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Limitation - From: 1996 To: 1996

This page lists 32 cases, and was prepared on 02 April 2018.

 
Glasper v Rodger 1996 SLT 44
1996
SCS
Lord President Hope
Negligence, Limitation
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 & 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."
Prescription and Limitation (Scotland) Act 1973 11(3)
1 Citers


 
Habermehl v Attorney General [1996] EGCS 148
1996

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

1 Citers


 
Spargo v North Essex District Health Authority [1996] 7 Med LR 219
1996
QBD
Collins J
Limitation, Professional Negligence
A plaintiff's knowledge that her injury could be attributed to hypoxia, is not knowledge that the injury is attributable to the act or omission alleged to constitute negligence as might be pleaded in a statement of claim and no ordinary plaintiff could be expected to know that a birth injury was attributable to acts or omissions of that sort until advised by an expert.
1 Citers


 
Kirk Care Housing Association Ltd v Crerar and Partners 1996 SLT 150
1996
SCS
Lord Clyde
Scotland, Limitation
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.
Prescription and Limitation (Scotland) Act 1973
1 Citers


 
Long v Tower Hamlets London Borough Council [1996] EWHC Ch 1; [1996] 2 All ER 683; [1996] 3 WLR 317; [1997] 1 EGLR 78; [1998] Ch 197
20 Mar 1996
ChD
Munby QC J
Landlord and Tenant, Limitation
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 that as a lease in writing, time ran from the notice to quit. The tenant denied that it was lease in writing since no estate was disposed. Held: A written document does not have to be a deed in order to be a 'writing'. The document was therefore in writing, though not a deed. However: "a written document, whatever its terms, however clearly referable to the existence of a lease, and however comprehensive it may be in setting out the terms of the lease, is not a 'lease in writing' for the purposes of para 5(1) of Schedule 1 to the Limitation Act 1980 unless at law the document itself operates to 'pass an interest'." The court considered the tenant's argument that as a reversionary lease it had to be created by deed. The earlier statute prohibited a lease where the total length of the term and te period before it commenced exceeded three years being created by parol. It did not prevent shorter lease being so created. In 1925 the position changed since the 1925 Act referred to interests taking effect in possession: "the effect of the Law of Property Act 1925 was to make equally unenforceable both an oral executory agreement to grant a lease (section 40) and an oral attempt to grant a lease taking effect in possession in the future (section 54(2)), and, accordingly, to put an end to the need to distinguish between those oral transactions for a future tenancy which, as a matter of construction, took effect as mere agreements, and were thus unenforceable by virtue of section 4 of the Statute of Frauds, and those oral transactions which, as a matter of construction, took effect as leases, and thus fell within the exception in section 2 of the Statute of Frauds."
Limitation Act 1980 15(1) - Law of Property Act 1925
1 Cites

[ Bailii ]

 
 Lowsley and Another v Forbes; CA 21-Mar-1996 - Times, 05 April 1996; [1996] CLC 1370
 
Forbes v Wandsworth Health Authority Gazette, 24 April 1996; Times, 21 March 1996; [1996/7] MLR 175; [1997] QB 402; [1996] EWCA Civ 1318; [1996] 3 WLR 1108; [1996] 7 Med LR 175; [1996] 4 All ER 881
21 Mar 1996
CA
Stuart-Smith LJ, Evans LJ
Limitation, Negligence
The plaintiff had a history of circulatory problems in his legs. He underwent surgery losing his leg. The question was when he should have sought advice as to why an attempted by-pass operation had resulted in one leg having to be amputated. He enquired why only some 10 years after the event. He was told that it was because the operation had been unsuccessful and resulted in a loss of blood supply which threatened gangrene. This was not itself negligent, but the surgeon had made a second unsuccessful attempt to operate on the following day and the plaintiff was advised that he would have had a better chance of success if he had tried again earlier. Held: The plaintiff did not have constructive knowledge that the loss of his leg was caused by any act or omission on the part of the surgeon. He trusted the surgeon (who had performed two previous successful operations on his legs) and thought he had simply suffered a misfortune. The limitation period begins to run after the Plaintiff has recovered sufficiently to be able to see need to take legal advice. The court applied a wholly objective test, holding that the average patient would have investigated the matter earlier, and doubted that the individual character and intelligence of the plaintiff was relevant to the inquiry: “It does not seem to me that the fact that a plaintiff is more trusting, incurious, indolent, resigned or uncomplaining by nature can be a relevant characteristic, since this too undermines any objective approach.” and "In my judgment, a reasonable man in the position of the deceased, who knew that the operation had been unsuccessful, that he had suffered a major injury which would seriously affect his enjoyment of life in the future, would affect his employability on the labour market, if he had any, and would impose substantial burdens on his wife and family in looking after him, if he was minded to make a claim at any time, should and would take advice reasonably promptly."
Evans LJ: "Since there is a wide discretionary power to extend the period in circumstances which Parliament has defined in section 33, there is no clear requirement to construe the knowledge provisions in section 14 narrowly or in favour of individual plaintiffs. I therefore consider that they should be interpreted neutrally so that in respect of constructive knowledge under section 14(3) an objective standard applies."
Limitation Act 1980 11(1)
1 Cites

