Links: Home | swarblaw - law discussions

swarb.co.uk - law index


These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.  















Limitation - From: 1980 To: 1984

This page lists 25 cases, and was prepared on 02 April 2018.

 
McIntyre v Armitage Shanks Ltd 1980 SC (HL) 46
1980
HL

Scotland, Limitation
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.
1 Citers


 
Simpson v Norwest Holst Southern Ltd [1980] 1 WLR 968
1980
CA

Limitation
The court considered the effect on limitation of a person taking steps to disguise the identity of a potential defendant. Held: Where the employer's identity had been "hidden" under mere reference to a corporate group, the date of knowledge only came when the employee learned his employer's actual name.
Limitation Act 1980
1 Citers


 
Chappell v Cooper [1980] 1 WLR 958
1980
CA
Roskill LJ, Ormrod LJ
Limitation, Negligence
The plaintiff's writ had not been served within the required time, and it had become too late to extend its validity. The plaintiff isued a second writ. The defendant argued limitation. Counsel for the plaintiffs sought to distinguish Walkley on the very narrow ground that there was no question of the first action having being struck out or discontinued. Held: (Roskill LJ) "…I cannot accept the submission that [Walkley] is a decision only on the facts of that case. It seems to me plainly a decision on principle that if a plaintiff starts but then does not for any reason proceed with an action, whether it is because the plaintiff chooses not to serve or his solicitors fail to serve the writ timeously or because the action is subsequently struck out for want of prosecution, or because for good reason or bad the plaintiff or his solicitors give notice of discontinuance, it is not open to the plaintiff thereafter to seek to take advantage of the provisions of section [33] … because as their Lordships have laid down (and we are of course bound by their decision) the cause of his prejudice is not the provisions of section [11], that is to say, the existence of the primary limitation period, but is the act or remission of himself or his solicitors in acting or failing to act as he or they have done in relation to their action."
1 Cites

1 Citers


 
Liff v Peasley [1980] 1 WLR 781; [1980] 1 All ER 623
1980
CA
Brandon LJ, Stephenson LJ
Litigation Practice, Limitation
The court will not add a person as a defendant to an existing action if the claim was already statute-barred and he wished to rely on that defence, and if the court allows such addition ex parte it will not, on objection allow the addition to stand. Where a defendant is added under Ord.15 r.6 there is no relation back so as to treat the added party as a defendant on any date earlier than he was in fact joined. Two reasons are used : 'The first basis is that, if the addition were allowed, it would relate back, so that the action would be deemed to have been begun as against the person added, not on the date of amendment, but on the date of the original writ; that the effect of such relation back would be to deprive the person added of an accrued defence to the claim on the ground that it was statute-barred; and that this would be unjust to that person. I shall refer to this first basis of the rule of practice as the “relation back” theory. The second and alternative basis for the rule is that, where a person is added as defendant in an existing action, the action is only deemed to have been begun as against him on the date of amendment of the writ; that the defence that the claim is statute-barred therefore remains available to him; and that, since such defence affords a complete answer to the claim, it would serve no useful purpose to allow the addition to be made. I shall refer to this second and alternative basis of the rule of practice as the “no useful purpose” theory.' As to which reason was correct, and referring to the rule in Sneade v Wotherton Barytes & Lead Mining Co as to relation back: 'This seems to me to be an entirely sensible proposition so long as the amendment concerned does not involve the addition of a new party, either as plaintiff or defendant, or the raising of a new cause of action, but involves only the modification, by addition, deletion or substitution, of pleas or averments made between existing parties in respect of a cause or causes of action already raised. Where, however, the amendment concerned involves the addition of a new party or the raising of a new cause of action, it appears to me to be unrealistic and contrary to the common sense of the matter to treat it as relating back in the same way.'
1 Cites

1 Citers


 
Dunlop v McGowans [1980] UKHL 17; 1980 SC (HL) 73; 1980 SLT 129
6 Mar 1980
HL
Lord Keith of Kinkel, Viscount Dilhorne, Lord Edmund-Davies, Lord Fraser of Tullybelton
Scotland, Limitation
The landlord of a block of flats needed vacant possession to pursue redevelopment. The respondent solicitors failed to give the necessary notice in good time, delaying the development by a year. The landlord appellant delayed five years before claiming damages, and now appealed against denial of his claim, arguing that section 11 produced in the case of this one breach of duty a series of "appropriate dates" under section 6, each relating only to the "pecuniary loss" which could be demonstrated to have been suffered on or before that date. This was contrasted with only "potential loss," which would not serve to produce a terminus a quo as an appropriate date, albeit it could be made the subject of proceedings and a claim, if the pursuer thought fit, before it ripened into a "pecuniary loss." Although the relevant time could elapse as to some part of the loss or damage suffered, it did not follow that it would have elapsed as to other parts: and in this it is right to say that he was not contending that more than one action could be brought for the same breach of duty. Held: The argument, and the appeal failed. The claimed distinction could not be established: "All is a question of quantification of the harm done by the breach of duty. The loss damage and injury suffered by the pursuer was that arising from the fact that he was unable to obtain vacant possession at Whitsun 1971 and pursue his plans for development, and it occurred then."
Prescription and Limitation (Scotland) Act 1973 11
1 Citers

