a discretion whether or not to make an order for an . .
Lists of cited by and citing cases may be incomplete.

Trusts, Limitation

Updated: 15 May 2022; Ref: scu.534162

Barnsley Brewery Co Ltd v RBNB: ChD 1997

Walker J noted that the traditional view of brewing (where source and quality of water was important), reflected the view of general beer drinkers who were conscious that beer from certain regions was particularly good, and said: ‘The traditional view is that the source and quality of water is important for brewing . . The traditional view may be of some importance here, as reflecting the view of the general public, including the generality of beer drinkers.’
Goodwill can be acquired by ‘de facto assumption’ or ‘adverse possession’. The relevant time for determining whether there has been a passing off can be the date when the passing off was first threatened.
On an application for an interim injunction in such a case the court may allow for the strengths of the parties’ respective cases.

Judges:

Robert Walker J

Citations:

[1997] FSR 462

Jurisdiction:

England and Wales

Intellectual Property, Limitation

Updated: 15 May 2022; Ref: scu.526098

Mabro v Eagle, Star and British Dominions Insurance Co Ltd: CA 1932

Scrutton LJ said: ‘In my experience the Court has always refused to allow a party or a cause of action to be added where, if it were allowed, the defence of the Statute of Limitations would be defeated. The Court has never treated it as just to deprive a defendant of a legal defence.’

Judges:

Scrutton LJ

Citations:

[1932] 1 KB 485

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: 15 May 2022; Ref: scu.415954

Hodsden v Harridge: 1714

Datt aur ard and stat. de 21 Jac. ca. 16 de Limit’ plead. Semble q; nest deins le stat. Ne dett pur escape ne dismes ne sur Stat. de Scandalum Magnaturn.

Citations:

[1714] EngR 286, (1714) 1 Sid 415, (1714) 82 ER 1189 (B)

Links:

Commonlii

Limitation

Updated: 15 May 2022; Ref: scu.391109

Allen v England: 1862

The court considered a claim for land by adverse possession against the owner on paper. Erle CJ said: ‘It may be taken that the plaintiff had the beneficial occupation for more than twenty years, and if that will give him a title, I will give him leave to move. But, in my judgment, every time Cox put his foot on the land it was so far in his possession that the statute would begin to run from the time when he was last upon it.’

Judges:

Erle CJ

Citations:

[1862] EngR 1, (1862) 3 F and F 49, (1862) 176 ER 22

Links:

Commonlii

Cited by:

Cited – Zarb and Another v Parry and Another CA 15-Nov-2011
The parties disputed the position of the boundary between their neighbouring properties. The appellant Z had succeeded in establishing that the the boundary was as they decribed on paper, but the respondents had succeeded in their claim for adverse . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 15 May 2022; Ref: scu.286167

Kaufmann Brothers v Liverpool Corporation: KBD 1916

It was argued that a claim under the 1886 Act was a claim for ‘alleged neglect or default’ within the meaning of the 1893 Act, so that the claim was time-barred under that Act.
Held: The argument failed. The 1893 Act did not apply.
Lush J said: ‘In this case the police authority failed to fix the compensation to the satisfaction of the plaintiffs and they brought this action. It was an action to recover compensation under the statute; it was not brought to recover damages for any default on the part of the police authority; it was simply an action to recover such an amount as the county court judge might think right to allow as compensation for the damage done to the plaintiffs’ property’.

Judges:

Lush J, Rowlatt J

Citations:

[1916] 1 KB 860

Statutes:

Public Authorities Protection Act 1893, Riot (Damages) Act 1886

Cited by:

Cited – Bedfordshire Police Authority v Constable and others ComC 20-Jun-2008
The authority insured its primary liability for compensation under the 1886 Act through the claimants and the excess of liability through re-insurers. The parties sought clarification from the court of the respective liabilities of the insurance . .
Cited – Yarl’s Wood Immigration Ltd and Others v Bedfordshire Police Authority CA 23-Oct-2009
The claimant sought to recover the costs of damage to their centre following a riot, saying that under the 1886 Act, they were liable. It appealed against a ruling that they were unable to claim as a public authority, saying that the 1886 Act was . .
Lists of cited by and citing cases may be incomplete.

Police, Limitation

Updated: 15 May 2022; Ref: scu.270266

Gotha City v Sotheby’s and Another; Federal Republic of Germany v Same: QBD 9 Sep 1998

Limitation does not run in favour of a thief. A painting stolen during the war and dealt with by those knowing its true origin remained in the ownership of the original owner however long it had been held by someone who was not a purchaser in good faith. Moses J said: ‘In resolving the disputes as to foreign law, I must be guided by the following principles:
(1) when faced with conflicting evidence about foreign law, I must resolve differences in the same way as in the case of other conflicting evidence as to facts (Bumper Development Corporation Ltd v Commissioner of Police for the Metropolis [1991] 1 WLR 1362 at 1368G);
(2) where the evidence conflicts I am bound to look at the effect of the foreign sources on which the experts rely as part of their evidence in order to evaluate and interpret that evidence and decide between the conflicting testimony (Bumper Corporation at 1369H ;
(3) I should not consider passages contained within foreign sources of law produced by the experts to which those experts have not themselves referred (Bumper Corporation at 1369D to G);
(4) it is not permissible to reject uncontradicted expert evidence unless it is patently absurd (Bumper Corporation at 1371B);
(5) In considering foreign sources of law I should adopt those foreign rules of construction of which the experts have given evidence (this principle underlies the principle that an English court must not conduct its own researches into foreign law);
(6) whilst an expert witness may give evidence as to his interpretation as to the meaning of a statute, it is not for the expert to interpret the meaning of a foreign document. His evidence will be limited to giving evidence as to the proper approach, according to the relevant foreign rules of construction to that document’.’

