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Limitation - From: 1970 To: 1979

This page lists 35 cases, and was prepared on 02 April 2018.

 
Lucy v W T Henleys Telegraph Works Co Ltd [1970] 1 QB 393
1970


Limitation

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 Holmes v Cowcher; ChD 1970 - [1970] 1 WLR 834

 
 Applegate v Moss; Archer v Moss; CA 1971 - [1971] 1 All ER 747

 
 Smith v Central Asbestos Co Ltd; CA 1971 - [1972] 1 QB 244; [1971] 3 All ER 204

 
 Kirschbaum v 'Our Voices' Publishing Co; 1971 - [1971] 1 OR 737
 
Berliner Industriebank Aktiengesellschaft v Jost [1971] 1 QB 278
1971

Brandon J
Limitation
The distinction "between the right to sue on a judgment (which is a substantive right) and the right to issue execution under it (which is a procedural right or remedy) has always been recognised in the law of limitation."
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Tehidy Minerals Ltd v Norman [1971] 2 QB 528
1971
CA
Buckley LJ
Land, Limitation
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."
Prescription Act 1832
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 Brickfield Properties Ltd v Newton; CA 1971 - [1971] 1 WLR 862; [1971] 3 All ER 328

 
 Knipe v British Railways Board; CA 1972 - [1972] 1 QB 361

 
 Pritam Kaur v S Russell and Sons Ltd; QBD 1-Jun-1972 - [1972] 1 All ER 306; [1973] 1 QB 336; [1973] 2 WLR 147

 
 Pritam Kaur v S Russell and Sons Ltd; CA 2-Jun-1972 - [1973] 1 QB 336; [1973] 1 All ER 617; [1973] 2 WLR 147
 
King v Victor Parsons [1973] 1 WLR 29
1973
CA
Lord Denning MR
Limitation
Lord Denning MR discussed the meaing of 'fraud' in the section: "The word 'fraud' is not used in the common law sense. It is used in the equitable sense to denote conduct by the defendant or its agent such that it would be ´against conscience' for him to avail himself of the lapse of time. The cases show that, if a man knowingly commits a wrong . . ; or a breach of contract . . , in such circumstances that it is unlikely to be found out for many a long day, he cannot rely upon the Statute of Limitations as a bar to the claim: . . In order to show that he 'concealed' the right of action 'by fraud,' it is not necessary to show that he took active steps to conceal his wrong-doing or breach of contract. It is sufficient that he knowingly committed it and did not tell the owner anything about it . . If the defendant was, however, quite unaware that he was committing a wrong or a breach of contract . . then he could avail himself of the Statute of Limitations."
Limitation Act 1939 26(b)
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 Smith v Central Asbestos Co Ltd; Central Asbestos Co Ltd v Dodd; HL 1973 - [1973] AC 518; [1972] 2 All ER 1135; [1972] 3 WLR 333; 13 KIR 75; [1972] 2 Lloyds Rep 413
 
Davis v Whitby [1974] 1 Ch 186
1974
ChD
Lord Denning MR, Stamp LJ
Land, Limitation
The court discussed the need for some system of acquisition of right by user.
Lord Denning MR said: "the long user as of right should by our law be given a lawful origin if that can be done."
Stamp LJ said: "if long enjoyment of a right is shown, the court will strive to uphold the right by presuming that it had a lawful origin."
Law of Property Act 1925 40
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 British Railways Board v G J Holdings Ltd; 1974 - (1974) 230 EG 973
 
Wallis's Cayton Bay Holiday Camp Ltd v Shell-Mex and BP Ltd [1974] 3 WLR 387; [1975] QB 94
10 Jul 1974
CA
Lord Denning MR, Stamp and Ormrod L.JJ.
Land, Limitation
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 disputed land. They farmed the disputed land for several years. The garage was sold to the defendants, but the land remained unidentified, and the plaintiffs continued to farm it. The new road was abandoned, and the defendants tried to sell the disputed land to the plaintiffs. When they sought to fence the land, the action was begun, claiming possessory title, but failed. The plaintiffs appealed. Held: The owners of the disputed land had left it unoccupied for the purposes of eventual use in connection with the proposed new road and there had been no sufficient ouster of the owners so as to create 12 years' adverse possession within the Limitation Act 1939. The appeal failed.
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Smirk v Lyndale Developments Ltd [1975] Ch 321; [1975] 1 All ER 690
1975
ChD
Pennycuick V-C
Land, Limitation, Landlord and Tenant
The court considered the doctrine that a tenant acquiring title to land by adverse possession, did so on behalf of hs landlord. Held: The cases demonstrated that "the law … has got into something of a tangle", but the doctrine, at least as summarised by Parke B, appeared to be "in accordance with justice and common sense". If a tenant occupies land belonging to the landlord but not included in the demise, that land is presumed to be an addition to the land demised to the tenant, so that it becomes subject to the terms of the tenancy and must therefore be given up to the landlord when the tenancy ends. For there to be a surrender of an existing lease by operation of law because of the grant of a new lease,
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 Re Gee and Co (Woolwich) Ltd; 1975 - [1975] Ch 52

