Category: Limitation

McCabe v McLellan: IHCS 1994

An action of professional negligence was brought against two doctors for alleged negligence when the pursuer was a young child. He was 18 in 1986 and raised an action against the first defender within the triennium provided for in section 17(4) of the 1973 Act. When the action was raised he understood that the second defender had died but when he discovered that the second defender was, in fact, still alive he brought him into the action one month after the expiry of the triennium.
Held: ‘The discretion which is to be exercised under section 19A(1) has been said to be unfettered, and it is necessary to balance all the circumstances of the case and also the interests of all parties concerned . . It is for the pursuer to satisfy us that it would be equitable to allow him to proceed with his action . .’

Judges:

Lord President Hope

Citations:

1994 SC 87

Cited by:

Cited – David Lannigan v Glasgow City Council OHCS 12-Aug-2004
The pursuer said the teachers employed by the defendant had failed to identify that was dyslexic, leading him to suffer damage. The defenders said the claim was time barred, which the pursuer admitted, but then said that the claim ought to go ahead . .
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.200280

Barnes v Glenton: 1899

A contract debt had been then secured on land. The defendant pleaded limitation.
Held: The section, in not enlarging the period of recovery of a simple contract debt from 6 years to 12 years, was prohibitory and was enacted to limit existing limitation periods relating to the recovery of debts charged on land. The addition of the charge did not extend the period for recovery of the debt itself.

Judges:

ALSmith LJ

Citations:

[1899] 1 QB 885

Statutes:

Limitation Act 1874 8

Cited by:

Cited – Wilkinson and Another v West Bromwich Building Society CA 30-Jul-2004
The Society had repossessed and sold the mortgagors’ house in 1990. It knew then that there was a shortfall, but took no further recovery proceedings until 2002. What was the date from which the relevant limitation period began to run? Though the . .
Cited – Hopkinson and Others and Birmingham Mid-Shires Building Society v Tupper CA 30-Jan-1997
The plaintiffs appealed from an order striking out their claim for want of prosecution. The defendant’s property had been sold by the mortgagees, and the plaintiffs as assignees of their debt sought to recover the balance outstanding from the . .
Lists of cited by and citing cases may be incomplete.

Limitation

Updated: 13 May 2022; Ref: scu.199716

Airdrie Magistrates v Lanark County Council: 1910

Lord Loreburn LC said: ‘But what the appellants say is this: Permit us to prove that these burns are sewers, and if we can prove that they are sewers, surely it cannot be an offence to pour sewage matter into the sewers. My Lords, that is merely asking leave to prove that they have . . committed in an aggravated degree the very offence with which they are charged.’

Judges:

Lord Loreburn LC

Citations:

[1910] AC 286

Statutes:

Rivers Pollution Prevention Act 1876 3

Jurisdiction:

Scotland

Cited by:

Applied – George Legge and Son Ltd v Wenlock Corporation HL 1938
The question was whether the status of a natural stream could be changed to that of a sewer by the unlawful discharge for a long period of sewage into the stream. The claimant asserted that a right by way of an easement could be acquired despite the . .
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 . .
Lists of cited by and citing cases may be incomplete.

Land, Environment, Limitation, Scotland

Updated: 13 May 2022; Ref: scu.195479

Bryant v Foot: 1867

It is to be presumed from a period of 20 years’ user, and the lack of evidence inconsistent with there having been immemorial user or a lost modern grant, that a right which was within grant has been established. The apparent right should lie in grant, it should be capable of being created by an express grant made by deed. Cockburn CJ said that the fiction of lost modern grant, animus dedicandi and the like are ‘a bad and mischievous law, and one which is discreditable to us as a civilized and enlightened people.’ and ‘time immemorial’ had came to mean from before 1189.

Judges:

Cockburn CJ

Citations:

(1867) LR 2 QB 161

Jurisdiction:

England and Wales

Cited by:

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

Land, Limitation

Updated: 13 May 2022; Ref: scu.195477

In Re Williams: 1886

The purpose of the section is to allow time to run against an administrator as from the intestate’s death, irrespective of whether a grant of administration has been obtained or not.

Citations:

(1886) 34 ChD 558

Statutes:

Real Property Limitation Acts of 1833 6

Jurisdiction:

England and Wales

Cited by:

Cited – Earnshaw and Others v Hartley CA 31-Mar-1999
An administrator de son tort, who was also a beneficiary, held the estate property on trust, and so could not establish adverse possession against the estate during the period of trusteeship. He held a sufficient interest in the assets already. A . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Limitation, Land

Updated: 13 May 2022; Ref: scu.190224

Agromet Motoimport Ltd v Maulden Engineering Co (Beds) Ltd: 1985

Time begins to run on the collection of an arbitration award, not from the date upon which the award is made or published, but from the date when the paying party is in breach of its implied obligation to pay the award.

Citations:

[1985] 2 All ER 436

Jurisdiction:

England and Wales

Cited by:

Cited – Good Challenger Navegante S A v Metalexportimport SA CA 24-Nov-2003
The claimant sought to enforce an arbitration award made in 1983. Time might otherwise have expired, but the claimants relied on a fax which they said was an acknowledgement of the debt, and also upon a finding in a Romanian court which created an . .
Cited – National Ability Sa v Tinna Oils and Chemicals Ltd CA 11-Dec-2009
Implied promise to pay arbitral award
The parties disputed how limitation affects the enforcement of an arbitration award. More than six years had passed since the award had been made, and the defendant said it was out of time.
Held: A party can enforce an award either by ordinary . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Limitation

Updated: 12 May 2022; Ref: scu.188225

Bentley v Bristol and Western Hospital Authority: 1991

Citations:

[1991] 2 Med LR 359

Cited by:

Cited – Roberts vWinbow (3) CA 4-Dec-1998
The plaintiff was treated for depression by the defendant by prescription of drugs. She sufferred a reaction, but now claimed that the doctor’s slow reaction caused her to suffer lasting injury. The question on appeal was, if a plaintiff suffers . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Limitation

Updated: 12 May 2022; Ref: scu.186439

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 solicitors.
Held: The discretion under the section arises notwithstanding a plaintiff’s solicitors’ perhaps far greater negligence in failing ever to have issued proceedings within the primary limitation period in the first place. This is an undoubted anomaly arising from the Walkley principle. The court’s discretion was unfettered. Disapplying the time limit will always prejudice a defendant, because he will lose his limitation defence.
Lord Diplock said: ‘The onus of showing that in the particular circumstances of the case it would be equitable to make an exception lies upon the plaintiff; but, subject to that, the Court’s discretion to make or refuse an order if it considers it equitable to do so is, in my view, unfettered. The conduct of the parties, as well as the prejudice one or other will suffer if the court does or does not make an order, are all to be put into the balance in order to see which way it falls.’ and
‘Walkley . . was a case in which the plaintiff had issued and served his writ within the primary limitation period; so section 11 had not affected him at all. No further steps were taken in the action within the primary limitation period and it was ripe to be dismissed for want of prosecution. In an attempt to avoid this fate a second writ founded on the same cause of action was issued by the plaintiff’s new solicitors. Considerable procedural manoeuvring by both parties followed, in the course of which application was made under section 33 to allow the action started by the second writ to proceed. This House took the view that, the plaintiff having brought within the primary limitation period an action for damages for the very negligence which constituted the cause of action alleged in the second writ, he had not been affected by section 2A [11] at all, let alone prejudiced by it.’
and ‘In Walkley . . the primary period of limitation had not expired when the plaintiff had started his action against the tortfeasor. That was the only reason why section [33] did not apply to his case’, (with emphasis added by me).’ and ‘It may seem anomalous that a defendant should be better off where, unknown to him, a writ has been issued but not served than he would be if the writ had not been issued at all ; but this is a consequence of the greater anomaly too well-established for this House to abolish that, for the purposes of a limitation period, an action is brought when a writ or other originating process is issued by the central office of the High Court and not when it is brought to the knowledge of the defendant by service upon him.’
Lord Oliver said: ‘My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Griffiths. I entirely agree with it and add a few words of my own only because a contrary view was taken by the majority of the Court of Appeal.
The argument in favour of the proposition that dilatoriness on the part of the plaintiff in issuing his writ is irrelevant until the period of limitation has expired rests upon the proposition that, since a defendant has no legal ground for complaint if the plaintiff issues his writ one day before the expiry of the period, it follows that he suffers no prejudice if the writ is not issued until two days later, save to the extent that, if the section is disapplied, he is deprived of his vested right to defeat the plaintiff’s claim on that point alone. In my opinion, this is a false point. A defendant is always likely to be prejudiced by the dilatoriness of a plaintiff in pursuing his claim. Witnesses’ memories may fade, records may be lost or destroyed, opportunities for inspection and report may be lost. The fact that the law permits a plaintiff within prescribed limits to disadvantage a defendant in this way does not mean that the defendant is not prejudiced. It merely means that he is not in a position to complain of whatever prejudice he suffers. Once a plaintiff allows the permitted time to elapse, the defendant is no longer subject to that disability, and in a situation in which the court is directed to consider all the circumstances of the case and to balance the prejudice to the parties, the fact that the claim has, as a result of the plaintiff’s failure to use the time allowed to him, become a thoroughly stale claim, cannot, in my judgment, be irrelevant. It is clear from the judge’s judgment that, because sub-paragraphs (a) and (b) of s.33(3) of the Act of 1980 focus particular attention on the time elapsing after the expiry of the limitation period, he felt constrained to regard the time which had been allowed to pass prior to that date as something which had to be left wholly out of account. In my judgment, he was wrong to do so and that necessarily vitiated the exercise of his discretion. I, too, would allow the appeal.’

Judges:

Lord Diplock, Lord Elwyn-Jones, Lord Fraser of Tullybelton, Lord Scarman and Lord Bridge of Harwich

Citations:

[1981] 1 WLR 744, [1981] 2 All ER 296

Statutes:

Limitation Act 1980 33, Limitation Act 1938 2D

Jurisdiction:

England and Wales

Citing:

Explained – Walkley v Precision Forgings Ltd HL 1979
The plaintiff tried to bring a second action in respect of an industrial injury claim outside the limitation period so as to overcome the likelihood that his first action, although timeous, would be dismissed for want of prosecution.
Held: He . .

Cited by:

Cited – Barry Young (Deceased) v Western Power Distribution (South West) Plc CA 18-Jul-2003
The deceased had begun an action on becoming ill after exposure to asbestos by the defendant. He withdrew his action after receiving expert evidence that his illness was unrelated. A post-mortem examination showed this evidence to be mistaken. His . .
Cited – 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 – Jacqueline Adam v Rasal Ali CA 21-Feb-2006
The defendant sought damages against the defendant for personal injury from his alleged negligence. Her action was struck out and she recommenced the action. The defendant pleaded that she was out of time. The claimant said that the first action . .
Cited – Horton v Sadler and Another HL 14-Jun-2006
The claimant had been injured in a road traffic accident for which the defendant was responsible in negligence. The defendant was not insured, and so a claim was to be made against the MIB. The plaintiff issued proceedings just before the expiry of . .
Cited – Buckler v J F Finnegan Ltd CA 21-Jun-2004
The claimant sought damages for personal injuries after ingesting asbestos while employed as a joiner by the defendant. The defendant appealed an order allowing the claim to go ahead despite being out of time. . .
Cited – 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 – Brady v Norman CA 9-Feb-2011
The claimant sought to have disapplied the limitation period in his defamation claim. The claimant said that in the case of Cain, the Steedman case had not been cited, and that the decisions were incompatible, and that Cain was to be prefered.
Cited – Cain v Francis CA 18-Dec-2008
The court was asked under what circumstances it should exercise its discretion to extend the limitation period under section 33.
Held: Lady Justice Smith said: ‘It appears to me that there is now a long line of authority to support the . .
Cited – Brady v Norman CA 9-Feb-2011
The claimant sought to have disapplied the limitation period in his defamation claim. The claimant said that in the case of Cain, the Steedman case had not been cited, and that the decisions were incompatible, and that Cain was to be prefered.
Cited – S v Suren and Another QBD 10-Sep-2004
. .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Limitation

Updated: 12 May 2022; Ref: scu.185753

Tehidy Minerals Ltd v Norman: CA 1971

The fact that land had been requisitioned by the Ministry of Agriculture between 1941 and 1960 and the 20-odd years’ user relied on as having created the rights had preceded 1941 was a bar to a prescriptive claim to grazing rights under the Prescription Act 1832 but not at common law. Discussing Angus v Dalton, applying the doctrine of lost modern grant: ‘where there has been upwards of 20 years’ uninterrupted enjoyment of an easement, such enjoyment having the necessary qualities to fulfil the requirements of prescription, then unless, for some reason . . the existence of such a grant is impossible, the law will adopt a legal fiction that such a grant was made, in spite of any direct evidence that no such grant was in fact made.’

Judges:

Buckley LJ

Citations:

[1971] 2 QB 528

Statutes:

Prescription Act 1832

Jurisdiction:

England and Wales

Citing:

Explained – 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 – Dalton v Henry Angus and Co 1877
Fry J said: ‘ . .I cannot imagine any case of acquiescence in which there is not shown to be in the servient owner: 1, a knowledge of the acts done; 2, a power in him to stop the acts or to sue in respect of them; and 3, an abstinence on his part . .
Cited – Dalton v Henry Angus and Co CA 1878
. .

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 – 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 – 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 . .
Cited – Lawrence and Another v Fen Tigers Ltd and Others QBD 4-Mar-2011
The claimants had complained that motor-cycle and other racing activities on neighbouring lands were a noise nuisance, but the court also considered that agents of the defendants had sought to intimidate the claimants into not pursuing their action. . .
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 . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 12 May 2022; Ref: scu.179838

Thurrock Borough Council v Secretary of State for Environment Transport and the Regions, and Another: QBD 3 Apr 2001

The land owner claimed continuous use for more than ten years, to establish a defence to enforcement proceedings. Such a defence was for the land owner to establish, and required him to show continuity during the period, allowing for exclusion of times when enforcement proceedings were not available. It was not appropriate to apply legal principles from the law relating to abandonment except when accrued rights were asserted.

Citations:

Times 03-Apr-2001

Jurisdiction:

England and Wales

Planning, Limitation

Updated: 11 May 2022; Ref: scu.89893

KM v HM: 29 Oct 1992

Supreme Court of Canada – Limitation of actions – Torts – Assault and battery – Incest – Woman bringing action against father for damages for incest – Whether or not action limited by Limitations Act – Application of the reasonable discoverability principle – Whether or not incest a separate and distinct tort – Limitations Act, R.S.O. 1980, c. 240, s. 45(1)(j), 47.
Limitation of actions – Equity – Fiduciary relationship – Parent/child – Woman bringing action against father for incest – Whether incest constitutes a breach of fiduciary duty by a parent – Whether limitation period applicable and whether the defence of laches applies.
Limitation of actions – Fraudulent concealment – Incest – Whether a limitation period in an incest action is postponed by defendant’s fraudulent concealment.