1 Citers

[ Bailii ]
 
Long v Tower Hamlets London Borough Council Times, 29 March 1996; [1996] 2 All ER 683
29 Mar 1996
ChD
James Munby QC
Landlord and Tenant, Limitation
The landlord's agents wrote to the proposed tenant offering a quarterly tenancy of the premises. The tenancy was to commence at a future date. The defendant endorsed the letter and returned it to say he would abide by the terms, and he was allowed into possession. He ceased to pay rent, and eventually came to claim that he had acquired the freehold by adverse possession. Held: The appropriate limitation period of twelve years ran from the date of the accrual of the right of action. The landlord said that, as a lease in writing, time ran only from the date of a notice to quit. The tenant said no lease in writing existed unless it was dispositive, ie a document creating a leasehold estate. The document was not executed as a deed, and could only create a legal estate if it fell within s54(2) of the 1925 Act. Since it did not take affect in possession, it was reversionary and could not fall within the exception. A tenancy for less than three years but without immediate possession being taken must be by deed: 'there was no 'lease in writing' for the purposes of paragraph 5(1) if the writing, however comprehensively set out and clearly referable to the existence of a new lease, was merely evidential. If there was to be a 'lease in writing' the writing itself had to 'pass an interest' and 'operate a lease' or 'create an estate.' and 'Reversionary lease conferring no immediate right to take possession were altogether excluded form the ambit of section 54(2) of the 1925 Act. Such reversionary leases could take effect only if made by deed. Therefore the tenancy which undoubtedly came into existence was not one created by the tenancy document but rather one which arose by operation of law, by the payment and receipt of rent.' The action was arguable and should be allowed to proceed.
Law of Property Act 1925 54(2) - Limitation Act 1980 Sch1 p5(1)
1 Cites


 
Busby v Cooper; Busby v Abbey National plc; Busby v Lumby Times, 15 April 1996
2 Apr 1996
CA

Limitation, Litigation Practice
The claimant sought damages after having bought a house after receiving an allegedly negligent report on the concrete. She had asked to be allowed to add a third party (the local authority who had passed the building) as a defendant, but the request was outside the primary limitation period and was refused and again on appeal. She now sought to appeal. Held: Her appeal was allowed. It was within the court's jurisdiction to try issues relationg to the primary facts which would decide how the limitation rules would be applied. Section 14(10(b) operated to extend the time limit provided in 14(4)(a), and therefore it was not necessary to issue a new set of proceedings. The joining of a third party after the initial limitation period had expired, remained possible. The claim was justiciable.
Limitation Act 1980 14A(4)(a) 14A(4)(b)
1 Cites


 
Lloyd's Bank Plc v Rogers and Another Times, 11 April 1996
11 Apr 1996
QBD

Limitation
Claim may be added outside limitation period where based on same facts.
Limitation Act 1980 35
1 Cites

1 Citers


 
Collier v John Neville Creighton and others [1996] UKPC 7
8 May 1996
PC

Commonwealth, Limitation
(New Zealand) The plaintiff sought damages for breach of a fiduciary duty by his solicitors. They responded that his claim was out of time. The judge had found an equitable fraud, and therefore time did not begin to run until it was discovered. Held: The Appeal court had been correct in finding that the solicitor had disclosed his interest in the matter, and that therefore time began running then, and the claim was now barred.
[ Bailii ]
 
Boot v Boot Times, 09 May 1996
9 May 1996
CA

Limitation
Limitation runs only from date of demand on loan with no fixed repayment date.
Limitation Act 1980 6(2)


 
 C v Mirror Group Newspapers and Others; CA 21-Jun-1996 - Times, 15 July 1996; [1996] EMLR 518; [1997] 1 FCR 556; [1996] 2 FLR 532; [1996] 4 All ER 511; [1996] Fam Law 671; [1996] EWCA Civ 1290; [1997] 1 WLR 131
 