Judges:

Moses J

Citations:

Times 09-Oct-1998

Statutes:

Limitation Act 1980 4

Jurisdiction:

England and Wales

Citing:

See also – City of Gotha v Sotheby’s and Another CA 19-Jun-1997
An abandonment of privilege within discovery proceedings did not imply general waiver of same privilege; limited to instant proceedings. . .

Cited by:

See also – City of Gotha v Sotheby’s and Another CA 19-Jun-1997
An abandonment of privilege within discovery proceedings did not imply general waiver of same privilege; limited to instant proceedings. . .
Cited – Rachmaninoff and Others v Sotheby’s and Another QBD 1-Mar-2005
The defendant had offered for sale by auction recently discovered works of Rachmaninoff. The claimants, descendants of the composer asserted ownership through his estate. The defendants refused to identify the seller.
Held: The claim should . .
Cited – Iran v The Barakat Galleries Ltd QBD 29-Mar-2007
The claimant government sought the return to it of historical artefacts in the possession of the defendants. The defendant said the claimant could not establish title and that if it could the title under which the claim was made was punitive and not . .
Lists of cited by and citing cases may be incomplete.

Limitation, Torts – Other

Updated: 15 May 2022; Ref: scu.80941

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: Qualifying user having been found, there was nothing in the material before the council to support the conclusion that such user had been otherwise than as of right within the meaning of section 22 of the 1965 Act. ‘The fact that the . . Council were willing for the land to be used as an area for informal sports and games, and provided some minimal facilities (now decaying) in the form of benches and a single hard cricket pitch, cannot be regarded as overt acts communicating permission to enter. Nor could the regular cutting of the grass, which was a natural action for any responsible landowner. To treat these acts as amounting to an implied licence, permission or consent would involve a fiction’ User can be as of right even though it is not adverse to the landowner’s interests.

Judges:

Lord Bingham of Cornhill Lord Hutton Lord Scott of Foscote Lord Rodger of Earlsferry Lord Walker of Gestingthorpe

Citations:

[2003] UKHL 60, Times 14-Nov-2003, [2003] 3 WLR 1306, [2004] 1 AC 889, [2004] 1 All ER 160, [2004] 2 P and CR 23, [2004] JPL 1106, [2003] NPC 139, [2003] 47 EGCS 155, [2004] 1 EGLR 94

Links:

House of Lords, Bailii

Statutes:

Commons Registration Act 1965 22, Open Spaces Act 1906

Jurisdiction:

England and Wales

Citing:

Appeal from – 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 . .
Cited – Mills and Another v Silver and others CA 6-Jul-1990
A farm’s only vehicular access was over land which was only useable occasionally when dry. The defendants laid a stone track to facilitate constant access. At first instance it was held that the earlier use had been too intermittent to allow a . .
Cited – Regina v Suffolk County Council Ex Parte Steed and Another CA 2-Aug-1996
Customary rights over land were not defeated by failure to register as common. ‘As of right’ meant that the right must be exercised in the belief that it is a right enjoyed by the inhabitants of the village to the exclusion of all other people. ‘it . .
Cited – Cumbernauld and Kilsyth District Council v Dollar Land (Cumbernauld) Ltd SCS 1992
(Inner House) When Cumbernauld town centre was built, a walkway was provided between the shopping centre and residential areas. It was used for many years, but then closed to prevent crime. The authority sought an interdict to keep it open as a . .
Cited – Cumbernauld and Kilsyth District Council v Dollar Land (Cumbernauld) Ltd HL 22-Jul-1993
A walkway had existed from the town centre to residential areas. When the land was acquired the defendant new owners sought to close the walkway. The authority asserted that a public right of way had been acquired.
Held: There was no need to . .
Cited – Attorney-General v Poole 1938
Open space land had been conveyed to Poole Corporation ‘in fee simple to the intent that the same may for ever hereafter be preserved and used as an open space or as a pleasure or recreation ground for the public use.’
Held: There was no . .
Cited – Bridges v Mees ChD 1957
An overriding interest, namely an estate contract, was protected under s. 70(1) of the Act even though it could have been protected by a caution under s. 59. . .
Cited – E R Ives Investments Ltd v High CA 14-Dec-1966
One exception to the requirement that an easement must be granted by a deed is that if permission to enjoy a right, capable of constituting an easement, is given by the landowner in terms likely to lead, and that do lead, the beneficiary of the . .
Cited – Gardner v Hodgson’s Kingston Brewery Co HL 1903
The party claiming a right of way through the yard of a neighbouring inn, and her predecessors in title, had for well over 40 years used the inn yard (the only means of access with carts and horses to her premises) and had paid the annual sum of 15 . .
Cited – Burrows v Lang 1901
Discussing the book de legibus et consuetudinibus Angliae by Bracton, and its discussion of the meaning of ‘precario’ saying it was the same as de gratia, of grace, and in the context of a watercourse. The court asked ‘What is precarious?’ and . .
Cited – Napier’s Trustees v Morrison 1851
Dealing with a public right of way, and holding that the defenders had possessed a road ‘by no trespass or tolerance, but as a public road’the court deprecated the citation in the Court of Session of authorities from England. He really wished, he . .
Cited – Sturges v Bridgman CA 1879
The character of the neighbourhood in which the plaintiff lives should, for the law of nuisance, include established features: ‘whether anything is a nuisance or not is a question to be determined, not merely by an abstract consideration of the . .
Cited – Mann v Brodie HL 1885
The court analysed the differences between Scottish and English land law with regard to rights acquired by prescription. Although in both countries a right of public way may be acquired by prescription, it was in England never practically necessary . .
Cited – Scottish Property Investment Company Building Society v Horne 1881
To warrant the remedy of summary ejection, the defender’s possession of premises has to be vicious, that is obtained by fraud or force, or precarious possession: ‘A precarious possession is a possession by tolerance merely.’ . .
Cited – Cumbernauld and Kilsyth District Council v Dollar Land (Cumbernauld) Ltd HL 22-Jul-1993
A walkway had existed from the town centre to residential areas. When the land was acquired the defendant new owners sought to close the walkway. The authority asserted that a public right of way had been acquired.
Held: There was no need to . .
Cited – Dalton v Henry Angus and Co HL 14-Jun-1881
The court explained the doctrine of lost modern grant. Where there has been more than 20 years’ uninterrupted enjoyment of an easement, and that enjoyment has the necessary qualities to fulfil the requirements of prescription, then unless, for some . .
Cited – Beckett (Alfred F) v Lyons 1967
A claim was made that the inhabitants of the County Palatine of Durham had the right to take coal from the seashore.
Held: Dedication of a public right must be to the public at large or a sufficiently large section of the public at large and . .
Cited – British Railways Board v Herrington HL 16-Feb-1972
Land-owner’s Possible Duty to Trespassers
The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
Held: Whilst a land-owner owes no general duty of care to a . .
Cited – Hall v Beckenham Corporation 1949
A claim was made in nuisance against the local authority, the owner of a public park, in which members of the public flew noisy model aircraft.
Held: The local authority were not liable as the occupiers of the park for an alleged nuisance that . .
At First Instance – 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 – British Transport Commission v Westmorland County Council HL 1958
The question whether the statutory purposes for which the land is held are incompatible with its use by the public as a public highway is one of fact and to be determined on the basis of the facts as they are and can reasonably be foreseen to be. . .

Cited by:

Cited – Oxfordshire County Council v Oxford City Council, Catherine Mary Robinson ChD 22-Jan-2004
Land had been registered in part as a common. The council appealed.
Held: The rights pre-existing the Act had not been lost. The presumption against retrospectively disapplying vested rights applied, and the application had properly been made. . .
Cited – 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 . .
Cited – Oxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
Cited – Lewis, Regina (on The Application of) v Redcar and Cleveland Borough Council and Another SC 3-Mar-2010
The claimants sought to have land belonging to the council registered as a village green to prevent it being developed. They said that it had for more than twenty years been used by the community for various sports. The council replied that it had . .
Cited – London Tara Hotel Ltd v Kensington Close Hotel Ltd ChD 1-Nov-2010
The defendant asserted that it had acquired the right to use a private access road over the claimant’s land. There had been a licence granted under which an earlier owner had been said to have used the land. The defendant claimed under the 1832 Act . .
Cited – Paddico (267) Ltd v Kirklees Metropolitan Council and Others ChD 23-Jun-2011
The company sought the rectification of the register of village greens to remove an entry relating to its land, saying that the Council had not properly considered the need properly to identify the locality which was said to have enjoyed the rights . .
Cited – Barkas v North Yorkshire County Council CA 23-Oct-2012
The court was asked: ‘When local inhabitants indulge in lawful sports and pastimes on a recreation ground which has been provided for that purpose by a local authority in the exercise of its statutory powers, do they do so ‘by right’ or ‘as of . .
Cited – Adamson and Others v Paddico (267) Ltd SC 5-Feb-2014
Land had been registered as a town or village green but wrongly so. The claimant had sought rectification, but the respondents argued that the long time elapsed after registration should defeat the request.
Held: The appeal were solely as to . .
Not to be relied on – Barkas, Regina (on The Application of) v North Yorkshire County Council and Scarborough Council Admn 20-Dec-2011
The claimants sought to have registered as a town or village green land in Whitby which had been provided as a playing field by the Local Authority since 1934. The inspector had found that the use had not been ‘as of right’ as required by the 2006 . .
Overruled – Barkas, Regina (on The Application of ) v North Yorkshire County Council and Another SC 6-Mar-2014
The Court was asked as to the registration of a playing field as a ‘town or village green’. Local residents asserted that their use of the land, having been ‘as of right’ required the registration. They now appealed against rejection of that . .
Cited – Newhaven Port and Properties Ltd, Regina (on The Application of) v East Sussex County Council and Another SC 25-Feb-2015
The court was asked: ‘whether East Sussex County Council . . was wrong in law to decide to register an area . . known as West Beach at Newhaven . . as a village green pursuant to the provisions of the Commons Act 2006. The points of principle raised . .
Cited – Adamson, Regina (on The Application of) v Kirklees Metropolitan Borough Council CA 18-Feb-2020
Appropriation was not in sufficient form
The claimants had challenged an order supporting the decision of the Council to use their allotments for a new primary school, saying that the land had be appropriated as allotment land, and that therefore the consent of the minister was needed.
Cited – Bowen and Others v Isle of Wight Council ChD 3-Dec-2021
What makes a road a Road?
The Court was asked whether a Road was a ‘road’ for the purposes of the 1984 Act’
Held: It has often been said that the public access mentioned in the definition of ‘road’ must be both actual access and legal or lawful access. However, simple . .
Cited – Lancashire County Council, Regina (on The Application of) v SSEFRA and Another SC 11-Dec-2019
Two appeals as to the circumstances in which the concept of ‘statutory incompatibility’ will defeat an application to register land as a town or village green where the land is held by a public authority for statutory purposes. In the first case, . .
Cited – Lancashire County Council, Regina (on The Application of) v SSEFRA and Another SC 11-Dec-2019
Two appeals as to the circumstances in which the concept of ‘statutory incompatibility’ will defeat an application to register land as a town or village green where the land is held by a public authority for statutory purposes. In the first case, . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Leading Case