Judges:

La Forest, L’Heureux-Dube, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ

Citations:

(1992) 96 DLR (4th) 289, [1992] 3 SCR 6, 14 CCLT (2d) 1, AZ-92111111, EYB 1992-67549, JE 92-1644, [1992] SCJ No 85 (QL), 36 ACWS (3d) 466, 57 OAC 321

Links:

Canlii

Cited by:

Cited – AIB Group (UK) Plc v Mark Redler and Co Solicitors SC 5-Nov-2014
Bank not to recover more than its losses
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Limitation, Equity, Trusts

Updated: 11 May 2022; Ref: scu.554205

Glasper v Rodger: SCS 1996

First Division – Inner House – Lord President Hope said: ‘In our opinion the lack of awareness which requires to be established for the purposes of section 11(3) of the 1973 Act is a lack of awareness that a loss has occurred caused by an act, neglect or default which gives rise to an obligation to make reparation for it. We agree with Lord Clyde’s observation in Greater Glasgow Health Board v Baxter Clark and Paul 1992 SLT at page 40D that the subsection looks for an awareness not only of the fact of loss having occurred, but of the fact that it is a loss caused by negligence . . A party who is aware that he has sustained loss, injury and damage may reasonably be expected to take some steps to find out what has caused that loss. Failure to do this will call for an explanation, if the test of reasonable diligence to which section 11(3) refers is to be capable of being satisfied.’

Judges:

Lord President Hope

Citations:

1996 SLT 44

Statutes:

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

Cited by:

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

Negligence, Limitation

Updated: 11 May 2022; Ref: scu.552025

Kirk Care Housing Association Ltd v Crerar and Partners: SCS 1996

Outer House – Lord Clyde reiterated his view, rejecting a challenge by counsel for the defenders, that section 11(3) was concerned only with awareness of loss, a matter of fact, and not with matters of legal liability.

Judges:

Lord Clyde

Citations:

1996 SLT 150

Statutes:

Prescription and Limitation (Scotland) Act 1973

Cited by:

Cited – David T Morrison and Co Ltd (T/A Gael Home Interiors) v ICL Plastics Ltd and Others SC 30-Jul-2014
The claimant sought damages after an explosion at the defender’s nearby premises damaged its shop. The defender said that the claim was out of time, and now appealed against a decision that time had not begun to run under the 1973 Act.
Held: . .
Lists of cited by and citing cases may be incomplete.

Scotland, Limitation

Updated: 11 May 2022; Ref: scu.552029

Hilton v Sutton Steam Laundry: CA 1946

Citations:

[1946] KB 65

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

Updated: 11 May 2022; Ref: scu.415960

Thomas v Thomas: 1855

When a father has entered upon the estate of his infant children the presumption is that he entered as their guardian and bailiff, and therefore the Statute of Limitations does not begin to run against the children until they attain twenty-one, and from that time at least a child has twenty years within which he may recover possession. Semble, entry by a stranger might not have this effect.
If the father retain possession after the children attain twenty-one such possession will be considered to be continued in the character in which he entered, so that an account will be directed, not from the filing of the bill, but, if necessary, from the time of entry.
In an adverse suit, in the nature of an ejectment suit, against a person in no fiduciary relation to the plaintiff, this account is only directed from the time of filing the bill.
If a wife concurs with her husband in mortgaging property over which. she has a power, the husband is primarily liable, unless the wife received the money for her separate use; and the Court will direct an inquiry as to this fact.

Citations:

[1855] EngR 42, (1855) 2 K and J 79, (1855) 69 ER 701

Links:

Commonlii

Jurisdiction:

England and Wales

Children, Limitation

Updated: 11 May 2022; Ref: scu.291964

Moses v Lovegrove: CA 29 Apr 1952

The tenant had gone into possession under an oral agreement with a rent book. He ceased to pay rent or acknowledge the landlord’s right in 1938. In 1952 the landlord sought to recover possession, and now appealed a finding that the tenant had acquired the title to the property by adverse possession.
Held: A rent book did not constitute a tenancy agreement, or lease in writing. Evershed MR said: ‘The alleged lease in writing consisted of the rent book, which was put in evidence. The judge rejected the view that the rent book was such a lease in writing within the meaning of the Act, and I think he was entirely right in that conclusion.
The rent book is, I think, what it purports to be, and what it is called, a rent book, that is, a book containing acknowledgements for payment of weekly sums of rent, and containing also, in pursuance of the terms of the legislation, a reference to the conditions on which the tenant was holding his tenancy. I think that on the face of it, it was not intended to be, and is not, a contract for granting a tenancy, still less a lease creating an estate.’ and ‘The notion of adverse possession, which is enshrined now in section 10, is not new; the section is a statutory enactment of the law in regard to the matter as it had been laid down by the courts in interpreting the earlier Limitation Statutes.’
Romer LJ said: ‘The tenancy was quite obviously an oral weekly tenancy, with the result that time started to run by virtue of section 9 of the Limitation Act, 1939, from one week after the last payment of rent, which was on May 28, 1938.’ and
‘As no notice to quit was given, the tenant could not thereafter be said to be in immediate adverse possession in the ordinary sense, for he remained on under his contractual tenancy. Nevertheless, for the purposes of the Limitation Act, 1939, his tenancy ceased to exist, and therefore he is deemed to have remained on in adverse possession. Accordingly, the fact that for some purposes his contractual right remained in the absence of a notice to quit a writ for possession is irrelevant, as also is the precise date on which the lessor could properly have started proceedings in ejectment. The point is that after the expiration of one week from the date of the last payment of rent, the defendant is deemed to have had no contractual right to possession, and therefore to have been a trespasser or a squatter.
Why should he be regarded as being in possession by virtue of permission or grant of the owner merely because of the passing of the Rent Act of 1939?’ and
‘It seems to me that one can, in addition to looking at position and rights of the owner, legitimately look also at the position of the occupier for the purpose of seeing whether his occupation is adverse. In my opinion, if one looks to the position of the occupier and finds that his occupation, his right to occupation, is derived from the owner in the form of permission or agreement or grant, it is not adverse, but if it is not so derived, then it is adverse, even if the owner is, by legislation, prevented from bringing ejectment proceedings.’

Judges:

Sir Raymond Evershed MR, Birkett and Romer LJJ

Citations:

[1952] 2 QB 533, [1952] 1 The Times LR 1324

Statutes:

Limitation Act 1939 9(2) 10

Jurisdiction:

England and Wales

Citing:

Cited – Warren v Murray 1894
A person went into possession of land under a contract to grant him a lease for 99 years, but no lease was ever granted.
Held: In the absence of a lease he was no more that a tenant at will, which tenancy could be determined at any time, but . .
Cited – In re Joll Gathercole v Norfolk 1900
Collins LJ said: ‘At the end of the 12 years the possession of a tenant who has paid no rent becomes adverse during the whole time the adverse possession is validated by the statute, and it is not competent for the landlord to say that he still . .

Cited by:

Cited – Long v Tower Hamlets London Borough Council ChD 29-Mar-1996
The landlord’s agents wrote to the proposed tenant offering a quarterly tenancy of the premises. The tenancy was to commence at a future date. The defendant endorsed the letter and returned it to say he would abide by the terms, and he was allowed . .
Cited – Goomti Ramnarace v Harrypersad Lutchman PC 21-May-2001
(Trinidad and Tobago) The defendant had gone into possession of land by consent, and many years later declined to leave. The claimant said the period of her adverse possession was insufficient but she claimed a tenancy. The claimant asserted that . .
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 . .
Cited – Hayward v Chaloner CA 1968
The alleged tenant (the rector of a parish) knew that rent should have been paid but had not paid it. ‘Only one of the previous rectors gave evidence. He was the Rev. Richard Phillips (dates) He knew the rectory cottages and said that the land . .
Cited – Lodge (T/A JD Lodge) v Wakefield Metropolitan Council CA 21-Mar-1995
The plaintiff had formerly been a tenant of the defendant under an informal tenancy. No rent had been paid since 1974. He claimed to have acquired the land by adverse possession. He gave evidence at trial that if he had been asked to pay rent at any . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Limitation

Updated: 11 May 2022; Ref: scu.223190

Norman v Ali and Another, Norman v Aziz: CA 13 Jan 2000

The claimant sought damages following a road accident against an uninsured driver through the Motor Insurer’s Bureau. The Bureau later required him to issue proceedings also against the car owner on the ground that he had permitted the driving. At first it was held the limitation period was six years for such a claim, but on appeal it was held that the words referring to a personal injury action in the Act were wide, and it was only required that the damages claimed arose in respect of personal injuries. The limitation period was three years.

Citations:

Gazette 13-Jan-2000, Times 25-Feb-2000

Statutes:

Limitation Act 1980 11, Uninsured Drivers Agreement 1988

Jurisdiction:

England and Wales

Limitation, Road Traffic, Personal Injury

Updated: 11 May 2022; Ref: scu.84333

Long v Tolchard and Sons Ltd: CA 5 Jan 2000

When a party requested a court to set aside the limitation period, he was under a high duty to disclose all relevant details. Where it turned out later that he had failed to disclose relevant aspects of his medical history, it was perfectly open to the court to revisit the original order and to re-instate the limitation period.

Citations:

Times 05-Jan-2000

Statutes:

Limitation Act 1980 33, 11

Jurisdiction:

England and Wales

Limitation, Personal Injury

Updated: 10 May 2022; Ref: scu.83179

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 cause of action for an entry under a compulsory purchase arose at the date of entry even though compensation not yet assessed. The assumption that no limitation period began to run until the amount of compensation had been agreed was incorrect.

Judges:

Stanley Burnton QC J

Citations:

Times 25-Jun-1997, [1998] 1 WLR 174

Statutes:

Compulsory Purchase Act 1965 11, Limitation Act 1980 9

Jurisdiction:

England and Wales

Citing:

Cited – Turner v Midland Railway Company 1911
No limitation period is applicable until the amount of the compensation has been agreed or determined. . .
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 by:

Appeal from – 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 – Halstead v Council of City of Manchester CA 23-Oct-1997
Land had been compulsorily purchased, and the compensation agreed, but after long delays in payment, not as to the calculation of interest.
Held: Interest would be payable from the date of entry. The limitation period arose only once the . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 10 May 2022; Ref: scu.81379

Corbin v Penfold Metallising Co Ltd: CA 28 Apr 2000

The claimant was diagnosed as suffering from an industrial disease. He instructed solicitors promptly, but they failed to issue within the limitation period. The claimant applied for the time to be lengthened to allow him to claim. The court exercised their discretion in his favour. The failings of his solicitors should not be visited upon him. He had acted with proper speed, had employed solicitors to get on with it. The delay of nearly six months was not excessive.

Citations:

Gazette 28-Apr-2000, Times 02-May-2000, [2000] Lloyd’s Rep Med 247

Statutes:

Limitation Act 1980 33

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, Legal Professions

Updated: 10 May 2022; Ref: scu.79504

Companhia Eurpeia De Transportes Aeros Sa v British Aerospace Plc and Another: CA 12 Jan 1999

A third party is not to be allowed to revive a court action and to be joined in where this was really an attempt to avoid the rules on limitation. Action dismissed for failure to provide security might be revived but not for this purpose or in this case.

Citations:

Times 12-Jan-1999

Jurisdiction:

England and Wales

Limitation

Updated: 10 May 2022; Ref: scu.79412

Re Gee and Co (Woolwich) Ltd: 1975

Company accounts can acknowledge the company’s liability for debts as at the date at which the accounts are drawn up even if they are not finalised and signed until after that date.

Citations:

[1975] Ch 52

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.

Limitation, Company

Updated: 10 May 2022; Ref: scu.264081

Re Priory Garage (Walthamstow) Limited: ChD 2001

The court considered the relevance of a statutory limitation period in relation to applications to set aside transactions as being at an undervalue or as voidable preferences under section 238 to 241 of the 1986 Act. Applications to set aside transactions under the sections are generally actions on a specialty within the meaning of section 8 of the 1980 Act and subject to a 12 year limitation period accordingly; but where the substance of the claim is not to set aside a transaction, but to recover a sum of money, such applications will be governed by section 9, and thus subject to a six-year limitation period.

Judges:

John Randall QC

Citations:

[2001] BPIR 144

Statutes:

Insolvency Act 1986 238, Limitation Act 1980 8

Jurisdiction:

England and Wales

Cited by:

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

Insolvency, Limitation

Updated: 10 May 2022; Ref: scu.244183

Keenen v Miller Insulation and Engineering Ltd: 8 Dec 1987

The claimant’s cause of action for lung fibrosis did not arise at the time he was exposed to asbestos between August 1952 and May 1953 because at that stage he had not suffered physical injury by May 1953. Basing himself on the evidence of Dr Rudd the court held that for a long time after exposure the defence mechanisms of the body held their own and only became exhausted after a period of equilibrium which lasted well after 4th June 1954, the relevant date for limitation.

Judges:

Piers Ashworth QC

Citations:

Unreported, 8 December 1987

Cited by:

Approved – McCaul v Elias Wild 14-Sep-1989
The plaintiff who had suffered pleural thickening from inhalation of asbestos fibres in 1943 – 1950 suffered no actionable injury until about 1985, when he first experienced breathlessness. . .
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.

Limitation, Personal Injury

Updated: 10 May 2022; Ref: scu.238330

Fennon v Anthony Hodari and Co: 2001

The court considered when the claimant was said to have become aware of the possibility of a claim: ‘In order to mount the action she did not need to be advised that the failure to advise amounted to professional negligence. This is irrelevant for the purposes of subsection (5) and the start date for reckoning the limitation period.’

Citations:

[2001] Lloyds Rep PN 183

Statutes:

Limitation Act 1980

Jurisdiction:

England and Wales

Cited by:

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

Limitation, professional Negligence

Updated: 10 May 2022; Ref: scu.237737

Edginton v Clark: CA 1964

An offer to purchase the paper owner’s interest, even if made ‘subject to contract’, can be a sufficient acknowledgement of his title to defeat a claim for adverse possession. Upjohn LJ said: ‘If a man makes an offer to purchase freehold property, even though the offer be subject to contract, he is quite clearly saying that as between himself and the person to whom he makes the offer he realises that the latter has the better title, and that would seem to be the plainest possible form of acknowledgment.’ However, ‘it is not possible to lay down any general rule as to what constitutes an acknowledgment’. Whether any particular form of words amounts to an acknowledgement depends on the true construction of the document in all the surrounding circumstances.