 
 Astro AMO Compania Naviera SA v Elf Union SA and First National Bank, 'The Zographia M'; 1976 - [1976] 2 Lloyd's Rep 382
 
Treloar v Nute [1976] 1 WLR 1295
1976
CA
Sir John Pennycuick
Land, Limitation
If the paper owner was at one stage in possession of the land but the squatter's subsequent occupation of it in law constitutes possession the squatter must have "dispossessed" the true owner for the purposes of Schedule 1, paragraph 1. Sir John Pennycuick said: 'if a squatter takes possession of land belonging to another and remains in possession for 12 years to the exclusion of the owner, that represents adverse possession and accordingly at the end of the 12 years the title of the owner is extinguished. That is the plain meaning of the statutory provisions' "
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 Tito v Wadell (No 2); ChD 1977 - [1977] 1 Ch 107

 
 Powell v McFarlane; ChD 1977 - (1977) 38 P&CR 452
 
Twentieth Century Banking Corporation Ltd v Wilkinson [1977] Ch 99
1977
ChD
Templeman J
Land, Limitation
Property was charged in 1973. The principal was be repayable in 1988 with interest. There was no provision by which a default made the power of sale exercisable or the advance repayable. When the borrower defaulted, the mortgagee had to apply to court for an order for sale in lieu of foreclosure under section 91(2) of the 1925 Act. Held: The order was made. As to the proceeds: "The plaintiffs will of course be entitled, having paid the expenses of the sale, to discharge all arrears of interest down to date; that will leave a principal sum outstanding, the principal sum of £19,000. There will remain in the hands of the plaintiffs, after discharging arrears of interest, and if the sale produces only the £18,000 expected, a sum of, say, £15,000. Now, in my mind, as the plaintiffs will have that sum of £15,000 in hand they will be unable to say in future as regards that £15,000 "Payment is not yet due, therefore we can invest it. Interest at the high rate secured by the mortgage will continue to accrue, and we will give credit for the interest produced by investing the money at a rate inevitably less than the mortgage rate." It seems to me that either as a necessary consequence, or as a matter of a condition which I can impose, the plaintiffs must treat any money which is in hand after payment of expenses and interest down to date as being in satisfaction pro tanto of the principal secured by the mortgage, and of all future interest on the principal so satisfied. That seems to me to be fair to both parties and to produce an equitable result."
Law of Property Act 1925 91(2)
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McCafferty v Metropolitan Police Receiver [1977] 1 WLR 1073
1977
CA
Geoffrey Lane LJ, Megaw LJ
Limitation
The test of whether a plaintiff had sufficient knowledge to justify the start of time running against her takes into account her subjective characteristics but then applies an outsiders' view of what she should have thought.
Geoffrey Lane LJ said in relation to section 2A(7): "[I]t is clear that the test is partly a subjective test, namely: "would this plaintiff have considered the injury sufficiently serious?" and partly an objective test, namely: "would he have been reasonable if he did not regard it as sufficiently serious?" It seems to me that the subsection is directed at the nature of the injury as known to the plaintiff at that time. Taking that plaintiff, with that plaintiff's intelligence, would he have been reasonable in considering the injury not sufficiently serious to justify instituting proceedings for damages? I do not consider that it is permissible under this section to look into such problems as whether it would have been politic in the circumstances for the plaintiff to sue his employers at that time for fear of losing his job. Such considerations arise, if at all, under the new section 2D."
Limitation Act 1939 2A 2B 2C 2D
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Surrendra Overseas Ltd v Government of Sri Lanka [1977] 1 WLR 565
1977