Updated: 15 May 2022; Ref: scu.187760

Amerada Hess and Others v C W Rome and Others: QBD 9 Mar 2000

The claimants had served proceedings on an agent who did not have authority to accept such service. They sought, out of time, leave to re-serve correctly, and also to add an additional cause of action which whilst now outside the limitation period arose out of the same facts.
Held: The first application was refused. The court could only so act if preconditions were met, particularly here that the claimant had acted promptly. He had not so acted, and the court had no discretion to allow the re-service. The application to amend was granted.

Citations:

Gazette 09-Mar-2000, Times 15-Mar-2000

Litigation Practice, Limitation

Updated: 15 May 2022; Ref: scu.77778

Abbey National Plc v Sayer and Others: ChD 30 Aug 1999

Where a lender became aware that frauds might have been committed, but chose not to investigate past frauds, the limitation period could not later be extended to take up allegations of past misbehaviour. When the lender became aware of such cases, but instituted no system to investigate them until several years later, it had had constructive knowledge of them for limitation purposes.

Citations:

Times 30-Aug-1999

Limitation

Updated: 15 May 2022; Ref: scu.77603

Keech v Hall: 1778

The tenant resisted ejectment by the landlord’s mortgagee. His tenancy had been created after the mortgage.
Held: The mortgagee seeking ejectment did not first need to give a tenant a notice to quit. Mansfield CJ said: ‘Whoever wants to be secure when he takes a lease should inquire after and examine the title deeds.’ For time to run against a mortgagee and bar his right to recovery of the mortgaged land, the mortgagor must be in adverse possession of the land being in possession without any right and without the consent, express or implied, of his mortgagee.

Judges:

Mansfield CJ

Citations:

(1778) 1 Doug KB 21, [1775-1802] All ER Rep 116, [11778] 99 ER 17

Cited by:

Cited – National Westminster Bank Plc v Ashe (Trustee In Bankruptcy of Djabar Babai) CA 8-Feb-2008
The mortgagees had made no payments under the charge for more than twelve years, and had remained in possession throughout. They argued that the bank were prevented from now seeking to enforce the charge. The bank argued that the possession had not . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation, Landlord and Tenant

Updated: 15 May 2022; Ref: scu.264291

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 using the rights asserted beyond that the use is as of right. ‘As of right’ does not require that the inhabitants should believe themselves to have a legal right. For prescription purposes under the Prescription Act 1832, the Rights of Way Act 1932 and the 1965 Act ‘as of right’ means nec vi, nec clam, nec precario, that is, ‘not by force, nor stealth, nor the licence of the owner’ The purpose of the 1965 Act was ‘to preserve and improve common land and town and village greens. ‘ ‘Any legal system must have rules of prescription which prevent the disturbance of long-established de facto enjoyment.’
Lord Hoffmann said: ‘Any legal system must have rules of prescription which prevent the disturbance of long-established de facto enjoyment.’
By way of explanation of the need for the long user to be without force, secrecy or permission and therefore ‘as of right’, Lord Hoffmann said: ‘The unifying element in these three vitiating circumstances was that each constituted a reason why it would not be reasonable to expect the owner to resist the exercise of the right – in the first case, because rights should not be acquired by the use of force, in the second, because the owner would not have known of the user and in the third, because he had consented to the user, but for a limited period.’