Judges:

Upjohn LJ

Citations:

[1964] 1 QB 367

Jurisdiction:

England and Wales

Cited by:

Cited – Tower Hamlets v Barrett and Another CA 19-Jul-2005
The defendant tenants appealed an order for them to surrender possession of land which they claimed had been acquired by adverse possession. The buildings, including one which shared a party wall with the building owned by the defendants had been . .
Cited – Allen v Matthews CA 13-Mar-2007
The defendants appealed an order refusing title by adverse possession to registered land. They denied that the limitation period had been restarted by their solicitor’s letter acknowledging the title.
Held: The letter must be read as a whole. . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 10 May 2022; Ref: scu.228933

Re Overmark Smith Warden Ltd: ChD 1982

An ordinary creditor’s cause of action for non-payment of a contract debt is barred after the expiration of 6 years from the date of the accrual of his cause of action. He is then no longer a creditor of the company and is neither entitled to present a winding up petition nor to prove for the statute barred debt in the liquidation.

Judges:

Slade J

Citations:

[1982] 1 WLR 1195

Statutes:

Companies Act 1948 257(1), Limitation Act 1939 2(1)(a)

Jurisdiction:

England and Wales

Cited by:

Cited – Ridgeway Motors (Isleworth) Ltd v Alts Ltd CA 10-Feb-2005
The company appelaed a refusal of the judge to strike out a winding up petition. They said the petition was based upon a judgment which was now time barred. The petitioner replied that such a petition was not an action under the section.
Held: . .
Lists of cited by and citing cases may be incomplete.

Limitation, Insolvency

Updated: 09 May 2022; Ref: scu.223041

Preston and others v Wolverhampton Healthcare NHS Trust and Others (No 3): CA 7 Oct 2004

The claimants had had their employments transferred to another body under TUPE. They complained that their pension rights had been discriminatory. The employer appealed a finding that their claim had not been out of time.
Held: The effect of the Regulations was to transfer all employment rights unchanged save only the pension obligations. The pension rights were left were excepted by Reg 7 from the statutory fiction that the new employer had always been the employer. From the date of the transfer no new rights could be acquired as against the former employer, but any possible cause of action in respect of the untransferred pension rights remained. Accordingly the time for the running of any claim was from the date of the transfer. The action had not been begun within six months of that date and was out of time.

Judges:

Pill LJ, Jonathan Parker LJ and Laddie J

Citations:

Times 27-Oct-2004

Statutes:

Transfer of Undertakings (Protection of Employment) Regulations 1981 (1981 No 1794), Equal Pay Act 1970

Jurisdiction:

England and Wales

Citing:

Appeal from – Preston and others v Wolverhampton Healthcare NHS Trust and others EAT 3-Nov-2003
EAT Judge McMullen QC adopted a limited view of the scope of the new principle of stable employment set out at the ECJ and HL. He thought it was intended ‘to rescue employees who do not have a permanent job’; and . .
See Also – Fletcher and others and Preston and others v Midland Bank Plc and Wolverhampton Healthcare NHS Trust Secretary of State for Health and others EAT 24-Jun-1996
EAT Equal Pay Act – Addendum to principal judgment. Part timers’ claims for membership of pension schemes only made out of time.
EAT Equal Pay Act – (no sub-topic). . .
See Also – Preston and Others v Wolverhampton Healthcare NHS Trust and Others, Fletcher and Others v Midland Bank Plc (No 2) HL 8-Feb-2001
Part-time workers claimed that they had been unlawfully excluded from occupational pension schemes because membership was dependent on an employee working a minimum number of hours per week and that that was discriminatory because a considerably . .
See Also – Preston and others v Wolverhampton Healthcare Trust Secretary of State for Health CA 13-Feb-1997
. .
See Also – Preston and Others v Wolverhampton Healthcare NHS Trust and Others; Fletcher and Others v Midland Bank plc ECJ 16-May-2000
ECJ Social policy – Men and women – Equal pay – Membership of an occupational pension scheme – Part-time workers – Exclusion – National procedural rules – Principle of effectiveness – Principle of equivalence. . .

Cited by:

Appeal from – Powerhouse Retail Ltd and others v Burroughs and others; Preston and others v Wolverhampton Healthcare NHS Trust and others (No 3) HL 8-Mar-2006
The appellants said they had been had been discriminated against on the grounds of their sex by the TUPE Regulations. Their discrimination cases had been dismissed as out of time.
Held: The employees’ appeals were dismissed: ‘A statute cannot . .
Lists of cited by and citing cases may be incomplete.

Employment, Limitation

Updated: 09 May 2022; Ref: scu.219088

Taylor v Twinberrow: 1930

It was a misunderstanding of the legal effect of 12 years adverse possession under the Limitation Acts to treat it as if it gave a title: ‘the operation of the statute in giving a title is merely negative; it extinguishes the right and title of the dispossessed owner, and leaves the occupant with a title gained by the fact of possession and resting on the infirmity of the right of others to eject him.’

Judges:

Scrutton LJ

Citations:

[1930] 2 KB 16

Jurisdiction:

England and Wales

Cited by:

Approved – Chung Ping Kwan and others v Lam Island Development Company Limited PC 8-Jul-1996
(Hong Kong) Various provisions had been made for the termination of long leases in Hong Kong. Land had come to be occupied by adverse possession. At first instance the judge had given judgment against the squatters, but then retracted after a later . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Limitation

Updated: 09 May 2022; Ref: scu.191152

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 said: ‘In order to acquire by the Statute of Limitations a title to land which has a known owner, that owner must have lost his right to the land either by being dispossessed of it or by having discontinued his possession of it.’

Judges:

Lord Lindley MR

Citations:

[1900] 1 Ch 19

Jurisdiction:

England and Wales

Cited by:

Disapproved – 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 – 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 . .
Cited – William Sindall Plc v Cambridgeshire County Council CA 21-May-1993
Land was bought for development, but the purchaser later discovered a sewage pipe which very substantially limited its development potential. The existence of the pipe had not been disclosed on the sale, being unknown to the seller.
Held: . .
Cited – Tower Hamlets v Barrett and Another CA 19-Jul-2005
The defendant tenants appealed an order for them to surrender possession of land which they claimed had been acquired by adverse possession. The buildings, including one which shared a party wall with the building owned by the defendants had been . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 08 May 2022; Ref: scu.182282

Williams Brothers Direct Supply Ltd v Raftery: CA 1957

In a claim for the adverse possession of land, the court is to determine whether the acts of user do or do not amount to dispossession of the owner, the character of the land, the nature of the acts done on it and the intention of the squatter must be considered.

Citations:

[1958] 1 QB 159, [1957] 3 All ER 593

Jurisdiction:

England and Wales

Cited by:

Applied – Wallis’s Cayton Bay Holiday Camp Ltd v Shell-Mex and BP Ltd CA 10-Jul-1974
A strip of land between a holiday camp and a garage had been conveyed as an intended roadway. It had not been fenced. A plot of land was sold by the previous farmer to the garage. Later the plaintiffs bought the farm, excluding the roadway, and the . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 08 May 2022; Ref: scu.182990

Law Society v Southall: CA 14 Dec 2001

In making a strike out decision under Part 24, the court of first instance was exercising a discretion which an appellate court should be reluctant to disturb. The court should only interfere in the case of a manifest error. The Law Society had intervened in the legal practice of the respondent’s late husband. The court had struck out a claim by the Society that the home had not been validly transferred to her. That decision was not outside those open to the court on the evidence. There was no applicable limitation period in a case concerning gifts made by the debtor.

Judges:

Lord Justice Peter Gibson, Lord Justice Mantell and Mr Justice Wall

Citations:

Times 07-Jan-2002, [2002] BPIR 336

Statutes:

Civil Procedure Rules Part 24

Jurisdiction:

England and Wales

Citing:

Application for leave – Law Society v Southall CA 17-May-2001
Application for leave to appeal. . .

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.

Civil Procedure Rules, Legal Professions, Limitation

Updated: 08 May 2022; Ref: scu.167350

Leslie Cook, Winifred Cook v Norlands Limited: PC 27 Nov 2001

(Isle of Man) The claimants had been employed for 27 years managing an amusement centre. They had a lower salary, reflecting a promise that the tied accommodation was to be ‘theirs’ after 7 years. After dismissal, the company sought possession, and the claimants sought transfer of the freehold, and asserted a proprietary estoppel. However there was no evidence as to the details of any calculations made, and the claimants had continued to accept low wages long after the house might have been paid for. The claim of a contract was void for uncertainty, and past performance issues did not arise.

Citations:

Appeal No 51 of 2000

Links:

PC, PC

Statutes:

Law Reform (Enforcement of Contracts) Act 1956 (Isle of Man)

Land, Limitation, Employment, Estoppel

Updated: 08 May 2022; Ref: scu.166940

Securum Finance Ltd v Ashton and Another: ChD 18 Jun 1999

The fact that earlier proceedings under a mortgage to recover the debt as a simple contract debt had been dismissed for want of prosecution, did not prevent the mortgagee later proceeding under the mortgage as a specialty debt.

Citations:

Gazette 30-Jun-1999, Times 18-Jun-1999

Statutes:

Limitation Act 1980

Jurisdiction:

England and Wales

Citing:

Appealed to – Ashton and Another v Securum Finance Ltd CA 21-Jun-2000
In the new litigation culture it was correct to strike out a second action which fundamentally re-litigated a case which had previously been struck out on the grounds of abuse of process or delay. The court’s case management required it to consider . .

Cited by:

Appeal from – Ashton and Another v Securum Finance Ltd CA 21-Jun-2000
In the new litigation culture it was correct to strike out a second action which fundamentally re-litigated a case which had previously been struck out on the grounds of abuse of process or delay. The court’s case management required it to consider . .
Lists of cited by and citing cases may be incomplete.

Banking, Limitation

Updated: 08 May 2022; Ref: scu.89156

Sheldon and Others v R H M Outhwaite (Underwriting Agencies) Ltd and Others: HL 5 May 1995

The limitation period did not run whilst relevant facts were deliberately concealed after the damage had been concealed. Section 32 could apply where the concealment of the relevant fact took place after the event as well as at the time of it. The section was intended ‘to ensure that the Act does not operate to bar the claim of a plaintiff whose ignorance of the relevant facts is due to the improper actions of the defendant.’

Judges:

Lord Browne-Wilkinson

Citations:

Times 05-May-1995, Gazette 07-Jun-1995, Independent 09-May-1995, [1996] 1 AC 102

Statutes:

Limitation Act 1932 11(1)(b) 32(1)(b)

Jurisdiction:

England and Wales

Citing:

Appeal from – Sheldon and Others v R H Outhwaite (Underwriting Agencies) Ltd and Others CA 1-Jul-1994
Concealment by Defendant after the event does not stop time running against Plaintiff. . .

Cited by:

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 . .
Cited – Williams v Fanshaw Porter and Hazelhurst CA 18-Feb-2004
The claimant alleged that her solicitors had concealed from her the fact that they had entered a consent order which dismissed her claim for medical negligence.
Held: The solicitor had failed to inform the client that her original claim . .
Lists of cited by and citing cases may be incomplete.

Limitation

Updated: 08 May 2022; Ref: scu.89209

Raja v Lloyds Bank Plc: CA 8 Feb 2001

The claimant’s properties had been sold after repossession by a lender. He claimed damages for the negligent sales at an undervalue. He began the action after six years after the properties were sold, and asserted that the action was based upon the mortgages and that therefore the limitation period was twelve not six years. Assertions that the relationship of mortgagor and mortgagee could give rise to an equitable duty of care were inconsistent with modern authority, and nor could a duty be dependent upon an implied contractual term. The limitation period is six years, and the claim was out of time.

Citations:

Gazette 08-Feb-2001

Jurisdiction:

England and Wales

Land, Limitation, Professional Negligence

Updated: 08 May 2022; Ref: scu.85654

HF Pension Trustees Ltd v Ellison and Others: ChD 24 Feb 1999

In an allegation of professional negligence which had lead to a transfer of funds, time ran for limitation purposes from the time of the transfer, and not from the point later when it became apparent that the legal advice may have been negligent. A solicitor had advised that a transfer of pension funds was lawful, but a later decision of the courts clarified that this was wrong. The limitation period was not extended because the unlawfulness was a matter of law and all the facts had been known: ‘What the plaintiff’s argument boils down to is that although it knew all the material facts it did not know until later that those facts gave rise to a claim in negligence. In my judgment, however, in cases under section 14A as in personal injury cases, their ignorance that the known facts may give rise to a claim in law cannot postpone the running of time under the 1980 Act. As I read the sections and the authorities, both section 14 and section 14A are concerned exclusively with matters of fact provable by evidence, as opposed to matters of English law, in respect of which evidence is inadmissible.’

Judges:

Jonathan Parker J

Citations:

Times 05-Mar-1999, Gazette 24-Feb-1999, [1999] Lloyds LR (PN) 489

Statutes:

Latent Damage Act 1986, Limitation Act 1980 14A

Jurisdiction:

England and Wales

Cited by:

Cited – Denekamp v Denekamp CA 8-Dec-2005
Appeal against striking out of claim and civil restraint order. . .
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, Professional Negligence

Updated: 08 May 2022; Ref: scu.81357

Carroll v Manek and Another: ChD 18 Aug 1999

A person who acquired title to land by adverse possession took only the title against which his possession was adverse. Where the land was charged, he acquired only the equity of redemption, and where his occupation was of part only, his right was subject to the entire mortgage. If he wanted the land free of it, the entire loan was to be discharged.

Judges:

Judge Hicks, QC

Citations:

Times 18-Aug-1999

Land, Limitation

Updated: 08 May 2022; Ref: scu.78918

Ruscoe v Grounsell: CA 1903

A stone tablet had been set into the wall of a building in 1816. I was inscribed ‘this stone is placed by J to perpetuate R’s right to build within nine inches of this and any other building.’ R was selling part of his land (adjoining the plaque) to J. A buidling was erected next to the sign in 1901. The plaintiff objected that the new building obstructed the light to a window. The defendant relied upon the plaque.
Held: The claim succeeded. The defence under section 3 did not suceed because it could not be construed as a consent or agreement within section 3 as regards a right of light.
Lord Halsbury said: ‘Enjoyment of light for twenty years would prima facie, under section 3 of the Prescription Act 1832, give a right to the light. Those who deny that the right has been acquired must show that the right has been cut down by the proviso to section 3. Looking at what has been done in this case, I will assume that the stone tablet contained an agreement and that it was in writing. But the question still remains whether that which appears upon this stone is an express agreement relating to light and made for that purpose. Looking at the possible reasons why the parties may have agreed to this inscription, I am wholly unable to say that it is so. I cannot say why the parties agreed to put this tablet up. If I were to do so, I should be doing that which the tablet itself has carefully avoided doing. I cannot come to the conclusion that it was in the minds of the parties that this tablet was intended to be a reservation as to the acquisition of a right to light. I can imagine it possible that the parties desired to preserve the boundary, when we see the statement as to ‘nine inches.’ I cannot, then, come to the conclusion that the right to obstruct the access of light to the windows of these houses was expressly reserved by an agreement expressly made for that purpose.’