Chung Ping Kwan and others v Lam Island Development Company Limited Times, 16 July 1996; [1996] UKPC 23
8 Jul 1996
PC
Lord Keith of Kinkel Lord Jauncey of Tullichettle Lord Nicholls of Birkenhead Lord Steyn Sir Christopher Slade
Commonwealth, Limitation, Landlord and Tenant
(Hong Kong) Various provisions had been made for the termination of long leases in Hong Kong. Land had come to be occupied by adverse possession. At first instance the judge had given judgment against the squatters, but then retracted after a later court of appeal decision. The Court of Appeal re-instated the first order. Held: The squatter against a leasehold title could acquire only a title equivalent to that of the leasehold interest. When a squatter on land held under a renewable lease is sued and pleads a limitation defence, the lessee is unable to respond by relying upon the (deemed) new lease as a new title setting time running afresh.
1 Cites

[ Bailii ]

 
 Hamlin and Another v Edwin Evans (A Firm); CA 15-Jul-1996 - Gazette, 17 July 1996; Times, 15 July 1996; [1996] PNLR 398

 
 Coad v Cornwall and Isles of Scilly Health Authority; CA 17-Jul-1996 - Times, 30 July 1996; Gazette, 17 July 1996; [1997] 8 Med LR 154; [1997] 1 WLR 189
 
ED and F Man (Sugar) v Haryanto Times, 09 August 1996; Unreported, 17 July 1996
17 Jul 1996
CA
Leggatt, Morritt and Brooke LJJ
Limitation
An action may be brought on a judgment to enforce it, if it is still within the relevant limitation period: "Suing on a judgment, at all events for the first time, cannot be said to defeat legislative policy. That is plain from the very language of section 24 . . Here the second action was, of course, brought within that limitation period. There are two relevant ways of enforcing a judgment: by execution and by action. It is plain that the Court will not give judgment in an action on a judgment unless satisfied that the action does not constitute an abuse of process, having regard, amongst other things, to the availability of execution. It would, in my judgment, be for a defendant (or a person in the position of defendant) to show that a second action did constitute an abuse of process; the primary obligation is not that of a plaintiff to justify the bringing of further proceedings. Because, in the event of abuse of process, the Court may intervene and refrain from giving judgment in the second action, it cannot be said that a second action proceeds without judicial scrutiny, even if the second action is a matter of right and not discretion. Of course, it favoured the applicant in the present proceedings that it was a matter of discretion, even though, when he came to exercise it, he exercised it against the applicant. The authorities to which our attention has been drawn show that the Courts have always held the bringing of the second action to be a matter of right, and in my judgment that is what it is…"
1 Cites

1 Citers


 
Sparks v Harland Times, 09 August 1996
9 Aug 1996
QBD

Limitation
Action may be stayed not struck out pending ECJ case possibly changing law.


 
 Ezekiel v Orakpo; CA 16-Sep-1996 - Times, 16 September 1996; [1997] 1 WLR 340
 
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541; (1996) 139 ALR 1; (1996) 70 ALJR 866
2 Oct 1996


Commonwealth, Limitation
(High Court of Australia) McHugh J said that the public interest requires disputes to be settled as quickly as possible.
1 Citers

[ Austlii ]
 
Mehmet Coban v Aynur Allen F Barnes and Son (a Firm) [1997] 8 Med LR 316; [1996] EWCA Civ 680
8 Oct 1996
CA

Personal Injury, Limitation
The defendant resisted the plaintiff's claim for personal injuries as out of time. His explanation for not pursuing inquiries with his solicitor was that he was an over-stayer who feared deportation. Held: Having good reason to make such inquiries, it was reasonable for him to do so despite his immigration status.
Limitation Act 1980 14A(10)
1 Cites

1 Citers

[ Bailii ]
 
Redland Aggregates Limited v Dace, Pallett, Ellick and Mahoney [1996] EWCA Civ 708
11 Oct 1996
CA

Land, Limitation

Prescription Act 1832
1 Cites

1 Citers

[ Bailii ]
 
Coban v Alleb and Another Times, 14 October 1996
14 Oct 1996
CA

Limitation
Failure to get advice for fear of law enforcement not good reason to extend time.
Limitation Act 1980 14A

 
Stubbings and Others v The United Kingdom Times, 24 October 1996; (1996) 23 EHRR 213; [1996] ECHR 44; 22083/93; 22095/93
22 Oct 1996
ECHR