Judges:

Lord Browne-Wilkinson, Lord Steyn, Lord Hoffmann, Lord Hobhouse of Wood-borough, Lord Millett

Citations:

Times 25-Jun-1999, Gazette 21-Jul-1999, [1999] UKHL 28, [2000] 1 AC 335, [1999] 3 ALL ER 385, [1999] 3 WLR 160, [1999] NPC 74, (2000) 79 P and CR 199, [1999] 2 EGLR 94, [1999] 31 EG 85, [1999] BLGR 651, [2000] JPL 384, [1999] EG 91

Links:

House of Lords, Bailii

Statutes:

Commons Registration Act 1965 13(b), Rights of Way Act 1932

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina v Oxfordshire County Council ex parte Sunningwell Parish Council CA 24-Nov-1997
The Parish Council appealed against refusal of leave to seek judicial review of a decision to reject an application for certain land to be registered as a common. . .
At first instance – Regina v Oxfordshire County Council ex parte Sunningwell Parish Council Admn 11-Jul-1996
The Parish Council sought judicial review of the county council’s decision to reject a regristation of land as a Common on the ground that the user of the land by the villagers had not been shown to be ‘as of right.’
Held: Leave to bring the . .
Wrong – Jones v Bates CA 1938
The court considered whether there had been an act by the landowner sufficient to amount to a dedication a path as a public right of way. Scott LJ said that actual dedication was ‘often a pure legal fiction [which] put on the affirmant of the public . .

Cited by:

Cited – 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.
Cited – Oxfordshire County Council v Oxford City Council, Catherine Mary Robinson ChD 22-Jan-2004
Land had been registered in part as a common. The council appealed.
Held: The rights pre-existing the Act had not been lost. The presumption against retrospectively disapplying vested rights applied, and the application had properly been made. . .
Cited – 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 . .
Cited – Whitmey, Regina (on the Application of) v the Commons Commissioners CA 21-Jul-2004
The applicant sought to leave to appeal against refusal of his challenge to the registration of land as a green.
Held: The 1965 Act did not limit the registration of greens to those which were registered by 3 January 1970. The Commons . .
Cited – Godmanchester Town Council, Regina (on the Application Of) v Secretary of State for the Environment Food and Rural Affairs CA 19-Dec-2005
The court considered whether a pathway had become a public highway.
Held: ‘The main question for the Court is whether sufficiency of evidence of an intention not to dedicate necessary to satisfy the proviso requires, as a matter of law, that . .
Cited – Oxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
Cited – Godmanchester Town Council, Regina (on the Application of) v Secretary of State for the Environment, Food and Rural Affairs HL 20-Jun-2007
The house was asked about whether continuous use of an apparent right of way by the public would create a public right of way after 20 years, and also whether a non overt act by a landowner was sufficient to prove his intention not to dedicate the . .
Cited – Odey and Others v Barber ChD 29-Nov-2006
The claimants sought a declaration that they had two rights of way over a neighbour’s land. One was claimed by continuous use for twenty years, and the second was said to have been implied under the 1925 Act. No express grant was suggested. . .
Cited – Lewis, Regina (on The Application of) v Redcar and Cleveland Borough Council and Another SC 3-Mar-2010
The claimants sought to have land belonging to the council registered as a village green to prevent it being developed. They said that it had for more than twenty years been used by the community for various sports. The council replied that it had . .
Cited – London Tara Hotel Ltd v Kensington Close Hotel Ltd ChD 1-Nov-2010
The defendant asserted that it had acquired the right to use a private access road over the claimant’s land. There had been a licence granted under which an earlier owner had been said to have used the land. The defendant claimed under the 1832 Act . .
Cited – Paddico (267) Ltd v Kirklees Metropolitan Council and Others ChD 23-Jun-2011
The company sought the rectification of the register of village greens to remove an entry relating to its land, saying that the Council had not properly considered the need properly to identify the locality which was said to have enjoyed the rights . .
Cited – Adamson and Others v Paddico (267) Ltd SC 5-Feb-2014
Land had been registered as a town or village green but wrongly so. The claimant had sought rectification, but the respondents argued that the long time elapsed after registration should defeat the request.
Held: The appeal were solely as to . .
Cited – Barkas v North Yorkshire County Council CA 23-Oct-2012
The court was asked: ‘When local inhabitants indulge in lawful sports and pastimes on a recreation ground which has been provided for that purpose by a local authority in the exercise of its statutory powers, do they do so ‘by right’ or ‘as of . .
Cited – Barkas, Regina (on The Application of ) v North Yorkshire County Council and Another SC 6-Mar-2014
The Court was asked as to the registration of a playing field as a ‘town or village green’. Local residents asserted that their use of the land, having been ‘as of right’ required the registration. They now appealed against rejection of that . .
Cited – Newhaven Port and Properties Ltd, Regina (on The Application of) v East Sussex County Council and Another SC 25-Feb-2015
The court was asked: ‘whether East Sussex County Council . . was wrong in law to decide to register an area . . known as West Beach at Newhaven . . as a village green pursuant to the provisions of the Commons Act 2006. The points of principle raised . .
Cited – Winterburn and Another v Bennett and Another CA 25-May-2016
The court was asked as to the steps which an owner of land must take to prevent others, who were using the land without permission, acquiring rights over the land. The claimants here had ignored clear signs placed on the land which asserted the . .
Cited – Lynn Shellfish Ltd and Others v Loose and Another SC 13-Apr-2016
The court was asked as to the extent of an exclusive prescriptive right (ie an exclusive right obtained through a long period of use) to take cockles and mussels from a stretch of the foreshore on the east side of the Wash, on the west coast of . .
Cited – Lancashire County Council, Regina (on The Application of) v SSEFRA and Another SC 11-Dec-2019
Two appeals as to the circumstances in which the concept of ‘statutory incompatibility’ will defeat an application to register land as a town or village green where the land is held by a public authority for statutory purposes. In the first case, . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Leading Case

Updated: 15 May 2022; Ref: scu.87505

Rosenberg v Cook: 1881

A squatter’s title is a freehold from day one of his possession.