[ Bailii ]

 
 Port Jackson Stevedoring Pty. Limited v Salmond and Spraggon (Australia) Pty. Limited; PC 10-Jul-1980 - [1981] 1 WLR 138; [1980] UKPC 23; [1980] 3 All ER 257; [1980] 2 Lloyd's Rep 317
 
Spectrum Investment Co Ltd v Holmes [1981] 1 All ER 6; (1980) 41 P & CR 133; [1981] 1 WLR 221
1981
ChD
Browne-Wilkinson J
Registered Land, Limitation
The plaintiff company acquired the registered freehold title of a house in 1957. The house was already demised on a long lease. The leaseholder had sublet to the defendant, who, by continuous non-payment of rent, had, by 1963, acquired a prescriptive title against her. In 1968 the defendant sought registration as proprietor of the leasehold interest and, in the absence of any response from the leaseholder's solicitors to the notice that they received, the Land Registry closed the registration of the latter's title, and opened a new registration of the defendant's title, describing the property as leasehold land held on the terms of the 1902 lease. Seven years later, in 1975, the leaseholder sought to defeat the defendant's title by executing a deed of surrender to the freeholder (a company controlled by her own family). Held: Browne-Wilkinson J said that the device, as it was admitted to be, failed, saying: "To my mind the words of section 75(1) are clear and unequivocal: the squatter claims to have acquired a title to 'a registered estate in the land' (ie the leasehold interest) and applies to be registered as a proprietor 'thereof' (my emphasis). Therefore under section 75(2), references to the squatter having acquired title to a registered estate must include the rights which under the Limitation Act 1939 the squatter acquires in relation to leasehold interests. Section 75(2) then refers to the squatter applying to be registered as proprietor 'thereof'. This word can, in my judgment, only refer back to the registered estate in the land against which the squatter has acquired title under the Act of 1939, ie the leasehold interest. The clear words of the Act therefore seem to require that, once the 12 years have run, the squatter is entitled to be registered as proprietor of the lease itself, and is bound to be so registered if he applies for registration. It follows that in my judgment the defendant (as the squatter) is correctly registered as proprietor of the lease itself in accordance with the clear requirements of section 75. If that is right, … [the leaseholder] cannot be entitled to rectification of the register as against the defendant, and she can therefore never get into a position in which she is competent to surrender the lease to the plaintiff."
Land Registration Act 1925 75


 
 Thompson v Brown Construction (Ebbw Vale) Ltd; HL 1981 - [1981] 1 WLR 744; [1981] 2 All ER 296

 
 Carson v Howard Doris Limited; 1981 - 1981 SC 278

 
 Forster v Outred and Co; CA 1981 - [1982] 1 WLR 86

 
 Hyde v Pearce; CA 18-Nov-1981 - [1982] 1 WLR 560; [1981] EWCA Civ 3

 
 Re Overmark Smith Warden Ltd; ChD 1982 - [1982] 1 WLR 1195
 
Baker v Ollard and Bentley [1982] 126 SJ 593; [1982] CLY 1845; CA Transcript 155 of 1982
12 May 1982
CA
Templeman LJ
Professional Negligence, Limitation
The plaintiff and a Mr and Mrs Bodman agreed to buy a house. The plaintiff intended to live on the first floor and the Bodmans on the ground floor. The solicitor should have advised them to convey the freehold into their joint names and then to grant separate long leases of the first floor to the plaintiff and the ground floor to the Bodmans respectively. Instead he simply had the house conveyed into their joint names on trust for sale. The plaintiff obtained neither security of tenure nor any interest which she could separately dispose of and, when subsequently the Bodmans decided to move out and sell the house by enforcing the trust for sale, she had to expend further money purchasing the freehold. Held. Her cause of action accrued at the time of the original transaction rather than at the later time when the Bodmans decided to enforce the trust for sale. Templeman LJ said: "Damages were suffered on that date because the plaintiff did not receive the long lease and joint tenancy which the solicitors should have secured for her. She secured instead some other different interest. She has suffered damage because she did not get what she should have got." The court did not compare the value of the interest that the claimant in fact received with the amount that she paid for it. The mere fact that "she did not get what she should have got" was sufficient to amount to damage.
1 Cites