Kerr J
Limitation, Contract
A debtor can only be held to have acknowledged the claim if he has in effect admitted his legal liability to pay that which the plaintiff seeks to recover. An acknowledgement of part only of a debt cannot operate to acknowledge more.
Kerr J said: "What I draw from these authorities, and from the ordinary meaning of "acknowledges the claim," is that the debtor must acknowledge his indebtedness and legal liability to pay the claim in question. There is now no need to go further to seek for any implied promise to pay it. That artificiality has been swept away. But, taking the debtor's statement as a whole, as it must be, he can only be held to have acknowledged the claim if he has in effect admitted his legal liability to pay that which the plaintiff seeks to recover. If he has denied liability, whether on the ground of what in pleader's language is called "avoidance", or on the ground of an alleged set off or cross-claim, then his statement does not amount to an acknowledgment of the creditor's claim. Alternatively, if he contends that some existing set off or cross-claim reduces the creditor's claim in part, then the statement, taken as a whole, can only amount to an acknowledgment of indebtedness for the balance. In effect, "acknowledges the claim" means that the statement in question must be an admission of that indebtedness which the plaintiff seeks to recover notwithstanding the expiry of the period of limitation."
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Re A Debtor [1977] Ch 310
1977

HHJ Paul Baker QC
Limitation
Corporate insolvency proceedings based on a statutory demand for monies due under a previous judgment are an "action on a judgment" within s 24 rather than a method of enforcing or executing the judgment. They are barred by s 24 if brought more than six years after the judgment was obtained. S 24(1) of the 1980 Act bars after six years rights of action including proceedings in the form of bankruptcy proceedings, based on an earlier judgment.
Limitation Act 1980 24(1)
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Gray v Wykeham Martin and Goode Unreported, 17 January 1977
17 Jan 1977


Land, Limitation

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 Anns and Others v Merton London Borough Council; HL 12-May-1977 - [1978] AC 728; [1977] CLY 2030; [1977] 2 All ER 492; [1977] UKHL 4
 
Finch v Francis Unreported, 21 July 1977
21 Jul 1977
QBD
Griffiths J
Limitation
Griffiths J considered the situation under which the court might use its discretion to extend a limitation period: "the object of the discretion was to provide for the occasional hard case" and that its application "should be reserved for cases of an unusual nature".
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Walsh v Rother District Council [1978] 1 All ER 510
1978

Donaldson J
Limitation
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".

 
Firman v Ellis [1978] 3 WLR 1; [1978] 2 All ER 851; [1978] QB 886
1978
CA
Denning MR, Ormrod LJJ
Limitation
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."
Limitation Act 1939 2D - Limitation Act 1975
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Walkley v Precision Forgings Ltd [1978] 1 WLR 1228
1978
CA
Megaw LJ, Shaw LJJ, Waller LJ
Personal Injury, Limitation
The plaintiff appealed the strict application of the limitation laws against his claim. He had been injured whilst working as a grinder. He began one claim which lapsed, and began a second claim outside the limitation period, requesting the court to use its discretion to extend the period so as to allow the second action. Held: Even if the first action could and would have been struck out for want of prosecution, Mr Walkley was entitled to seek an extension under section 2D in the second action and it was not possible to conclude on the material before the court that his application was bound to fail. (Waller LJ dissenting in part)
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Jessamine Investment Co v Schwartz [1978] QB 264
1978
CA
Sir John Pennycuick, Stephenson LJ
Landlord and Tenant, Limitation
The tenants Mr and Mrs Levy did not know their landlord Mrs David's address and had no means of paying the rent. Held: They had acquired the title by adverse possession against their mesne landlord (Mrs David) - but that nevertheless their statutory tenancy had continued against the freeholder.
Sir John Pennycuick said that: "I should be very reluctant to introduce a substantive distinction in the application of a provision of the Limitation Act to registered and unregistered land respectively, based upon what is plainly a conveyancing device designed to adapt that provision to the former class of land."
Stephenson LJ said: "Decisions of this court prevent us from deciding that Mrs Schwartz was not, from the receipt of the last payment of rent by Mrs David, 'a person in whose favour the period of limitation can run,' and so not 'in adverse possession' within section 10 (1) of the Act of 1939 . . "