Judges:

Sir George Jessel MR

Citations:

(1881) 8 QBD 162

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: 14 May 2022; Ref: scu.252431

West Riding of Yorkshire County Council v Huddersfield Corporation: 1957

Where a statute enables the court to give relief in monetary or non-monetary form the court should look to see what is actually claimed.

Citations:

[1957] 1 QB 540

Cited by:

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

Limitation

Updated: 14 May 2022; Ref: scu.244178

Surrendra Overseas Ltd v Government of Sri Lanka: 1977

A debtor can only be held to have acknowledged the claim if he has in effect admitted his legal liability to pay that which the plaintiff seeks to recover. An acknowledgement of part only of a debt cannot operate to acknowledge more.
Kerr J said: ‘What I draw from these authorities, and from the ordinary meaning of ‘acknowledges the claim,’ is that the debtor must acknowledge his indebtedness and legal liability to pay the claim in question. There is now no need to go further to seek for any implied promise to pay it. That artificiality has been swept away. But, taking the debtor’s statement as a whole, as it must be, he can only be held to have acknowledged the claim if he has in effect admitted his legal liability to pay that which the plaintiff seeks to recover. If he has denied liability, whether on the ground of what in pleader’s language is called ‘avoidance’, or on the ground of an alleged set off or cross-claim, then his statement does not amount to an acknowledgment of the creditor’s claim. Alternatively, if he contends that some existing set off or cross-claim reduces the creditor’s claim in part, then the statement, taken as a whole, can only amount to an acknowledgment of indebtedness for the balance. In effect, ‘acknowledges the claim’ means that the statement in question must be an admission of that indebtedness which the plaintiff seeks to recover notwithstanding the expiry of the period of limitation.’

Judges:

Kerr J

Citations:

[1977] 1 WLR 565

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 . .
Cited – Ofulue and Another v Bossert CA 29-Jan-2008
The claimants appealed an order finding that the defendant had acquired their land by adverse possession. They said that the defendant had asserted in defence to possession proceedings that they were tenants, and that this contradicted an intent to . .
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.

Limitation, Contract

Updated: 14 May 2022; Ref: scu.243128

Phillips v Rogers: 1945

The creditor argued that the limitation period was extended anew when the debtor wrote: ‘Re your correspondence re Mr C H Phillips claim $1300 which he is prepared to settle November 1st for $700. Please thank Mr Phillips for the kind offer. I have no idea where I am going to get $700 and meet your demands by November 1st unless I rob a bank and I really don’t think a case of this kind warrants such drastic action on my part. If Mr Phillips or yourself have any ideas how I can get that amount of money, honestly I shall be pleased to consider them.’

Citations:

[1945] 2 WWR 53

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.

Commonwealth, Limitation, Contract

Updated: 14 May 2022; Ref: scu.243122

Davies v Reed Stock and Co Ltd: 1984

Citations:

Unreported 1984

Cited by:

Followed – Busby v Cooper; Busby v Abbey National plc; Busby v Lumby CA 2-Apr-1996
The claimant sought damages after having bought a house after receiving an allegedly negligent report on the concrete. She had asked to be allowed to add a third party (the local authority who had passed the building) as a defendant, but the request . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Limitation

Updated: 14 May 2022; Ref: scu.241759

Hendy v Milton Keynes Health Authority: 1992

A potential plaintiff may have sufficient knowledge of the damage suffered to set the limitation period running, if she appreciates ‘in general terms’ that her problem was capable of being attributed to the operation, even where particular facts of what specifically went wrong or how or where precise error was made is not known to her.

Judges:

Blofeld J

Citations:

[1992] 3 Med LR 114

Jurisdiction:

England and Wales

Cited by:

Cited – Haward and others v Fawcetts HL 1-Mar-2006
The claimant sought damages from his accountants, claiming negligence. The accountants pleaded limitation. They had advised him in connection with an investment in a company which investment went wrong.
Held: It was argued that the limitation . .
Lists of cited by and citing cases may be incomplete.

Limitation, Negligence

Updated: 14 May 2022; Ref: scu.238775

Jameson and Wyatt (Executors of the Estate of David Allen Jameson) v Central Electricity Generating Board and Babcock Energy Limited: 10 Mar 1995

The plaintiff claimed damages for mesothelioma. CEGB had provided a contractual indemnity in respect of damage or injury occurring before building works were taken over by a client in 1960. The question was whether a workman who died from mesothelioma well after 1960 but was exposed during the building work before 1960 had suffered damage or injury before 1960.
Held: The evidence did not establish even that minimal microscopic changes had occurred before 1960 and that the damage or injury occurred many years after the deceased had finished working.