Judges:

Cozens-Hardy LJ, Lord Halsbury LC and Lord Alverstone LCJ

Citations:

(1903) 89 LT 426

Statutes:

Prescription Act 1832 3

Jurisdiction:

England and Wales

Land, Limitation

Updated: 08 May 2022; Ref: scu.567940

Turner v Midland Railway Company: 1911

No limitation period is applicable until the amount of the compensation has been agreed or determined.

Citations:

[1911] KB 832

Jurisdiction:

England and Wales

Cited by:

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

Limitation

Updated: 08 May 2022; Ref: scu.430594

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 the recovery of money).

Judges:

Goddard LJ

Citations:

[1943] KB 385

Statutes:

Limitation Act 1939 2(1)(d)

Jurisdiction:

England and Wales

Cited by:

Dissenting dicta approved – 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 – 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.

Limitation

Updated: 08 May 2022; Ref: scu.430595

McIntyre v Armitage Shanks Ltd: HL 1980

A workman contracted pneomoconiosis and knew all the relevant facts but was advised by the local secretary of his trade union that he could not sue. His later claim was met by a defence of limtation.
Held: The action was time barred.

Citations:

1980 SC (HL) 46

Jurisdiction:

England and Wales

Cited by:

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: 07 May 2022; Ref: scu.267965

Nesbitt v Mablethorpe Urban District Council: 1918

Where a squatter lets a tenant of his into possession the consequent acceptance of rent by the squatter is to be taken as evidence of possession by the squatter;

Citations:

[1918] 2 KB 1

Jurisdiction:

England and Wales

Cited by:

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

Land, Limitation

Updated: 07 May 2022; Ref: scu.267349

Des Barres and Another v Shey: 1873

The defendants resisted a claim for possession asserting adverse possession from 1815 or 1832. This included possession during periods over which they had granted tenancies or licences but where the tenants or licensees had been in occupation thereunder and had paid rent to the defendant or his predecessors.
Held: The defendants were taken to have acquired legal possession by way of possession; the licensee’s or lessee’s occupation was properly counted by the squatter as acts of possession as against the paper owner.

Citations:

(1873) 29 LT (NS) 592

Jurisdiction:

England and Wales

Cited by:

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

Land, Limitation

Updated: 07 May 2022; Ref: scu.267348

Jacobs v Sesame Ltd: CA 30 Oct 2014

Whether the Respondent/Claimant, Mrs Jacobs, can take advantage of the provisions of s.14A of the Limitation Act 1980 in order to pursue a claim in negligence against the Appellant/Defendant which is otherwise time-barred.

Judges:

Lord Justice Tomlinson

Citations:

[2014] EWCA Civ 1410

Links:

Bailii

Jurisdiction:

England and Wales

Limitation

Updated: 07 May 2022; Ref: scu.538188

Pratt v Cook, Son and Co (St Paul’s) Ltd: HL 1940

Judges:

Lord Atkin

Citations:

[1940] AC 437

Jurisdiction:

England and Wales

Cited by:

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

Limitation

Updated: 07 May 2022; Ref: scu.244180

In re Benzon: CA 1914

Limitation applies where a claim is not against a bankrupt’s estate or is not a claim ‘in the bankruptcy’.

Citations:

[1914] 2 Ch 68

Jurisdiction:

England and Wales

Cited by:

Approved – Cottrell v Price 1960
The rights of a secured creditor against his security were held to be rights ‘outside the bankruptcy’. As to the case of Benzon: ‘The importance of that case and of the way in which the doctrine is stated in the judgment of the Court is that it . .
Cited – Doodes v Gotham, Perry ChD 17-Nov-2005
The trustee in bankruptcy had taken a charge on the property in 1992 to support the bankruptcy in 1988. He sought to enforce it in 2005. The chargor appealed an order which denied he was protected by limitation.
Held: The appeal succeeded. . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Limitation

Updated: 07 May 2022; Ref: scu.235331

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 Education contended that there had been no reverter because although the land was no longer being used for the general education of poor persons, use as a Sunday school provided them with ‘religious and useful knowledge’. The argument of Mr Cave KC for the successor to the grantor was that a reverter occurred if the land ceased to be used for the statutory purpose chosen by the grantor. It did not matter that it was still being used for some other purpose which he could have chosen but did not: ‘The provision for reverter means that the land is to revert if it ceases to be used for such of the purposes of the Act as are specified in the grant, namely, in this case, the first purpose only.’
Held: Warrington J accepted this argument, saying that the Act specified three purposes and that ‘the grantor may select his own purpose from amongst those three’. ‘you must read ‘the purposes in this Act mentioned’ as meaning such of those purposes as are applicable to the case in question’ and ‘looking at the substance of the matter, as I consider I am bound to do, I must hold that the premises have ceased to be used for the purposes in the Act mentioned.’

Judges:

Warrington J

Citations:

[1910] 1 Ch 92

Statutes:

School Sites Act 1841 82

Jurisdiction:

England and Wales

Cited by:

Applied – 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 – 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.

Land, Limitation

Updated: 07 May 2022; Ref: scu.231636

British Railways Board v G J Holdings Ltd: 1974

There can be no adverse possession where the squatter’s use of the land was not inconsistent with the use intended by the paper owner.

Citations:

(1974) 230 EG 973

Jurisdiction:

England and Wales

Cited by:

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

Limitation, Land

Updated: 07 May 2022; Ref: scu.228932

Bowden v Sister Bernard Mary Murray and others: OHCS 30 Jul 2004

Judges:

Lord Johnston

Citations:

[2004] ScotCS 194, 2004 SLT 967

Statutes:

Prescription and Limitation (Scotland) Act 1973 17

Jurisdiction:

Scotland

Cited by:

Appeal from – 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.

Personal Injury, Limitation

Updated: 06 May 2022; Ref: scu.200186

Dove v Banhams Patent Locks: 1983

The defendants installed a security gate. The plaintiff, a subsequent purchaser of the property claimed damages when the property was burgled and a defect in the security gate was revealed.
Held: The defendant owed a duty of to the subsequent owner, and the limitation began when the defect came to light on the burglary.

Judges:

Hodgson J

Citations:

[1983] CLY 2215, [1983] 2 All ER 833

Jurisdiction:

England and Wales

Cited by:

Considered – D W Moore and Co Ltd v Ferrier CA 1988
The company took in a new director and shareholder, and relied upon their solicitors to draft a covenant to restrain him competing within a set time of leaving the company. The covenant turned out to be ineffective. The defendant solicitors replied . .
Cited – Dayani v London Borough of Bromley TCC 25-Nov-1999
LA Tenant liable for permissive waste
The local authority was tenant of properties which it sub-licensed to homeless persons for three years was liable for having allowed the properties to deteriorate. It was claimed that they were liable for permissive waste as tenants for a fixed . .
Lists of cited by and citing cases may be incomplete.

Limitation

Updated: 06 May 2022; Ref: scu.196946

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.
Held: The appeal failed. Relying on section 15 of the 1963 Act and despite the absence of argument on the point, no distinction could be drawn between cases coming within the three-year period of limitation after 1954 and cases coming within the six-year period of limitation before 1954.

Judges:

Lord Denning MR, Sachs LJ, Stamp LJ

Citations:

[1972] 1 QB 361

Statutes:

Limitation Act 1963 2(1) 15

Jurisdiction:

England and Wales

Cited by:

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

Limitation, Personal Injury

Updated: 06 May 2022; Ref: scu.189910

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 claimed limitation under Walkley in defence of the second action.
Held: The Walkley principle does not apply to defeat in limine a second action, notwithstanding that the defect was capable of being cured by substituting the names of representative members. The plaintiff could rely on section 33: ‘There was no action in being against the present defendants at the time when the limitation period expired or thereafter when the application under section 33 was made. . . But it seems to me that the plaintiff is now prejudiced by section 11, since he cannot bring this first properly constituted action unless he can avail himself of section 33. . . In my view, the position is now that he is prejudiced by section 11 and is entitled to rely on section 33. . . This is not a case of a mere repetition of an identical action which has been instituted during the limitation period. In the present case the action which had started during the limitation period was defective and invalid and not capable of resurrection . . The Court is therefore entitled to conclude that the provisions of section 11 prejudiced the plaintiff in relation to the present action. Accordingly I would dismiss this appeal and allow this action to proceed by reason of section 33.’

Judges:

Kerr LJ

Citations:

Times 18-Feb-1989, Transcript No 140 of 1989

Statutes:

Limitation Act 1980

Jurisdiction:

England and Wales

Citing:

Cited – Walkley v Precision Forgings Ltd HL 1979
The plaintiff tried to bring a second action in respect of an industrial injury claim outside the limitation period so as to overcome the likelihood that his first action, although timeous, would be dismissed for want of prosecution.
Held: He . .

Cited by:

Cited – Barry Young (Deceased) v Western Power Distribution (South West) Plc CA 18-Jul-2003
The deceased had begun an action on becoming ill after exposure to asbestos by the defendant. He withdrew his action after receiving expert evidence that his illness was unrelated. A post-mortem examination showed this evidence to be mistaken. His . .
Applied – 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 – Jacqueline Adam v Rasal Ali CA 21-Feb-2006
The defendant sought damages against the defendant for personal injury from his alleged negligence. Her action was struck out and she recommenced the action. The defendant pleaded that she was out of time. The claimant said that the first action . .
Cited – Horton v Sadler and Another HL 14-Jun-2006
The claimant had been injured in a road traffic accident for which the defendant was responsible in negligence. The defendant was not insured, and so a claim was to be made against the MIB. The plaintiff issued proceedings just before the expiry of . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Limitation

Updated: 06 May 2022; Ref: scu.185755

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 sufficient therefore to bring it within the category of ‘most exceptional circumstances’ which Lord Diplock had envisaged in the Walkley’.

Judges:

Cox J

Citations:

[2002] EWHC 2529

Statutes:

Limitation Act 1980 33(1)

Jurisdiction:

England and Wales

Citing:

Cited – Walkley v Precision Forgings Ltd HL 1979
The plaintiff tried to bring a second action in respect of an industrial injury claim outside the limitation period so as to overcome the likelihood that his first action, although timeous, would be dismissed for want of prosecution.
Held: He . .

Cited by:

Cited – Barry Young (Deceased) v Western Power Distribution (South West) Plc CA 18-Jul-2003
The deceased had begun an action on becoming ill after exposure to asbestos by the defendant. He withdrew his action after receiving expert evidence that his illness was unrelated. A post-mortem examination showed this evidence to be mistaken. His . .
Lists of cited by and citing cases may be incomplete.

Limitation

Updated: 06 May 2022; Ref: scu.185756

Ex Parte Caucasian Trading Corporation: Bankruptcy Petition: CA 1896

A proceeding in bankruptcy was based upon an order to enforce an ordinary civil arbitration award. Under the 1889 Act it was possible to obtain an order in the High Court of England for the enforcement of such an order and all that was held was that that was a civil proceeding in the High Court. For the enforcement of the order it was necessary to issue an originating summons in the High Court based upon the award and to obtain an order.
Held: It was a proceeding in the High Court.

Citations:

[1896] 1 QB 368

Statutes:

Arbitration Act 1889 12

Cited by:

Cited – National Ability Sa v Tinna Oils and Chemicals Ltd CA 11-Dec-2009
Implied promise to pay arbitral award
The parties disputed how limitation affects the enforcement of an arbitration award. More than six years had passed since the award had been made, and the defendant said it was out of time.
Held: A party can enforce an award either by ordinary . .
Lists of cited by and citing cases may be incomplete.

Limitation, Insolvency

Updated: 05 May 2022; Ref: scu.384114

Bray v Stuart A West and Co: 1989

The court’s inherent supervisory jurisdiction over legal professions are not proceedings founded on any cause of action, and so are not subject to the Limitation Act.

Judges:

Warner J

Citations:

(1989) 139 NLJ 753

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.

Legal Professions, Limitation

Updated: 05 May 2022; Ref: scu.304585

Randall v Stevens And Others: 25 Jun 1853

A landlord evicted a tenant who had failed to pay any rent for twenty years. Statute provided that a house could not be repossessed simply by exercising a right of entry.
Held: Lord Campbell LC, giving the judgment of the Court of Queen’s Bench on appeal from a judgment given at assizes, held that entry could be made ‘by stepping on any corner of the land in the night time and pronouncing a few words, without any intention or wish to take possession.’ However, where possession was taken with an intention to possess, then ‘whether possession was retained by the landlord an hour or a week must for this purpose [i.e. taking possession other than by mere entry] be immaterial.’

Judges:

Lord Campbell LC

Citations:

[1853] EngR 767, (1853) 2 El and Bl 641, (1853) 118 ER 907

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: 05 May 2022; Ref: scu.294753

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 extinction of the title also determined her entitlement to arrears of rent.
Lord Alverstone MR said: ‘In the year 1893 R. T. Jolly obtained, by virtue of the Real Property Limitation Act 1874, s. 1, an absolute title to the property. It is, I think, inconsistent with his right so acquired that the rent which he ought to have paid should be deemed to be still owing. The effect of the Limitation Acts of 1833 and 1874 is, in my opinion, that, after the expiration of the statutory period of 20 and 12 years respectively, all rights which the reversioner would have had in respect of the land have come to an end; and I do not think that it would be consistent with that position that rent, the non-payment of which has given the occupier a title to the land, should still be deemed to be owing.’
Rigby LJ said: ‘It seems to me to be plain that on the expiration of the twelve years all the rights of the owner of the land are determined.’

Judges:

Lord Alverstone MR, Rigby LJ

Citations:

[1900] 2 Ch 616

Jurisdiction:

England and Wales

Cited by:

Applied – 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 – 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.

Landlord and Tenant, Limitation

Updated: 05 May 2022; Ref: scu.269754

Great Eastern Railway v Goldsmid: 1884

The City of London Corporation had implicitly given up a franchise consisting of an exclusive right to markets within London that had apparently been conferred on it by an Act or charter of Edward III in circumstances in which it had acquiesced for centuries in the holding of other markets. Lord Selborne discussed the reasoning behind te law of prescription: ‘In the first place, if there be a valuable principle in our law, the observation of which within its proper limits is of cardinal importance, it is this, that all reasonable presumptions shall be made in support and not in destruction of long enjoyment and usage . . .It is, as I have said, a principle of vital importance to the maintenance of public and private rights in this country, where no law can be repealed by mere desuetude, that reasonable presumptions shall be made of all things which are reasonably possible in support of such long enjoyment.’