 
Allen and Another v Greenwood and Another
16 Oct 1978
CA
Buckley, Orr and Goff L.JJ
Land, Limitation
cw Easement - Prescription - Right to light - Greenhouse - Claim for sufficient light to cultivate plants - Whether specially high amount of light - Whether right to extraordinary amount of light capable of being acquired by prescription - Whether right is to light for illumination only or capable of including sun's warmth
The claimants greenhouse had been in the same position for over 20 years. They complained about work on the defendant neighbour's land which interfered with the rights of light they had acquired. Held: The Act set the standard for the easement acquired by prescription as the extent required for the use which had been made. The greenhouse required extra light, and that was the extent of the easement acquired.
Prescription Act 1832 3
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Walkley v Precision Forgings Ltd [1979] 1WLR 606; [1979] 2 All ER 548
1979
HL
Wilberforce Lord, Lord Diplock, Viscount Dilhorne, Lord Edmund-Davies and Lord Keith of Kinkel
Personal Injury, Limitation
The plaintiff tried to bring a second action in respect of an industrial injury claim outside the limitation period so as to overcome the likelihood that his first action, although timeous, would be dismissed for want of prosecution. Held: He could not do so. He was not prejudiced by the primary limitation period since he had properly issued his initial claim within it; there was accordingly no discretion to be exercised under section 33 which by subsection (1)(a) postulates that the primary limitation provisions "prejudice the plaintiff". The court may not exercise its power to disapply the ordinary time limit in a personal injury action under section 33 of the Limitation Act where the plaintiff had brought an action before the expiry of that limit and was bringing a second action in which the application under section 33 was being made.
Lord Diplock: "So, to entitle the court to give a direction under [section 33(1)], there must be some prejudice to the plaintiff and the cause of that prejudice must be the requirement under [section 11] that he should start his action before the expiry of the primary limitation period.
My Lords, in my opinion, once a plaintiff has started an action (the first action) within the primary limitation period it is only in the most exceptional circumstances that he would be able to bring himself within section 2D in respect of a second action brought to enforce the same cause of action. If the first action is still in existence, as it was in the instant case when the matter was before the Master or the judge, cadit quaestio; he has not be prevented from starting his action by section 2A or section 2B at all, so the provisions of those sections cannot have caused him any prejudice. Does it make any difference if the first action is no longer in existence at the time of the application under section 2D either because it has been struck out for want of prosecution or because it has been discontinued by the plaintiff of his own volition? In my view, it does not. These are self inflicted wounds. The provisions of section 2A caused him no prejudice at all; he was able to start his action. The only cause of the prejudice to him in the case of dismissal for want of prosecution is dilatoriness which took place after the action was started whether on his own part or on the part of his legal advisors. In the case of discontinuance the only cause of prejudice is his own act.
The only exception I have been able to think of where it might be proper to give a direction under section 2D, despite the fact that the plaintiff had previously started an action within the primary limitation period but had subsequently discontinued it, would be a case in which the plaintiff had been induced to discontinue by a misrepresentation or other improper conduct by the defendant; but there is no suggestion of this in the instant case.
I would allow the appeal upon the ground that Mr Walkley, having previously started an action for the same cause of action within the primary limitation period prescribed by [section 11], cannot bring himself within section 2A at all. Any application by him under that section would fail in limine." and "Despite the use of the phraseology "an action shall not be brought," it is trite law that technically the Limitation Act does not prevent the commencement of an action by the Plaintiff after the limitation period has expired. What it does is to provide the defendant with a cast-iron defence if he chooses to avail himself of it; which he may do either by pleading it or, in a case where the action is in indisputably statute-barred, by taking out a summons to have it dismissed as vexatious. For the sake of brevity, however, I shall speak of the effect of the expiry of a primary limitation period as preventing the starting of the action."
HL Wilberforce L: "My Lords, as a matter of principle I have very great difficulty in understanding how in this case or indeed in any case that I can imagine where an action has been started within the normal limitation period, section 2D can be invoked at all. The section opens with the words:
'(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which- (a) the provisions of section 2A or 2B of this Act prejudice the plaintiff …
The provisions of section 2A are those which require an action for personal injuries to be brought within three years. So subsection (1)(a) must be contemplating a case in which, because the three years have expired without an action being brought, section 2A applies to the prejudice of the plaintiff. But if the plaintiff has brought his action within the three years, how has he been prejudiced by section 2A? This I fail to understand. If this argument is sound, the respondent's case fails in limine. He brought his first action within the normal limitation period, and if he has suffered any prejudice, it is by his own inaction and not by the operation of the Act. However, since the Court of Appeal did not decide the case on this argument, or, it seems, consider it, and since the provision is a new one, understanding of which may have to come with time, I will consider the appeal on the assumption that these initial words may apply to the case."
Viscount Dilhorne: "In my opinion this appeal should be allowed for it cannot be said that it was the provisions of section 2A (that is to say, the imposition of the three year period after which an action such as this cannot be proceeded with without the directions of the court) which prejudiced the respondent when within that period he brought an action for damages for the same personal injuries and in respect of the same cause of action as in his second action. He was prejudiced by his delay in proceeding with the first action and by his discontinuance of that action, not by the provisions of section 2A."
Limitation Act 1963
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