Limitation, Human Rights
There was no human rights breach where the victims of sex abuse had been refused a right to sue for damages out of time. The question is whether and to what extent differences in otherwise similar situations justify a different treatment in law: "Limitation periods in personal injury cases are a common feature of the domestic legal systems of the Contracting States. They serve several important purposes, namely to ensure legal certainty and finality, protect potential defendants from stale claims which might be difficult to counter and prevent the injustice which might arise if courts were required to decide upon events which took place in the distant past on the basis of evidence which might have become unreliable and incomplete because of the passage of time."
The Court considered the positive duty falling on states to protect against child abuse: "Sexual abuse is unquestionably an abhorrent type of wrongdoing, with debilitating effects on its victims. Children and other vulnerable individuals are entitled to state protection, in the form of effective deterrence, from such grave types of interference with essential aspects of their private lives."
European Convention on Human Rights 6.1
1 Cites

1 Citers

[ Bailii ] - [ Bailii ]
 
Ekwuru v Alitalia Airlines [1996] EWCA Civ 922
11 Nov 1996
CA

Contract, Limitation
The claimant bought two airline tickets, but did not use them. Ten years later he requested a refund. Held. Any appeal would be hopeless.
Limitation Act 1980 5
[ Bailii ]
 
Kelly v Bastible and Others Gazette, 15 January 1997; Times, 15 November 1996
15 Nov 1996
CA

Limitation
Limitation rules were not to be dis-applied merely because the defendant was insured.
Limitation Act 1980

 
Armstrong and others v British Coal Corporation Times, 06 December 1996; [1996] EWCA Civ 1049
28 Nov 1996
CA

Personal Injury, Limitation, Health and Safety
Liability for vibration white finger damage was foreseeable from 1973, but liability began in 1975 when precautions became available against the consequences and so the employer was able to protect his employees.
1 Citers

[ Bailii ]
 
Forward v Hendricks [1996] EWCA Civ 1132; [1997] 2 All ER 395
6 Dec 1996
CA

Personal Injury, Limitation

1 Cites

1 Citers

[ Bailii ]
 
Riddell v Wessex Regional Hospital Authority and Another [1996] EWCA Civ 1197
12 Dec 1996
CA

Limitation

Limitation Act 1980 33
1 Cites

[ Bailii ]

 
 Bristol and West Building Society v Baden Barnes and Groves; QBD 13-Dec-1996 - Unreported, 13 December 1996

 
 Lloyds Bank Plc v Rogers and Another; CA 20-Dec-1996 - Times, 24 March 1997; [1996] EWCA Civ 1277
 
Marlborough (West End) Ltd v Wilks Head and Eve Unreported, 20 December 1996
20 Dec 1996
ChD
Lightman J
Land, Limitation
A dispute between neighbours was settled by a deed with the following clause: "IT IS HEREBY AGREED AND DECLARED that notwithstanding that the Building Owners have placed windows in that part of their new buildings which overlook the premises occupied by the adjoining owner no right or easement of light or air exists in respect thereof or has been or shall at any future time be acquired by the Building Owners or any one deriving title through or under them and the adjoining owner and the Freeholders and all persons deriving title through or under them or either of them shall have the right to intercept light and air coming to the said windows." Held: the second and third limbs of this clause entitled the adjoining owner to redevelop in a way that would interrupt light. Accordingly the proviso to s.3 was triggered and the building owner did not acquire by prescription rights to light across the land of the adjoining owner. The nature of restrictive covenants was discussed. The judge also drew attention to the difference between acquisition by grant at the date of the disposition and acquisition by prescription based on actual enjoyment after that date.
Lightman J said: "Whether or not a document constitutes such a consent or agreement is a question of construction. In this context, care must be taken to distinguish between provisions designed to protect the servient owner by negativing the implication of a grant of an easement or the grant of analogous rights under the doctrine of non-derogation from grant or to establish by agreement the existing legal rights of the parties; and provisions designed to authorise the servient owner at a future date to carry out works or build as he pleases unrestricted by any easement of light in favour of the dominant land and notwithstanding any resultant injury to the light enjoyed. Provisions of the former character do not constitute either consents or agreements by the servient owner licensing or consenting to the future enjoyment of the access to light and accordingly do not prevent acquisition of light by prescription (see Mitchell v Cantrill (1887) 37 Ch D 36); but provisions of the latter character may be construed as consents or agreements permitting the enjoyment of light during the interim period and accordingly (as provided in Section 3) preclude any easement arising by prescription under the Act (see Willoughby v Eckstein [1937] Ch 167)."
Prescription Act 1832 3
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1 Citers


 
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