Judges:

Lord Selborne

Citations:

(1884) 9 App Cas 927

Jurisdiction:

England and Wales

Cited by:

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: 05 May 2022; Ref: scu.269744

Test Claimants In The Franked Investment Income Group Litigation and Others v Revenue and Customs: SC 20 Nov 2020

Judges:

Lord Reed, President, Lord Hodge, Deputy President, Lord Carnwath, Lord Lloyd-Jones, Lord Briggs, Lord Sales, Lord Hamblen

Citations:

[2020] UKSC 47

Links:

Bailii, Bailii Press Sumary, Bailii Issues and Facts

Jurisdiction:

England and Wales

Corporation Tax, European, Limitation

Updated: 04 May 2022; Ref: scu.656386

Re Owen: 1894

Legacies were charged on land after the death of the life tenant. The life tenant died in 1880. It was not suggested that time ran from the death of the testator in 1854.

Citations:

[1894] 3 Ch 220

Cited by:

Cited – Gotham v Doodes CA 25-Jul-2006
The former bankrupt resisted sale of his property by the trustee, saying that enforcement was barred by limitation. He and his wife bought the property in early 1988, and he was made bankrupt in October 1988. He was dischaged from bankruptcy in . .
Lists of cited by and citing cases may be incomplete.

Trusts, Limitation

Updated: 04 May 2022; Ref: scu.244736

Morris v Lokass and Motor Insurers’ Bureau: CC 17 Feb 2003

(Birmingham County Court ) The court considered a request to exercise its discretion to allow a claim to proceed despite the writ having been issued outside the limitation period.
Held: The court accepted the distinction proposed for the defendant that as between the claimant’s solicitors’ professional indemnity insurers and the MIB the loss should fall on the former, who had received a premium, and not on the MIB, who had not.

Judges:

Judge McKenna

Citations:

Unreported, 17 February 2003

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.

Negligence, Limitation

Updated: 04 May 2022; Ref: scu.242526

Peconic Industrial Development Ltd v Lau Kwok FAI: 27 Feb 2009

Hong Kong Court of Final Appeal. The limitation period for a claim in dishonest assistance is 6 years. For limitation purposes a distinction is to be made between two kinds of constructive trustees: those who are fiduciaries and those who are non-fiduciaries. The distinction between the two classes was made clear in the judgment of Lord Hoffmann: ‘First, there are persons who, without any express trust, have assumed fiduciary obligations in relation to the trust property; for example as purchaser on behalf of another, trustee de son tort, company director or agent holding the property for a trustee. I shall call them fiduciaries. They are treated in the same way as express trustees and no limitation period applies to their fraudulent breaches of trust. Then there are strangers to the trust who have not assumed any prior fiduciary liability but make themselves liable by dishonest acts of interference. I shall call them non-fiduciaries. They are also called constructive trustees but this, as Ungoed-Thomas J said in Selangor United Rubber Estates Ltd v Cradock (No 3) [1968] 1 WLR 1555, p1582 is a fiction: ‘nothing more than a formula for equitable relief’. They are not constructive trustees within the meaning of the law of limitation.’

Judges:

Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Mr Justice Litton NPJ and Lord Hoffmann NPJ

Citations:

[2009] HKCFA 16, [2009] 5 HKC 135, [2009] 2 HKLRD 537, (2009) 12 HKCFAR 139

Links:

HKLii

Jurisdiction:

England and Wales

Citing:

Cited – Soar v Ashwell CA 1893
Trustees under a will had entrusted the trust fund to a solicitor for investment. The solicitor exercised all of their administrative and investment powers for them and distributed part of the fund invested to the beneficiaries under the will but . .

Cited by:

Highly Persuasive – Williams v Central Bank of Nigeria QBD 8-Apr-2011
The claimant had been defrauded by a customer of the defendant bank. He brought a claim against the bank, saying that they knew or ought to have known of the fraudster’s activities, and were liable. The Bank denied that the UK courts had . .
Cited – Williams v Central Bank of Nigeria SC 19-Feb-2014
Bank not liable for fraud of customer
The appellant sought to make the bank liable for a fraud committed by the Bank’s customer, the appellant saying that the Bank knew or ought to have known of the fraud. The court was asked whether a party liable only as a dishonest assistant was a . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Limitation

Updated: 04 May 2022; Ref: scu.537024

GL Baker Ltd v Medway Building and Supplies Ltd: CA 11 Jan 1958

A claim was made by a company to recover money entrusted to its auditor who fraudulently had paid away some of it to a company of which he was a director. Amendments of pleadings for the purpose of determining the real question in controversy between the parties are usually allowed, unless the other party will be seriously prejudiced thereby.
Danckwerts J said: ‘This Act is one which I understand was drafted by a very eminent Chancery lawyer, but nonetheless it is one which gives considerable difficulties of interpretation whenever the court is concerned with its application . . It seems to me that the words ‘in respect of any fraud or fraudulent breach of trust’ may be capable of referring to a case where the action of the plaintiff is based upon the fact that their monies were fraudulently paid away and have reached the hands of an innocent party. That is a possible construction but whether or not it is the right one is not at all clear.’

Judges:

Danckwerts J, Jenkins LJ

Citations:

[1958] 1 WLR 1216, [1958] 3 All ER 540

Cited by:

Cited – Williams v Central Bank of Nigeria QBD 8-Apr-2011
The claimant had been defrauded by a customer of the defendant bank. He brought a claim against the bank, saying that they knew or ought to have known of the fraudster’s activities, and were liable. The Bank denied that the UK courts had . .
Cited – RG Carter Ltd v Clarke CA 1990
Even in an Order 14 application, the court will, on suitable occasions, be prepared to decide complicated and difficult questions of law.
Lord Donaldson MR said: ‘If a judge is satisfied that there are no issues of fact between the parties, it . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Limitation

Updated: 04 May 2022; Ref: scu.537025

Lawrence and Another v Fen Tigers Ltd and Others: CA 2012

Jackson LJ set out the way in which planning consents would affect whether actions amounted to a nuisance: ‘I would summarise the law which is relevant to the first ground of appeal in four propositions. (i) A planning authority by the grant of planning permission cannot authorise the commission of a nuisance. (ii) Nevertheless the grant of planning permission followed by the implementation of such permission may change the character of the locality. (iii) It is a question of fact in every case whether the grant of planning permission followed by steps to implement such permission do have the effect of changing the character of the locality. (iv) If the character of a locality is changed as a consequence of planning permission having been granted and implemented then: (a) the question whether particular activities in that locality constitute a nuisance must be decided against the background of its changed character; (b) one consequence may be that otherwise offensive activities in the locality cease to constitute a nuisance.’
. . And ‘time does not run for the purposes of prescription unless the activities of the owner (or occupier) of the putative dominant land can be objected to by the owner of the putative servient land. The notion that an easement can only be acquired by prescription if the activity concerned is carried on ‘as of right’ for 20 years, ie nec vi, nec clam, nec precario, would seem to carry with it the assumption that it would not assist the putative dominant owner if the activity was carried on ‘of right’ for 20 years, as no question of force, stealth or permission could apply.’

Judges:

Jackson, Mummery, Lewison LJJ

Citations:

[2012] 3 All ER 169

Jurisdiction:

England and Wales

Citing:

See Also – Lawrence and Another v Fen Tigers Ltd and Others QBD 18-Oct-2010
Application to strike out passages from witness statements. . .
See Also – Lawrence and Another v Fen Tigers Ltd and Others QBD 18-Oct-2010
The court made orders to assist the future management of the case. . .
Appeal from – Lawrence and Another v Fen Tigers Ltd and Others QBD 4-Mar-2011
The claimants had complained that motor-cycle and other racing activities on neighbouring lands were a noise nuisance, but the court also considered that agents of the defendants had sought to intimidate the claimants into not pursuing their action. . .

Cited by:

Cited – Thomas and Another v Merthyr Tydfil Car Auction Ltd QBD 8-Oct-2012
The claimant complained of nuisance from adjoining car auctions works belonging to the defendants. . .
Cited – Merthyr Tydfil Car Auction Ltd v Thomas and Another CA 11-Jul-2013
The company appealed against an award of 9,000 pounds for nuisance in the form of excessive noise and fumes.
Held: The appeal failed: ‘the grant of planning permission cannot authorise the commission of a nuisance but it may, following its . .
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 . .
Lists of cited by and citing cases may be incomplete.

Nuisance, Limitation, Land

Updated: 04 May 2022; Ref: scu.526350

Walsh v Rother District Council: 1978

Donaldson J considered the phrase ‘attributable to’ saying: ‘The fundamental problem is whether Mr Walsh’s loss of employment was ‘attributable to’ any provision of the 1972 Act, ie the April 1974 reorganisation. These words have been considered in a number of cases and I do not wish to add to the explanations and definitions which have been given. Counsel for Mr Walsh submits that it is a wider concept than ‘directly caused by’, or ’caused by or resulting from’, but he accepts that it involves some nexus between the effect and the alleged cause. He suggests that ‘owing to’ or ‘a material contributory cause’ or ‘a material cause in some way contributing to the effect’ may be synonyms. Lord Reid in Central Asbestos Co v Dodd said: ”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, you can attribute an effect to a cause. The essential elements is connection of some kind’. Suffice it to say that these are plain English words involving some causal connection between the loss of employment and that to which the loss is said to be attributable. However, this connection need not be that of a sole, dominant, direct or proximate cause and effect. A contributory causal connection is quite sufficient’.

Judges:

Donaldson J

Citations:

[1978] 1 All ER 510

Limitation

Updated: 04 May 2022; Ref: scu.459615

Carr v Foster: 1842

The plaintiff claimed a profit a prendre saying had been acquired under s.1 of the 1832 Act, by use for 30 years, the applicable period in relation to a profit a prendre. The evidence was that the right in question, to pasture cattle on a common, had not been exercised in two years out of the period of thirty because the person claiming the right had no commonable cattle in those years. Lord Denman CJ overruled an objection that the acquisition of the profit could not be shown by reason of the non-use in two years, and the jury found for the plaintiff claiming the profit a prendre. Cause was shown, so the matter was reconsidered en banc.
Held: Lord Denman CJ had not changed his mind. He said: ‘I am of opinion that the thirty years’ enjoyment was sufficiently made out. There must be some interval in the enjoyment of all such rights; and it must be a question for the jury, in each case, whether the right was, substantially, enjoyed for the requisite period. It has been ingeniously argued that a thirty years’ enjoyment cannot have taken place where there has been a two years’ intermission. But the words of sect. 1 are ‘without interruption’, not ‘without intermission’. And the intermission must be a matter open, in every case, to explanation . . where actual enjoyment is shewn before and after the period of intermission, it may be inferred from that evidence that the right continued during the whole time.’
Patteson J said: ‘I think there is no difficulty in the construction of the statute. ‘Interruption’ in sect. 1 must clearly mean an obstruction by the act of some other person than the claimant, not a cessation by him of his own accord . . It is suggested that the argument for the plaintiff might apply equally if there were a cesser for seven years. I am not prepared to say that it would not. It might be that, under the circumstances, the party had no occasion to use the right. The question would always be for the jury. So long an intermission would be a strong piece of evidence against the continued right: but it would be for them to determine.’
Williams J said: ‘I am of the same opinion. ‘Interruption’ means an obstruction, not a cesser or intermission, or any thing denoting a mere breach in time. There must be an overt act, indicating that the right is disputed. Before the statute, in cases relating to common, it was very usual to explain the ceasing to turn on cattle by the fact that there were not, at the time, commonable cattle to turn on. No necessary inference arises from the cesser during two, three, or seven years. In this particular case enjoyment for the requisite period was abundantly made out.’

Judges:

Lord Denman CJ, Patteson J, Williams J

Citations:

(1842) 3 QBR 581

Statutes:

Prescription Act 1832

Cited by:

Cited – Lawrence and Another v Fen Tigers Ltd and Others QBD 4-Mar-2011
The claimants had complained that motor-cycle and other racing activities on neighbouring lands were a noise nuisance, but the court also considered that agents of the defendants had sought to intimidate the claimants into not pursuing their action. . .
Cited – Coventry and Others v Lawrence and Another SC 26-Feb-2014
C operated a motor racing circuit as tenant. The neighbour L objected that the noise emitted by the operations were a nuisance. C replied that the fact of his having planning consent meant that it was not a nuisance.
Held: The neighbour’s . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 02 May 2022; Ref: scu.430353

Smith v Clay: 10 May 1767

Bill of review for error apparent will not lie after twenty years from the making of the decree. The time runs from the decree, not from the inrolment.

Citations:

[1767] EngR 54, (1767) Amb 645, (1767) 27 ER 419

Links:

Commonlii

Cited by:

See Also – Smith v Clay 10-May-1767
Long Delay in Application Debarred Remedy
Review was sought of a decree pronounced some thirty or forty years before. The defect was apparent on the face of the record.
Held: The review was barred by the length of time elapsed.
Lord Camden LC applied the doctrine of laches, . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 02 May 2022; Ref: scu.374833

Jetivia Sa and Another v Bilta (UK) Ltd and Others: SC 22 Apr 2015

The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the pleaded facts, Mr Chopra and Mr Nazir were the directing organ of Bilta under its constitution. They constituted the board. Mr Chopra was also the sole shareholder. As between Bilta and Jetivia it was common ground on the pleadings that they were the ‘directing mind and will’ of Bilta for all purposes, and certainly in relation to those of its functions which are relevant in these proceedings.
Held: The defendant company and director failed in their appeals, both in relation to the illegality defence and in relation to section 213. The plea of ex turpi causa non oritur actio was not available to the directors of a company in a defence to an action against them by the company for acts involvig breaches of their duties as directors.
Lord Mance said: ‘ it is certainly unjust and absurd to suggest that the answer to a claim for breach of a director’s (or any employee’s) duty could lie in attributing to the company the very misconduct by which the director or employee has damaged it. A company has its own separate legal personality and interests. Duties are owed to it by those officers who constitute its directing mind and will, similarly to the way in which they are owed by other more ordinary employees or agents. All the shareholders of a solvent company acting unanimously may in certain circumstances (which need not here be considered, since it is not suggested that they may apply) be able to authorise what might otherwise be misconduct towards the company. But even the shareholders of a company which is insolvent or facing insolvency cannot do this to the prejudice of its creditors, and the company’s officers owe a particular duty to safeguard the interest of such creditors. There is no basis for regarding the various statutory remedies available to a liquidator against defaulting officers as making this duty or its enforcement redundant.’