Judges:

Tudor Evans J

Citations:

Unreported, 10 March 1995

Cited by:

Appeal from – Jameson and Wyatt (Executors of the Estate of David Allen Jameson) v Central Electricity Generating Board and Babcock Energy Limited CA 13-Feb-1997
Executors may sue for a dependency claim despite a full and final settlement having been made by the deceased. . .
Cited – Bolton Metropolitan Borough Council v Municipal Mutual Insurance Ltd CA 6-Feb-2006
The deceased had come into contact with asbestos when working on building sites for more than one contractor. The claimant here sought contribution from the defendants for the damages it had paid to his estate. The issue was as to liability on . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Limitation

Updated: 14 May 2022; Ref: scu.238333

Habermehl v Attorney General: 1996

Land was granted for use as a school for the education of poor persons in accordance with the principles of the National Society. In 1876 the school had become a ‘provided school’ run by a School Board under the Education Act 1870. That meant that, by virtue of section 14(2) of the Act, no ‘religious catechism or religious formulary distinctive of any particular denomination’ could be taught in the school. Teaching could therefore no longer be in accordance with the Anglican principles of the National Society. Counsel agreed that Warrington J had decided that the purposes mentioned in the Act meant the purposes mentioned in the deed.
Held: A reverter had taken place in 1876.

Judges:

Rimer J

Citations:

[1996] EGCS 148

Citing:

Applied – Attorney General v Shadwell 1910
Land in Northholt was granted under the 1841 Act for use as a school. In 1907 the school was closed, another school having been opened by the local authority nearby. Thereafter the building was used only once a week for a Sunday school. The Board of . .

Cited by:

Cited – Fraser and Another v Canterbury Diocesan Board of Finance and others HL 27-Oct-2005
Land had been acquired by a deed under the 1841 Act, but had in 1995 ceased to be used as a school ‘for the education of children and adults of the labouring manufacturing and other poorer classes . . And for no other purpose ‘. Under the Act, the . .
Approved – Fraser and Another v Canterbury Diocesan Board Of Finance (No 1) CA 24-Nov-2000
A grant of land was made under the 1841 Act in 1872 (after the 1870 Act) and the school had in 1874 been transferred to a school board under section 23 of the 1870 Act. The school closed permanently in 1992. The issue was whether reverter had . .
Lists of cited by and citing cases may be incomplete.

Land, limitation

Updated: 13 May 2022; Ref: scu.231637

Watson v Fram Reinforced Concrete Co (Scotland) Ltd: HL 1960

A workman had been injured through the breaking of a defective part in the machine with which he was working. He brought an action of damages against his employers, and later convened as second defenders the manufacturers of the machine, who had supplied it to his employers, on averments that the accident had been caused by the fault of the manufacturers in that they failed to supply his employers with a machine which was safe for use by their servants. The machine had been supplied on 7 July 1955 and the accident had happened on 9 August 1956, but the manufacturers were not convened in the action until 25 March 1959.
Held: The three-year limitation period provided by section 6(1)(a) of the Law Reform (Limitation of Actions andc.) Act 1954 ran from the date when the workman suffered the injury and that, accordingly, the action against the manufacturers was not time-barred. ‘a cause of action accrues as soon as a wrongful act has caused personal injury beyond what can be regarded as negligible.’
Lord Reid said: ‘The ground of any action based on negligence is a concurrence of duty and damage and I cannot see how there can be that concurrence unless the duty still exists and is breached when the damage occurs.’ and ‘It appears to me that default in the sense of breach of duty must persist after the act or neglect until the damage is suffered. The ground of any action based on negligence is the concurrence of breach of duty and damage, and I cannot see how there can be that concurrence unless the duty still exists and is breached when the damage occurs. Suppose that the damage occurred a year or two years after the manufacture and sale of the article: then undoubtedly the injured person can sue. But how could he sue if the manufacturer could say that his default had ceased a year before the injured person ever came near the dangerous article? Whatever be the true view with regard to the act or neglect, I think that the appellant is entitled to say that the respondents’ ‘default giving rise to the action’ existed at the time when he suffered his injuries.’
Lord Keith of Avonholm said: ‘Now this is a Donoghue v Stevenson type of case, and such a case undoubtedly introduces specialities into the law of negligence. But, on any view, I see difficulty in saying that there was negligence at the date of supply. At that date on the pursuer’s pleadings there was no reason why the manufacturers should have known of the dangerous state of the strut. It can hardly be expected that they had a legal duty to take it to pieces and inspect it before sending it out. Undoubtedly there was an act of carelessness on the part of some workman when the pin was welded to the strut and the manufacturers would be vicariously responsible for that carelessness. But can it be said that at either date there was an act of negligence in the legal sense? The manufacturers owed a duty to anyone who should handle the machine to take reasonable steps to see that it was safe. They owed a duty not to injure, but until someone was injured there was no breach of duty. Only then could it be said that an act of negligence had been committed. That, I think, necessarily follows from the judgment of this House in Donoghue v Stevenson.’ and ‘Applying the ratio of these decisions there was, in my opinion, no act, neglect or default within the meaning of the statute affecting the pursuer until he was injured. A fortiori there was no act, neglect or default giving rise to his action before that date. It was then for the first time that there arose a breach of duty which made its impact on the pursuer. Time, in my opinion, commenced to run against the pursuer under the statute from that date.’
Lord Denning said: ‘I think the true principle is contained simply in this: ‘You must not injure your neighbour by your fault.’ It is the doing of damage to him which, in my opinion, is the breach of duty giving rise to the action. It is no doubt correct to say, as Lord MacMillan did say (at p.71), that the manufacturer ‘is under a duty to take care in the manufacture of these articles.’ That is a duty which he owes to all those who may have occasion to use the article: and it is a duty which is broken at the time when he is negligent in making the article. But it is not a breach of duty to any particular individual. And it is not that breach of duty which gives rise to the action. There is another duty also to be considered: and that is the duty which Lord Atkin put in this wise (at p.44): ‘You must not injure your neighbour’: which I would expand so as to say that there is a duty on every man not to injure his neighbour by his want of reasonable care. This is a duty which he owes, not to the world at large, but to his neighbour. It is broken only when his neighbour is injured and not before. Then, and then only, is there a breach of duty giving rise to an action.’ and . . ‘The words ‘act, neglect or default’ are perhaps a little tautologous: for ‘act’ in legal terminology often includes an omission as well as an act of commission: and ‘default’ certainly includes ‘neglect’. But tautologous as they may be, the words are apt to cover all breaches of legal duty, no matter whether it be by leaving undone those things which we ought to have done, or by doing those things which we ought not to have done.’