1 Citers


 
The Clifford Maersk [1982] 3 All ER 905; [1982] 1 WLR 1292
25 May 1982
QBD
Sheen J
Limitation
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 to and including 21 June 1981'. The 21st was a Sunday, the court was closed, and the writ was issued on the day after. The defendants argued that the issue was out of time, saying that properly construed, the extension had expired on the Friday; the extension being by agreement rather than by statute or court rules, the law would not opeate to extend the time further. Held: The defendant's argument failed. The same rules applied to extensions granted by agreement as to times limits imposed by the law. Those rules extended the time for issue until the next day upon which the court was open. The court felt also that this interpretation was consistent with decisions of the US courts, which in the field of admiralty was desirable.
Carriage of Goods at Sea Act 1971
1 Cites


 
Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553; [1982] 3 All ER 833; [1982] 3 WLR 1026
7 Oct 1982
PC
Lord Brightman, Lord Fraser of Tulleybelton, Lord Scarman, Kord Kwry, Lord Bridge of Harwich
Constitutional, Limitation, Commonwealth
(Malaysia) In 1972 the appellants were injured by the respondent's bus. At that time the local limitation period was 12 months. In 1974 the limitation period became three years. The appellants issued a writ in 1975. To succeed they would have to sue under the 1974 Act. Held: The claim was time barred. The respondent's right to rely upon entitlement to plead the twelve-month time bar constituted an accrued right, and the Act was not to be construed retrospectively depriving it of its defence unless such a construction was unavoidable, which it was not.
Apart from the provisions of the interpretation statutes, there is at common law a prima facie rule of construction that a statute should not be interpreted retrospectively so as to impair an existing right or obligation unless that result is unavoidable on the language used. A statute is retrospective if it takes away or impairs a vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability, in regard to events already past. Whether a statute is to be construed in a retrospective sense, and if so to what extent, depends on the intention of the legislature as expressed in the wording of the statute, having regard to the normal canons of construction and to the relevant provisions of any interpretation statute.
Lord Brightman said: "Apart from the provisions of the interpretation statutes, there is at common law a prima facie rule of construction that a statute should not be interpreted retrospectively so as to impair an existing right or obligation unless that result is unavoidable on the language used. A statute is retrospective if it takes away or impairs a vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability, in regard to events already past." As to whether a right to rely upon a statutory limitation provision of that type was a vested right he answered "yes", citing Maxwell v Murphy. The respondent had acquired an "accrued right" on the failure by the appellants to commence an action within the specified period. The proper approach to the construction of the 1948 Ordinance was to see whether the statute, if applied retrospectively, would impair existing rights and obligations. An accrued right to plead a time bar, which is acquired after the lapse of the statutory period, is in every sense a right, even though it arises under an Act which is procedural. It is a right which is not to be taken away by conferring on the statute a retrospective operation, unless such a construction is unavoidable."
He concluded: "In the opinion of their Lordships an accrued entitlement on the part of a person to plead the lapse of a limitation period as an answer to the future institution of proceedings is just as much a 'right' as any other statutory or contractual provision against a future suit."
1 Cites

1 Citers


 
Deerness v John R Keeble and Son (Brantham) Ltd [1983] 2 Lloyd's Rep 260
1983
HL
Lord Diplock, Lord Edmund-Davies, Lord Keith of Kinkel, Lord Brandon of Oakbrook and Lord Brightman
Personal Injury, Limitation
The plaintiff suffered very serious injuries as a passenger in a car, and a writ was issued within the three-year period against the driver and the owner of the car whose insurers made a substantial interim payment. The writ was not served, nor renewed at the end of 12 months, and the limitation period expired without its renewal. A second writ was issued, the insurers relied on the section 11 time bar and the plaintiff sought an extension of time under section 33. Held: Lord Diplock "Faced with the unanimous decision of this House in Walkley that a plaintiff who has actually started an action before the expiry of the primary limitation period has not been prejudiced by what are now the provisions of s11 of the Limitation Act 1980, and therefore cannot bring himself within the provisions s33(1), the learned judge seized on a passage in my own speech in that case in which, with customary caution, I had left open the possibility that there might be some 'most exceptional circumstances' in which the plaintiff might be allowed to proceed after the expiry of the primary limitation period despite the fact that he had brought an action for the same cause of action before the three-years primary limitation period had expired. I added that the only exception I had been able to think of - '… would be in a case in which the plaintiff had been induced to discontinue by a misrepresentation or other improper conduct by the defendant.' Walkley's case was one of discontinuance of proceedings, and the example that I gave is perhaps more accurately characterised as an estoppel from relying on s11 of the Act rather than a disapplication of that section upon a direction of the Court made in the exercise of the discretion conferred upon it by s33, in the making of which direction the Court must have regard to the matters specified in s33(3). Whether a defendant is estopped or not is a question of law. It is not a matter of discretion for the Judge. Sir John Donaldson, MR pointed this out in his judgment in the instant case. The rationale of the rule laid down by this House in Walkley's case did not logically admit of any exceptions."
Limitation Act 1980 11 32(1)
1 Cites