Judges:

Lord Neuberger, President, Lord Mance, Lord Clarke, Lord Sumption, Lord Carnwath, Lord Toulson, Lord Hodge

Citations:

[2015] UKSC 23, [2015] WLR(D) 182, UKSC 2013/0206, [2015] 2 Lloyd’s Rep 61, [2015] 1 BCLC 443, [2015] 2 All ER (Comm) 281, [2015] BVC 20, [2015] 2 WLR 1168, [2015] BCC 343, [2015] 2 All ER 1083, [2016] AC 1

Links:

Bailii, Bailii Summary, WLRD, SC Summary, SC

Jurisdiction:

England and Wales

Citing:

Appeal from – Jetivia Sa and Another v Bilta (UK) Ltd and Others CA 31-Jul-2013
Defendants appealed against refusal of their request for a summary striking out for lack of jurisdiction, of the claims against them arising from their management of the insolvency of the first defendant. . .
Cited – Bowman v Secular Society Limited HL 1917
The plaintiff argued that the objects of the Secular Society Ltd, which had been registered under the Companies Acts, were unlawful.
Held: The House referred to ‘the last persons to go to the stake in this country pro salute animae’ in 1612 or . .
At first Instance (1) – Bilta (UK) Ltd (In Liquidation) v Nazir and Others ChD 17-May-2010
The sixth defendant resisted a claim against it saying that matters between them were governed by a framework agreement which provided for matters to be resolved by arbitration. The claimant resisted, denying the arbitration agreement and saying . .
At first Instance (2) – Bilta (Uk) Ltd v Nazir and Others ChD 24-Nov-2010
The company had been wound up by the Revenue on the basis that it had been used for a substantial VAT fraud. The liquidators now sued those said to have participated. A defendant denied the jurisdiction because of a disputed arbitration agreement. . .
Appeal from – Bilta (UK) Ltd and Others v Nazir and Others ChD 30-Jul-2012
The company was said to have engaged in a fraud based on false European Trading Scheme Allowances, and had been wound up by the Revenue. The liquidators, in the company name, now sought recovery from former directors and associates.
Held: The . .
Cited – Abrath v North Eastern Railway Co HL 15-Mar-1886
The plaintiff had brought an action against the company of malicious prosecution. It was rejected by the jury and again on appeal.
Held: The appeal failed. In an action for damages for the tort of malicious prosecution one of the elements of . .
Cited – The Citizens Life Assurance Company Limited v Brown PC 6-May-1904
(New South Wales) A malicious libel was alleged. The life assurance company was vicariously liable in respect of a libel contained in a circular sent out by a person who was employed by the company under a written agreement as its ‘superintendent of . .
Cited – West Mercia Safetywear Ltd v Dodds CA 1988
If a company continues to trade whilst insolvent but in the expectation that it would return to profitability, it should be regarded as trading not for the benefit of the shareholders, but for the creditors also. If there is a possibility of . .
Cited – Tinsley v Milligan CA 1992
The court considered the defence of illegal user to a claim to have established an easement by prescription: ‘These authorities seem to me to establish that when applying the ‘ex turpi causa’ maxim in a case in which a defence of illegality has been . .
Cited – Lennard’s Carrying Company Limited v Asiatic Petroleum Company Limited HL 1915
The House was asked as to when the acts of an individual became those of his employer under section 502 (‘any loss or damage happening without (the ship owner’s) actual fault or privity’).
Held: Viscount Haldane LC said: ‘It must be upon the . .
Cited – El Ajou v Dollar Land Holdings Plc and Another ChD 3-Jan-1993
A non active director may still be company’s ‘directing mind’. The doctrine of attributing the actions of individuals to a company is that ‘Their minds are its mind; their intention its intention; their knowledge its knowledge.’
Tracing was no . .
Cited – Tinsley v Milligan HL 28-Jun-1993
Two women parties used funds generated by a joint business venture to buy a house in which they lived together. It was vested in the sole name of the plaintiff but on the understanding that they were joint beneficial owners. The purpose of the . .
Cited – El Ajou v Dollar Land Holdings Ltd CA 2-Dec-1993
The court was asked whether, for the purposes of establishing a company’s liability under the knowing receipt head of constructive trust, the knowledge of one of its directors can be treated as having been the knowledge of the company.
Held: . .
Cited – Meridian Global Funds Management Asia Ltd v The Securities Commission Co PC 26-Jun-1995
(New Zealand) Lord Hofmann said: ‘There is in fact no such thing as the company as such, no ‘ding an sich’, only the applicable rules. To say that a company cannot do something means only that there is no one whose doing of that act would, under the . .
Not to be followed – Moore Stephens (A Firm) v Stone Rolls Ltd (in liquidation) HL 30-Jul-2009
The appellants had audited the books of the respondent company, but had failed to identify substantial frauds by an employee of the respondent. The auditors appealed a finding of professional negligence, relying on the maxim ex turpi causa non . .
Cited – Hounga v Allen and Another SC 30-Jul-2014
The appellant, of Nigerian origin had been brought here at the age of 14 with false identity papers, and was put to work caring for the respondent’s children. In 2008 she was dismissed and ejected from the house. She brought proceedings alleging . .
Cited – Les Laboratoires Servier and Another v Apotex Inc and Others SC 29-Oct-2014
Ex turpi causa explained
The parties had disputed the validity a patent and the production of infringing preparations. The english patent had failed and damages were to be awarded, but a Canadian patent remained the defendant now challenged the calculation of damages for . .
Cited – Abrath v North Eastern Railway Company CA 22-Jun-1883
A claim was brought against the company for malicious prosecution. The jury acquitted it. And the plaintiff appealed.
Held: The judge’s direction had been correct.
Bowen LJ said: ‘Wherever a person asserts affirmatively as part of his . .
Cited – JC Houghton and Co v Northard, Lowe and Wills HL 1927
The court was asked whether the knowledge of the directors of the latter company should be attributed to it, with the effect that the latter company could and should be treated as estopped from denying that it had consented to a particular . .
Cited – Regina v ICR Haulage Ltd KBD 1944
A company can be guilty of conspiracy, in this case to defraud. Both the managing director and, through him, the haulage company were convicted of conspiracy to defraud. His acts ‘were the acts of the company and the fraud of that person was the . .
Cited – Moore v I Bresler Ltd KBD 1944
The company had been required to make a return for revenue purposes (purchase tax) and the statute made it an offence to make a false return with intent to deceive. The company was charged with such, but responded that the action was of employees . . .
Cited – Director of Public Prosecutions v Kent and Sussex Contractors Ltd 1945
The court considered the liability of a company under provisions being, ‘with intent to deceive, made use . . of a document which was false in a material particular’
Held: The General Manager was capable of acting or speaking as the company; . .
Cited – Belmont Finance Corporation Ltd v Williams Furniture Ltd CA 1979
The company directors operated an elaborate scheme to extract value from Belmont by causing it to buy the shares of a company called Maximum at a considerable overvalue. This was a breach of the fiduciary duties of the directors. They sought to . .
Cited – Re Hampshire Land Company 9-Jul-1896
A company had borrowed from a building society. The borrowing was not properly authorised by resolution of the shareholders in general meeting The court was asked whether whether the knowledge of the company secretary common to both the company and . .
Cited – Lloyd v Grace, Smith and Co HL 1912
Mrs Lloyd delivered the title deeds of her cottages at Ellesmere Port to the solicitors’ managing clerk, who defrauded her.
Held: Vicarious liability can extend to fraudulent acts or omissions if those were carried out in the course of the . .
Cited – Tesco Supermarkets Ltd v Nattrass HL 31-Mar-1971
Identification of Company’s Directing Mind
In a prosecution under the 1968 Act, the court discussed how to identify the directing mind and will of a company, and whether employees remained liable when proper instructions had been given to those in charge of a local store.
Held: ‘In the . .
Cited – Ashmore, Benson, Pease and Co v A V Dawson Ltd CA 1973
By acquiescing in the unlawful overloading of the hauliers’ lorries, the consignors’ assistant transport manager and his assistant made the haulage contract unenforceable at the instance of the consignors, who were unable to recover when a lorry . .
Cited – Attorney-General’s Reference (No. 2 of 1982) CACD 1984
Two men were charged with theft from a company which they wholly owned and controlled. The court considered the actions of company directors in dishonestly appropriating the property of the company, and whether since the title to the goods was . .
Cited – Royal Brunei Airlines SDN BHD v Tan PC 24-May-1995
(Brunei) The defendants were a one-man company, BLT, and the one man, Mr Tan. A dishonest third party to a breach of trust was liable to make good a resulting loss even though he had received no trust property. The test of knowledge was an objective . .
Cited – Lancashire County Council v Municipal Mutual Insurance Ltd CA 3-Apr-1996
The defendant agreed to indemnify the insured ‘in respect of all sums which the insured shall become legally liable to pay as compensation arising out of’ various matters including wrongful arrest, malicious prosecution and false imprisonment. The . .
Cited – Lister and Others v Hesley Hall Ltd HL 3-May-2001
A school board employed staff to manage a residential school for vulnerable children. The staff committed sexual abuse of the children. The school denied vicarious liability for the acts of the teachers.
Held: ‘Vicarious liability is legal . .
Cited – Safeway Stores Ltd and Others v Twigger and Others CA 21-Dec-2010
The court was asked whether, when a company had been fined for anti-competitive practices, the company could then recover the penalties from the directors and senior employees involved.
Held: The undertaking was not entitled to recover the . .
Cited – Aberdeen Railway Co v Blaikie Brothers HL 1854
The plaintiff needed a large quantity of iron chairs (rail sockets) and contracted for their supply over an 18-month period with Blaikie Bros a partnership. Thomas Blaikie was the managing partner of Blaikie Bros and a director and the chairman of . .
Cited – Salomon v A Salomon and Company Ltd HL 16-Nov-1896
A Company and its Directors are not same paersons
Mr Salomon had incorporated his long standing personal business of shoe manufacture into a limited company. He held nearly all the shares, and had received debentures on the transfer into the company of his former business. The business failed, and . .
Cited – Brink’s Mat Ltd v Noye CA 1991
The proceeds of the theft of gold bullion from a warehouse owned by the plaintiffs were laundered through the bank account of a company called Scadlynn Ltd with Barclays Bank. The directors and sole shareholders of Scadlynn were signatories of the . .
Cited – Director of Public Prosecutions v Gomez HL 3-Dec-1992
The defendant worked as a shop assistant. He had persuaded the manager to accept in payment for goods, two cheques which he knew to be stolen. The CA had decided that since the ownership of the goods was transferred on the sale, no appropriation of . .
Cited – Hall v Hebert 29-Apr-1993
(Canadian Supreme Court) After they had been drinking heavily together, Mr Hebert, who owned a muscle car, allowed Mr Hall to drive it, including initially to give it a rolling start down a road on one side of which there was a steep slope. The car . .
Cited – South Australia Asset Management Corporation v York Montague Ltd etc HL 24-Jun-1996
Limits of Damages for Negligent Valuations
Damages for negligent valuations are limited to the foreseeable consequences of advice, and do not include losses arising from a general fall in values. Valuation is seldom an exact science, and within a band of figures valuers may differ without . .
Cited – Marks and Spencer Plc v Palmer CA 9-Oct-2001
The claimant had tripped against a weather strip which protruded by less than 1 cm above the surface of doorway of the staff exit from one of the defendant’s stores. It was a permanent fixture and, as such, was part of the construction of the floor. . .
Cited – Marks and Spencer plc v Palmer CA 9-Oct-2001
A shopper carrying some heavy bags tripped and fell over a weather strip, which was proud of the floor at an exit door to the extent of some 8 to 9.5 mm high. The recorder had said that, once he was satisfied that the claimant came into contact with . .
Cited – Gray v Thames Trains and Others HL 17-Jun-2009
The claimant suffered psychiatric injury in a rail crash caused by the defendant’s negligence. Under this condition of Post-Traumatic Stress Disorder, the claimant had later gone on to kill another person, and he had been detained under section 41. . .
Cited – Ralph Schmid (Acting As Liquidator of The Assets of Aletta Zimmermann) v Lilly Hertel ECJ 16-Jan-2014
ECJ Reference for a preliminary ruling – Judicial cooperation in civil matters – Regulation (EC) No 1346/2000 – Insolvency proceedings – Action to set a transaction aside by virtue of the debtor’s insolvency – . .

Cited by:

Cited – Burnden Holdings (UK) Ltd v Fielding and Another CA 17-Jun-2016
The company, now in liquidation sought to claim for the alledged misapplication by former directors of its funds in 2007. It now appealed against a summary rejection of its claim as time barred.
Held: The appeal succeeded. Section 21(1)(b) . .
Cited – Royal Mail Group Ltd v Jhuti SC 27-Nov-2019
‘if a person in the hierarchy of responsibility above the employee determines that she (or he) should be dismissed for a reason but hides it behind an invented reason which the decision-maker adopts, the reason for the dismissal is the hidden reason . .
Cited – Singularis Holdings Ltd v Daiwa Capital Markets Europe Ltd SC 30-Oct-2019
The Court was asked whether a claim against a bank for breach of the Quincecare duty is defeated if the customer is a company, and the fraudulent payment instructions are given by the company’s Chairman and sole shareholder who is the dominating . .
Cited – Patel v Mirza SC 20-Jul-2016
The claimant advanced funds to the respondent for him to invest in a bank of which the claimant had insider knowledge. In fact the defendant did not invest the funds, the knowledge was incorrect. The defendant however did not return the sums . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Torts – Other, Limitation

Leading Case

Updated: 02 May 2022; Ref: scu.545696

Lord Advocate v Young: 1887

Lord Watson said: ‘It is, in my opinion, practically impossible to lay down any precise rule in regard to the character and amount of possession necessary in order to give a riparian proprietor a prescriptive right to foreshore. Each case must depend on its own circumstances. The beneficial enjoyment of which the foreshore admits, consistently with the rights of navigators and of the general public, is an exceedingly variable quantity . . .. In estimating the character and extent of his possession it must always be kept in view that possession of the foreshore, in its natural state, can never be, in the strictest sense of the term, exclusive. The proprietor cannot exclude the public from it at any time; and it is practically impossible to prevent occasional encroachments on his right, because the cost of preventive measures would be altogether disproportionate to the value of the subject.’

Judges:

Lord Watson, Lord Halsbury, Lord MacNaghten, Lord Fitzgerald (dubitante)

Citations:

(1887) 12 App Cas 544

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: 01 May 2022; Ref: scu.267374

Richardson v Younger: 1871

When there are two joint claimants to possessory title, and it is said that they had acknowledged the paper owner’s title, the acknowledgment must be given by or on behalf of both of them.

Citations:

(1871) 6 Ch App 478

Jurisdiction:

England and Wales

Cited by:

Cited – Allen v Matthews CA 13-Mar-2007
The defendants appealed an order refusing title by adverse possession to registered land. They denied that the limitation period had been restarted by their solicitor’s letter acknowledging the title.
Held: The letter must be read as a whole. . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 01 May 2022; Ref: scu.250005

Re Yates (A Bankrupt): 2004

The court considered the application of the limitation to a claim by a trustee in bankruptcy to set aside a transaction at an undervalue.
Held: Charles J: ‘If there is a limitation period, the passages in Muir Hunter suggest that in the case of a claim by a trustee in bankruptcy begins to run from the date of the bankruptcy order. Counsel for the trustee made the same submission on the basis that that is the date when the cause of action accrued to the trustee. I agree.’