Judges:

Lord Reid, Lord Keith of Avonholm, Lord Denning

Citations:

1960 SC 92, 1960 SC (HL) 92

Statutes:

Law Reform (Limitation of Actions) Act 1954 6(1)(a)

Citing:

Cited – Grant v Australian Knitting Mills PC 21-Oct-1935
(Australia) The Board considered how a duty of care may be established: ‘All that is necessary as a step to establish a tort of actionable negligence is define the precise relationship from which the duty to take care is deduced. It is, however, . .
Cited – Donoghue (or M’Alister) v Stevenson HL 26-May-1932
Decomposed Snail in Ginger Beer Bottle – Liability
The appellant drank from a bottle of ginger beer manufactured by the defendant. She suffered injury when she found a half decomposed snail in the liquid. The glass was opaque and the snail could not be seen. The drink had been bought for her by a . .

Cited by:

Cited – Hamilton v Fife Health Board 1993
A child was born but with injuries incurred while in utero alleged to have been caused by the negligence of the doctors attending the mother. The parents sued the health board for loss of the child’s society. The Board argued the action to be . .
Cited – McTear v Imperial Tobacco Ltd OHCS 31-May-2005
The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
Held: The action failed. The plaintiff had not . .
Cited – Johnston v NEI International Combustion Ltd; Rothwell v Chemical and Insulating Co Ltd; similar HL 17-Oct-2007
The claimant sought damages for the development of neural plaques, having been exposed to asbestos while working for the defendant. The presence of such plaques were symptomless, and would not themselves cause other asbestos related disease, but . .
Cited – David T Morrison and Co Ltd (T/A Gael Home Interiors) v ICL Plastics Ltd and Others SC 30-Jul-2014
The claimant sought damages after an explosion at the defender’s nearby premises damaged its shop. The defender said that the claim was out of time, and now appealed against a decision that time had not begun to run under the 1973 Act.
Held: . .
Lists of cited by and citing cases may be incomplete.

Scotland, Negligence, Limitation

Updated: 13 May 2022; Ref: scu.226700

Carson v Howard Doris Limited: 1981

Whether it was equitable to allow an action to go ahead despite the expiry of the limitation period, depended upon three factors: ‘(1) the conduct of the pursuer since the accident and up to the time of his seeking the court’s authority to bring the action out of time, including any explanation for his not having brought the action timeously; (2) any likely prejudice to the pursuer if authority to bring the action out of time were not granted; and (3) any likely prejudice to the other party from granting authority to bring the action out of time’. Each case must depend upon its own facts. The court allowed the pursuer to convene the third party as a defender out of time as the pursuer had provided a reasonable explanation for his failure to direct the action against the third party timeously and he could have been prejudiced had he not been allowed to bring the action against the third party as he would have had no other remedy. There was minimal prejudice to the third party, who was already in the process and under the necessity of investigating the accident.
The power conferred by the section should be exercised sparingly and with restraint.

Judges:

Lord Ross

Citations:

1981 SC 278

Cited by:

Applied – Whyte v Walker 1983
The pursuer was injured in a road traffic accident on 8 July 1976 and raised an action on 19 June 1981 alleging that his original solicitors wrote to the defender on two occasions in 1977 claiming damages and that the defender had written on 5 . .
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 . .
Cited – Bowden v Poor Sisters of Nazareth and others and similar HL 21-May-2008
The appellants said they had suffered abuse while resident at children’s homes run by the respondents. The respondents denied the allegations and said that they were also out of time. The claims were brought many years after the events.
Held: . .
Lists of cited by and citing cases may be incomplete.

Scotland, Limitation

Updated: 13 May 2022; Ref: scu.200277