1 Citers



 
 Ronex Properties v. John Laing Construction Ltd; CA 1983 - [1983] 1 QB 398
 
Whyte v Walker 1983 SLT 441
1983


Scotland, Limitation
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.
1 Cites

1 Citers


 
Munro v Anderson-Grice Engineering Co Ltd 1983 SLT 295
1983

Lord Grieve
Scotland, Personal Injury, Limitation
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".
1 Citers



 
 Dove v Banhams Patent Locks; 1983 - [1983] CLY 2215; [1983] 2 All ER 833
 
Pirelli General Cable Works v Oscar Faber and Partners [1983] 1 All ER 65; [1983] 2 AC 1
2 Jan 1983
HL
Lord Fraser
Limitation, Professional Negligence
The plaintiff asked the defendant consulting engineer to design an extension to their factory in 1969. Not later than in April 1970, cracks developed in the chimney. In 1977 the cause of the damage was discovered. It arose from design faults in the selection of materials. The defect could not have been discovered before 1972. Held: The defendant's appeal was allowed. In cases of physical damage, caused by negligent design or construction of a building, the cause of action occurred when the damage came into existence, whether or not it was discovered or discoverable at that time.
Lord Fraser said: "there is an element of confusion between damage to the plaintiff's body and latent defect in the foundations of a building. Unless the defect is very gross, it may never lead to any damage at all to the building. It would be analogous to a predisposition or natural weakness in the human body which may never develop into disease or injury. The plaintiff's cause of action will not accrue until damage occurs, which will commonly consist of cracks coming into existence as a result of the defect even though the cracks or the defect may be undiscovered or undiscoverable."
1 Cites

1 Citers


 
UBAF Ltd v European American Banking Corporation [1984] QB 713; [1984] 1 WLR 508; [1984] CLY 1579
1984
CA
Ackner LJ
Banking, Company, Limitation, Torts - Other
The defendant invited the plaintiff to take part in a syndicated loan. The defendant's assistant secretary signed a letter to the plaintiff making representations, now claimed to be fraudulent. The defendant succeeded at first instance arguing that the signature was not that of the bank, and that even if it was, the action would be statute barred. Held: The court refused to strike out the claim. A company itself made a representation, if it produced a document which was signed by an authorised officer or agent acting within the scope of his actual authority. This applied to bind the defendant bank. The nature of a syndicated loan was a fiduciary arrangement, and the obligations on a lead bank were continuing for limitation purposes, time did not run, and the obligation was not time barred. The issue would be settled at trial when it was established when the defendant could be said to have come to know of the alleged deceit.
1 Cites

1 Citers


 
Telfair Shipping Operation SA v Inersea Carriers SA, the Caroline P [1985] 1 WLR 553; [1984] 2 Lloyd's Rep 266
1984

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

1 Citers


 
Davies v Reed Stock and Co Ltd Unreported 1984
1984


Litigation Practice, Limitation

1 Citers


 
Donald v Rutherford 1984 SLT 70
1984
IHCS
Lord Cameron, Lord Dunpark
Limitation
A pedestrian was injured in a road traffic accident on 3 November 1975 but only raised an action on 13 February 1981. The failure to raise a timeous action was attributable to the fault of his former solicitors. Held: He was allowed to proceed out of time as he had misdirected himself on a material matter of fact. The words "it seems equitable" in section 19A(1) meant and could only mean that the discretion thereby conferred upon the court was unfettered: "In the present case it would appear clear enough that no personal blame can properly be laid on the shoulders of the respondent himself, but he is answerable for the acts of his agents. Their failure to serve the 'protective writ' was the cause of the failure to proceed within the triennium, and their responsibility to the respondent for that failure and consequent liability in damages would, at least so far as pleadings and admitted correspondence disclose, appear to be beyond dispute." Lord Dunpark: "I regard the fact that no blame can be attached to the pursuer for his solicitors' failure to raise his action timeously as cancelled out by the fact that neither the defender nor his insurance company contributed in any way to that failure. The sole fault for that failure was that of the pursuer's solicitors who, for this purpose, are his alter ego."
Limitation Act 1980 19A(1)
1 Citers


 
Copyright 2014 David Swarbrick, 10 Halifax Road, Brighouse, West Yorkshire HD6 2AG.