Judges:

Charles J

Citations:

[2004] All ER (D) 373, [2005] BIPR 476

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 . .
Cited – Stonham v Ramrattan and Another CA 16-Feb-2011
The bankrupt, while solvent had acquired a property which was first put in his own sole name, but then transferred to his wife outwardly ‘in consideration of love and affection’. Several years later, on the bankruptcy, the trustee sought to have the . .
Lists of cited by and citing cases may be incomplete.

Limitation, Insolvency

Updated: 01 May 2022; Ref: scu.244185

Kirschbaum v ‘Our Voices’ Publishing Co: 1971

(Ontario High Court) The court was asked whether discovery of letters written without prejudice should be permitted so that the parties might explore the question whether they contained admissions of fact which could be taken into account at the trial.
Held: They should. Contrary to popular belief the proposition that the shibboleth ‘without prejudice’ written on a letter protects it from subsequent use as an admission was not accurate: ‘[T]he question to be considered is, what was the view and intention of the party in making the admission; whether it was to concede a fact hypothetically, in order to effect a settlement, or to declare a fact really to exist.’

Judges:

Haines J

Citations:

[1971] 1 OR 737

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, Contract, Limitation

Updated: 01 May 2022; Ref: scu.243125

The Law Society v Sephton and Co and others: ChD 2004

The Law Society claimed in negligence against the defendant firm of accountants who had wrongly certified the accounts of a firm of solicitors. The Society sought to recover the payments it had made from its compensation fund. The defendant pleaded limitation.
Held: The court ruled against the Society holding that the cause of action had accrued before 16 May 1996 and that Sephton and Co were not estopped from relying upon a limitation defence. A risk, produced by a negligent act or omission, of an adverse condition arising at some time in the future does not constitute damage sufficient to complete a tortious cause of action.

Judges:

Mr Michael Briggs QC

Citations:

[2004] EWHC 544 (Ch)

Statutes:

Limitation Act 1980 2

Jurisdiction:

England and Wales

Cited by:

At First Instance – Law Society v Sephton and Co (a Firm) and Others HL 10-May-2006
A firm of solicitors had a member involved in a substantial fraud. The defendant firm of accountants certified the firm’s accounts. There were later many calls upon the compensation fund operated by the claimants, who sought recovery in turn from . .
Appeal from – 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 – 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 . .
Lists of cited by and citing cases may be incomplete.

Limitation

Updated: 01 May 2022; Ref: scu.241655

Iron Trade Mutual Insurance Co Ltd v J K Buckenham Ltd: 1990

The negligence of the plaintiffs’ insurance brokers led to the insurance policies being voidable for non-disclosure.
Held: The plaintiffs suffered immediate damage on entering into the policies because they did not get the protection they should have had, even though the eventual uninsured losses and the avoidance of the policies were wholly contingent at the time the insurance agreements were made and might never have eventuated.
‘But counsel for the plaintiffs emphasises that this is an application to strike out the plaintiffs’ cause of action. It is well established that one should only do so on the ground that the cause of action is time-barred if it is a clear case. He submits that the question when the plaintiffs possessed sufficient relevant knowledge is a question of fact which is not appropriate to be decided at this stage. I agree. In my view this is a matter which must be investigated at trial. Whether it is done by way of a preliminary issue is a matter which may be decided hereafter.’

Judges:

Rokison QC HHJ

Citations:

[1990] 1 All ER 808

Statutes:

Limitation Act 1980

Jurisdiction:

England and Wales

Cited by:

Cited – First National Comercial Bank plc v Humberts CA 27-Jan-1995
The plaintiff loaned money on the basis of a negligent survey by the defendant. The borrower subsequently defaulted, and the lender issued a writ. The defendant said that the claim was time barred.
Held: The court allowed the plaintiff’s . .
Lists of cited by and citing cases may be incomplete.

Limitation, Litigation Practice

Updated: 01 May 2022; Ref: scu.241657

In re Diplock: CA 1948

S 26 of the Act of 1939 would operate to postpone the running of time in the case of an action at common law to recover money paid under a mistake of fact, and would likewise apply to an analogous claim in equity to recover money paid under a mistake of law.
Lord Greene MR said: ‘It is to be observed that neither Lord Parker nor Lord Haldane [in Sinclair v Brougham [1914] AC 398] suggests that the equitable remedy extends to cover all cases where A becomes possessed of money belonging to B, a view which Lord Dunedin [in the same case] seemed inclined to accept if he did not actually do so. Lord Parker and Lord Haldane both predicate the existence of a right of property recognized by equity which depends upon there having existed at some stage a fiduciary relationship of some kind (though not necessarily a positive duty of trusteeship) sufficient to give rise to the equitable right of property. Exactly what relationships are sufficient to bring such an equitable right into existence for the purposes of the rule which we are considering is a matter which has not been precisely laid down. Certain relationships are clearly included, eg, trustee (actual or constructive) and cestui que trust; and ‘fiduciary’ relationships such as that of principal and agent.’

Judges:

Lord Greene MR

Citations:

[1948] Ch 465

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 – Scott v Bridge and Others ChD 25-Nov-2020
Claim to recover money and property said to have been transferred by the claimant to the defendants or one or more of them. The money concerned came from a bank account belonging to the claimant. The property concerned consisted of two . .
Lists of cited by and citing cases may be incomplete.

Limitation, Trusts

Updated: 01 May 2022; Ref: scu.236539

Anglo-Manx Group Ltd v Aitken: 2002

The court discussed the case of Cottrell v Price: ‘There was considerable argument before me as to what is meant by the words ‘in the bankruptcy’ as distinct from the words ‘outside the bankruptcy’. Mr Adair submitted that the question can be formulated in this way. Is the claim being directed at property within the statutory trust, or does it relate to property outside of the trust: for example, after-acquired property, or property which cannot form part of the estate. It seems to me that this is the correct formulation and is consistent with the analysis of Buckley J in Cottrell -v- Price.’

Judges:

John Jarvis QC

Citations:

[2002] BPIR 215

Citing:

Cited – Cottrell v Price 1960
The rights of a secured creditor against his security were held to be rights ‘outside the bankruptcy’. As to the case of Benzon: ‘The importance of that case and of the way in which the doctrine is stated in the judgment of the Court is that it . .

Cited by:

Cited – Doodes v Gotham, Perry ChD 17-Nov-2005
The trustee in bankruptcy had taken a charge on the property in 1992 to support the bankruptcy in 1988. He sought to enforce it in 2005. The chargor appealed an order which denied he was protected by limitation.
Held: The appeal succeeded. . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Limitation

Updated: 30 April 2022; Ref: scu.235333

Radcliffe v Bartholomew: 1892

The day on which an accident happened should be excluded from calculation for limitation purposes.

Citations:

[1892] 1 QB 161, [1891-94] All ER Rep 829

Cited by:

Applied – Marren v Dawson Bentley and Co Ltd 1961
Compensation was sought for injuries received in the course of employment.
Held: The limitation period was to be calculated to have started on the day after the occurrence which founded the claim, the day itself being excluded from the . .
Cited – Pritam Kaur v S Russell and Sons Ltd QBD 1-Jun-1972
The plaintiff sought damages following the death of her husband when working for the defendants. He had died on 5 September 1967 but the writ was not issued until Monday 7 September 1970. The applicable limitation period was 3 years, which the . .
Lists of cited by and citing cases may be incomplete.

Limitation

Updated: 30 April 2022; Ref: scu.231059

In re Ingleton Charity: 1956

The effect of section 2 of the 1841 Act is that if a reverter occurred but the trustees of the school remain in possession for 12 years, the title by reverter will usually become statute-barred.

Citations:

[1956 ] Ch 585

Statutes:

School Sites Act 1841 2

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

Land, Limitation

Updated: 30 April 2022; Ref: scu.231635

Astro AMO Compania Naviera SA v Elf Union SA and First National Bank, ‘The Zographia M’: 1976

Ackner J said: ‘I am not persuaded that the obligation to pay in advance of a certain date which must mean before a certain date, means after that date where there is some practical difficulty, such as a bank being closed, which prevents payment being made on the very last day before that date.’

Judges:

Ackner J

Citations:

[1976] 2 Lloyd’s Rep 382

Cited by:

Cited – The Clifford Maersk QBD 25-May-1982
The defendants contracted to carry a cargo for the plaintiff. The plaintiffs asserted that it was delivered in a damaged condition. The Act required an action to be brought within one year. The defendants granted extensions of time until at last ‘up . .
Lists of cited by and citing cases may be incomplete.

Limitation

Updated: 30 April 2022; Ref: scu.231057

Harkness v Bell’s Asbestos and Engineering Limited: CA 1966

The plaintiff’s solicitors had applied to a district registrar for leave of the court for the purposes of the Limitation Act 1963 when they ought to have made the application to a judge in chambers. The district registrar ordered that Section 2(1) of the Limitation Act 1939 should not afford a defence to the proposed action for damages, and a writ was duly issued. A judge in chambers held that this order was a nullity, and made no order. A different judge in chambers dismissed an application to rectify the order and have it treated as valid.
Held: The appeal succeeded. The court considered the different ways in which objection could be taken to proceedings according to whether the source of the objection was that it was a nullity or an irregularity.
Diplock LJ said: ‘Thomas William Harkness, retired boiler-lagger, if he had followed, as I have no doubt he has, the intricacies of the interlocutory proceedings in the case, must have thought that `the law is an ass’. I am not sure that this judgment will change his opinion, but at any rate he will not feel it is such an unjust ass as he must have felt before. It was to remedy just this kind of injustice that the new RSC Ord 2 r 1 was made.’
Lord Denning MR said that the new rule should be construed widely and generously to give effect to its manifest intentions: ‘This new rule does away with the old distinction between nullities and irregularities. Every omission or mistake in practice or procedure is henceforward to be regarded as an irregularity which the court can and should rectify so long as it can do so without injustice. It can at last be asserted that ‘it is not possible for an honest litigant in Her Majesty’s Supreme Court to be defeated by any mere technicality, any slip, any mistaken step in his litigation.”
and ‘I think that any application to the court, however informal, is a ‘proceeding’. There were ‘proceedings’ in being at the very moment that the plaintiff made his affidavit and his solicitor lodged it with the court.’

Judges:

Lord Denning MR, Diplock LJ, Russell LJ

Citations:

[1967] 2 QB 729, [1966] 3 All ER 843

Statutes:

Rules of the Supreme Court Ord2 R2, Limitation Act 1963 2(1)

Jurisdiction:

England and Wales

Citing:

Cited – Pontin v Wood CA 1962
The writ had been issued just before the expiration of the relevant limitation period in a defective form in that it was endorsed merely with the words ‘the plaintiffs’ claim is for damages for personal injuries’. The judge in chambers held that the . .

Cited by:

Cited – Johnson, Regina (on the Application Of) v Attorney General Admn 29-Jun-2005
. .
Cited – Hannigan v Hannigan CA 18-May-2000
The widow appealed against strike out of her claim under the 1975 Act. It had been filed with several mistakes and only just in time.
Held: Her appeal succeeded. Though the defects were real and to be deplored, the paperwork contained all the . .
Cited – Charlesworth and Others v Focusmulti Ltd and Others CA 15-Mar-1993
Judgment had been entered by the plaintiff in default of defence, but before the time limit for filing a defence had expired. Such a judgment was fatally flawed, and could not be cured. The judgment had to be set aside without any consideration of . .
Cited – Faircharm Investments Ltd v Citibank International Plc CA 6-Feb-1998
An irregular judgment had been entered. A claim was made after the proceeds of a life policy secured under a mortgage had been wrongly paid out after the mortgage was redeemed by a third party.
Held: The appeal was dismissed. The so-called . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Limitation

Updated: 30 April 2022; Ref: scu.230927

In re River Steamer Company: 1871

A without prejudice letter was written by a person claiming adverse possession of land to the paper owner offering to purchase the land. The paper owner said this was an acknowledgment of his title.
Held: The letter was written in the context of a dispute which had advanced to the point of an arbitrator having been appointed, and ‘a letter which is stated to be without prejudice cannot be relied on to take a case out of the Statute of Limitations, for it cannot do so unless it can be relied upon as a new contract.’ (Mellish LJ)

Judges:

Mellish LJ

Citations:

(1871) LR 6 Ch App 822

Jurisdiction:

England and Wales

Cited by:

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

Land, Limitation

Updated: 30 April 2022; Ref: scu.228934

Whitehouse v Fellowes: 12 Feb 1861

The trustees of a turnpike road converted an open ditch by the side of the road into a covered drain but did so negligently, and the catch pits were constructed and kept, so that the drain was at times of heavy rain insufficient to carry off the water to its accustomed channel and was diverted onto other land causing damage. The issue was whether time began to run against a plaintiff from the date of the original construction of the works.
Held:’the continuance by the defendants of that negligent and improper condition of the road under their charge, if accompanied by fresh damage to the plaintiff, constitutes a new cause of action’. And ‘Suppose an action to have been commenced immediately after the first injury accrued to the plaintiff’s pits from the flow of water down the road in question: when that cause came to be tried, the only question would be how much damage the plaintiff had actually sustained. It would be monstrous injustice to hold that the damages must be assessed upon that assumption. All that the jury could do would be to find what damages the plaintiff had sustained from the wrongful act complained of: and they would be told to give him such damages as they might find he has sustained down to the time of the commencement of the action. According to the assumption, the plaintiff has sustained damage from the wrongful construction of the nuisance. Did the statute intend that he should have no remedy for that? The true answer to this objection, as it seems to me, is, that no fresh cause of action arises from each fresh damage, but that, where there is not only a fresh damage but a continuance of the cause of damage, such continuance of the wrongful act which caused the damage constitutes a fresh cause of action.’
Byles J said: ‘There would be a new and distinct injury every time a storm came; and this declaration is in form a declaration for a continuation of a nuisance.’
Keating J stated:
‘Here is a continuation of the nuisance, and a new distinct and complete cause of action in respect thereof, for which I think the plaintiff had a right to sue.’

Judges:

Williams J, Byles J

Citations:

(1861) 10 CB (NS) 765, [1861] EngR 314, (1861) 10 CB NS 765, (1861) 142 ER 654

Links:

Commonlii

Nuisance, Limitation

Updated: 30 April 2022; Ref: scu.219082

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 the claim has not become apparent in sufficient time to enable proceedings to be begun within three years from the inception of such injury or disease.’: ‘The committee did not, however, confine itself to ‘diseases,’ but to all ‘slow manifestation’ cases, thus embracing cases where a definite accident known to have occurred leads years later to wholly unsuspected consequences. Its report concluded: ‘that the law ought to be amended so that, in personal injury cases, a plaintiff should not be defeated by the expiry of the limitation period, if he satisfies the court that:
(a) the first occasion on which he discovered or could reasonably have been expected to discover the existence of his injury, or the cause to which it was attributable, was such that it was not reasonably practicable for him to start proceedings in time; and (b) he has in fact started proceedings within a certain period (which we consider should be 12 months) after such occasion.”

Judges:

Edmund-Davies LJ

Citations:

[1972] 1 QB 244, [1971] 3 All ER 204

Jurisdiction:

England and Wales

Citing:

Applied – Newton v Cammell Laird and Co (Shipbuilders and Engineers) Ltd CA 1969
The court considered when the limitation period in a personal injury claim would start to run, where the plaintiff might be unaware of the damage: ‘You have to ask yourself: At what date was it reasonable for him – for the sick man himself – to have . .

Cited by:

Appeal from – 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) . .
Cited – Adams v Bracknell Forest Borough Council HL 17-Jun-2004
A attended the defendant’s schools between 1977 and 1988. He had always experienced difficulties with reading and writing and as an adult found those difficulties to be an impediment in his employment. He believed them to be the cause of the . .
Lists of cited by and citing cases may be incomplete.

Limitation, Personal Injury

Updated: 30 April 2022; Ref: scu.200435

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 contend that the section should be construed or applied not only strictly but, in the interest of public policy, restrictively. So far as construction is concerned, the words of the section are clear and unambiguous. It is impossible to construe the word ‘equitable’ narrowly or liberally. It is either equitable or inequitable to disapply the fixed time limit in any given set of circumstances, although different people may have different views of what is equitable in particular cases. The appellants argued that section 2D should be confined to ‘exceptional cases’. That is precisely what the Act provides, since every case in which the court decides that the application of the norm would be inequitable is, ex hypothesi, an exceptional case’.
Lord Denning MR discussed the new statutory discretion given by the 1975 Act, and said: ‘The granting of this discretion is a revolutionary step . . The value of this wide discretion is well shown by the present series of cases. They all arise out of circumstances which the various committees never had in mind at all. In each of the three cases there were negotiations for a settlement, but the plaintiff’s solicitors, by the merest slip, allowed time to run out. They failed to renew the writ in time. This slip did not prejudice the defendant or his insurers in the least. Yet as soon as the insurers discovered it, they cried ‘snap’ and broke off the negotiations. They said to the plaintiff: ‘You are statute-barred. We are not liable. You sue your own solicitors for negligence. Make their insurers pay. And not us.’ All of the judges rejected this submission. Each of the judges exercised his discretion in favour of the plaintiff. I think they were quite right. As a matter of simple justice, it is the defendant’s insurers who should pay the plaintiff’s claim. They have received the premium to cover the risk of these accidents. They should not be allowed to foist their liability on to the plaintiff’s solicitors or their insurers by calling ‘snap’ as if it were a game of cards.’

Judges:

Denning MR, Ormrod LJJ

Citations:

[1978] 3 WLR 1, [1978] 2 All ER 851, [1978] QB 886

Statutes:

Limitation Act 1939 2D, Limitation Act 1975

Jurisdiction:

England and Wales

Cited by:

Cited – Walkley v Precision Forgings Ltd HL 1979
The plaintiff tried to bring a second action in respect of an industrial injury claim outside the limitation period so as to overcome the likelihood that his first action, although timeous, would be dismissed for want of prosecution.
Held: He . .
Cited – 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 – 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.

Limitation

Updated: 30 April 2022; Ref: scu.200282

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 December 1977 to say that the matter was in the hands of his insurers. The insurers stated that they knew nothing of the claim until a letter in May 1980.

Citations:

1983 SLT 441

Citing:

Applied – 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 . .

Cited by:

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

Scotland, Limitation

Updated: 30 April 2022; Ref: scu.200276

Clark v McLean: IHCS 1994

A female pursuer was involved in a road traffic accident caused by her boyfriend. She brought an action against him one year after the expiry of the triennium (which had begun to run when she reached the age of 18 in 1984). An action of damages which she had raised against her former solicitors for professional negligence had been sisted pending the outcome of the action against her boyfriend. The Temporary Lord Ordinary, on being moved to allow the action to be brought under section 19A, allowed a proof before answer, leaving all pleas standing.
Held: ‘The onus being on the pursuer to satisfy the court that the terms of section 19A(1) should be applied, the court must first determine whether the pursuer’s case in relation to the application of that section is relevant. If the case is relevant, the court must consider whether or not there is sufficient agreement between the parties on the material facts for it to decide upon the applicability of the section. If there is not, then … the court should allow a preliminary proof on these facts. If, on the other hand, there is sufficient agreement on the material facts, then the court must proceed to adjudicate upon the application of section 19A(1). In our view, it should seldom be necessary for the court, in an action of damages for personal injuries involving only two parties, to allow a proof with all pleas standing, including those relating to the question of time bar and those relating to the merits of the action.’

Judges:

Lord MacLean

Citations:

1994 SC 410

Cited by:

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

Scotland, Limitation, Equity

Updated: 30 April 2022; Ref: scu.200281

Munro v Anderson-Grice Engineering Co Ltd: 1983

An action was raised in 1980 for damages for vibration white finger in which exposure had ceased in 1973. In early 1974 the pursuer had been advised by his solicitors that a claim against the defenders was unlikely to succeed. The pursuer argued that he had acted reasonably by accepting the advice of his solicitor in 1974 and that it was equitable to allow the action to proceed. The defenders argued that there was no explanation why, having decided not to proceed in 1974, the pursuer had raised the action in 1980.
Held: The court refused to exercise his discretion in favour of allowing the pursuer to bring the action out of time: ‘In my opinion however it does not follow that because at some stage within the triennium a pursuer has taken a reasonable course of action which results in a failure to raise an action timeously, that it must be considered equitable to allow him to proceed with an action after the expiry of the three year limitation period. … No doubt the reasonableness of the pursuer’s actings will have a bearing on the equities, but for the latter to be properly considered by the court circumstances beyond those averred by the pursuer in this case are required’.

Judges:

Lord Grieve

Citations:

1983 SLT 295

Cited by:

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

Scotland, Personal Injury, Limitation

Updated: 30 April 2022; Ref: scu.200275

The Jay Bola: 1992

A writ was issued against defendants ‘O’ who had been owners of the Jay Bola, just prior to the expiry of the one year time bar under the Hague Rules. The judge laid emphasis on the fact that Article 6 III r.6 discharged from all liability unless suit was brought within a year. ‘O’ had in fact sold the ship to ‘AS’, and after the expiry of the time bar, the plaintiffs sought leave to correct the name under Ord.20 r.5(3).
Held: Ord.20 r.5 had been in similar terms since 1964, and there were decisions showing that amendments granted under the rule did relate back, but those cases were concerned with ‘procedural time bars’ under the Limitation Acts. Since the passing of the Limitation Act 1980, in particular by section 35, some power to relate back was derived from that section, but only in relation to time limits imposed by the Limitation Acts. The only relation back in respect of an amendment of proceedings to add another party after the limitation proceedings, that was available was that allowed by the rules made to give effect to section 35 of the 1980 Act.

Judges:

Hobhouse J

Citations:

[1992] 1 QB 907

Statutes:

Limitation Act 1980 30

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

Limitation, Litigation Practice

Updated: 30 April 2022; Ref: scu.200227

Fearnside v Flint: 1882

The court rejected the contention that the limitation period was 20 years for a case of an action on a collateral bond. The sum secured by a mortgage on land and also secured by a covenant in the deed is one and the same sum ‘so that when the right of suit or action in respect of the land is gone, the right on the covenant ceases also’.

Judges:

Fry J

Citations:

(1882) 22 Ch D 57

Cited by:

Cited – Wilkinson and Another v West Bromwich Building Society CA 30-Jul-2004
The Society had repossessed and sold the mortgagors’ house in 1990. It knew then that there was a shortfall, but took no further recovery proceedings until 2002. What was the date from which the relevant limitation period began to run? Though the . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 30 April 2022; Ref: scu.199715

Sutton v Sutton: 1882

A mortgage deed contained an express covenant to repay on demand the amount advanced. The principal sum and interest were secured by a mortgage of real property. A demand for payment was made, but not satisfied. An action was brought on the covenant (not on a simple contract debt) for the sum due under the covenant. No attempt had been made to enforce the lender’s security rights against the land charged. The defendant successfully pleaded limitation. More than 12 years had passed since any payment had been made under the deed. The court rejected the contention that the period for recovery under an action at law on the personal covenant was 20 years, that being the period still allowed by the 1833 Act for actions on a specialty. Subject to questions of payment and acknowledgement of the debt, the reduced 12 year period in s8 of the 1874 Act embraced both the personal remedy on the covenant against the mortgagor and the proprietary remedy against the land, on which the debt is secured, so that, if the remedy in respect of the land itself was barred, so also was the right of action on the covenant. The specific limitation provisions relating to mortgages take precedence over the general provisions relating to specialties.

Judges:

Sir George Jessel MR and Bowen LJ

Citations:

(1882) 22 Ch D 511

Statutes:

Real Property Limitation Act 1874 8, Civil Procedure Act 1833

Cited by:

Cited – Wilkinson and Another v West Bromwich Building Society CA 30-Jul-2004
The Society had repossessed and sold the mortgagors’ house in 1990. It knew then that there was a shortfall, but took no further recovery proceedings until 2002. What was the date from which the relevant limitation period began to run? Though the . .
Cited – Bristol and West plc v Bartlett and Another; Paragon Finance plc v Banks; Halifax plc v Grant CA 31-Jul-2002
The defendants resisted claims by lenders for the payment of mortgage debts. In each case the lender had exercised the power of sale before issuing proceedings for possession. The defendants queried the limitation period applicable.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Limitation, Land

Updated: 30 April 2022; Ref: scu.199714

Bell v Peter Browne and Co: CA 1990

Mr Bell asked his solicitors to transfer the matrimonial home into his wife’s sole name. He was to receive a one-sixth interest of the gross proceeds on a sale. His interests were to be protected by a trust deed or mortgage. The solicitor drafted the documents and the transaction was completed; but no declaration of trust or mortgage was prepared or executed. The house was eventually sold and the wife spent all the proceeds. More than six years after the transfer of the house to the wife, the plaintiff started proceedings against the solicitors.
Held: He suffered damage when he transferred title, rather than the later date at which his wife sold the house and dissipated the proceeds.
Nicholls LJ said: ‘Due to the defendants’ negligence, the plaintiff parted with his legal estate in the property conveyed to his wife in exchange for an equitable interest in the proceeds of sale. That equitable interest until secured by a charge or acknowledged by a deed of trust was clearly less valuable to the plaintiff. Unprotected against the interests of third parties by registration of a charge or of a caution, it was less valuable still. I consider therefore that the plaintiff’s cause of action arose when he parted with his property or at the latest at the time when the careful solicitor would have affected registration either of a charge or of a caution.’ and ‘the question of damage and the limitation period in negligence claims has been a troublesome one for some years’ His cause of action in negligence accrued when the transfer was executed without the protection of the plaintiff’s interest in the house or its proceeds of sale. The damage, such as it may have been, was sustained when the transfer was executed and handed over. At that point the plaintiff parted with title to the house, and he became subject to the practical inconveniences which might flow from his not having his wife’s signature on a formal document.

Judges:

Nicholls LJ

Citations:

[1990] 2 QB 495

Jurisdiction:

England and Wales

Citing:

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

Cited by:

Cited – Daniels v Thompson CA 18-Mar-2004
The executor brought an action against the solicitor who had advised his client in connection with the transfer of her house in which she was to continue to live, saying he should have advised her that the gift would not protect her from Inheritance . .
Cited – Green and Another v Alexander Johnson (A Firm) and Another ChD 26-May-2004
The judgment related to the assessment of damages for professional negligence by the defendants. The court deprecated the practice of separating off assessments of damages from the principal claim, since this created a risk of confusion. The . .
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 – Law Society v Sephton and Co (a Firm) and Others HL 10-May-2006
A firm of solicitors had a member involved in a substantial fraud. The defendant firm of accountants certified the firm’s accounts. There were later many calls upon the compensation fund operated by the claimants, who sought recovery in turn from . .
Cited – First National Comercial Bank plc v Humberts CA 27-Jan-1995
The plaintiff loaned money on the basis of a negligent survey by the defendant. The borrower subsequently defaulted, and the lender issued a writ. The defendant said that the claim was time barred.
Held: The court allowed the plaintiff’s . .
Cited – Watkins and Another v Jones Maidment Wilson (A Firm) CA 4-Mar-2008
The claimants alleged professional negligence by the defendant solicitors in advising them to agree to a postponment of a completion. The defendants raised as a preliminary issue the question of limitation. The claimant said that the limitation . .
Cited – Pegasus Management Holdings Sca and Another v Ernst and Young (A Firm) and Another ChD 11-Nov-2008
The claimants alleged professional negligence in advice given by the defendant on a share purchase, saying that it should have been structured to reduce Capital Gains Tax. The defendants denied negligence and said the claim was statute barred.
Cited – Axa Insurance Ltd v Akther and Darby Solicitors and Others CA 12-Nov-2009
The court considered the application of the limitation period to answering when damage occurred when it arises under an unsecured contingent liability. The claimant insurance company had provided after the event litigation insurance policies to the . .
Cited – Bowling and Co Solicitors v Edehomo ChD 2-Mar-2011
The court was asked ‘when an innocent vendor whose signature is forged on the documents for the conveyance of land suffers damage, for the purposes of limitation of an action arising from a solicitor’s breach of duty. Is it on the exchange of . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Limitation

Updated: 29 April 2022; Ref: scu.196070

Applegate v Moss; Archer v Moss: CA 1971

The defendant built a house under a contract specifying the design. Contrary to the design no concrete raft foundation was installed. This was discovered only eight years later, and eventually the house was condemned.
Held: The claim was not statute barred. The cause of action arose only at the point where the defect became known or reasonably could have become known to the claimant.

Citations:

[1971] 1 All ER 747

Jurisdiction:

England and Wales

Contract, Limitation

Updated: 29 April 2022; Ref: scu.194833

Knox v Gye: HL 1872

A court will, by analogy, apply a statutory limitation period if the remedy in equity, specific performance, is ‘correspondent to the remedy at law’ and where ‘the suit in equity corresponds with an action at law’. Lord Westbury said: ‘For where the remedy in Equity is correspondent to the remedy at Law, and the latter is subject to a limit in point of time by the statute of limitations a Court of Equity acts by analogy to the statute, and imposes on the remedy it affords the same limitation . . But if any proceedings in Equity be included within the words of the statute, there a Court of Equity, like a Court of Law, acts in obedience to the statute.’

Judges:

Lord Westbury

Citations:

(1872) LR 5 HL 656

Jurisdiction:

England and Wales

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 . .
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.

Limitation, Equity

Updated: 29 April 2022; Ref: scu.187429