Tabarrok v E D C Lord and Co (A Firm): CA 14 Feb 1997

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

Judges:

Hirst LJ, Aldous LJ, Schiemann LJ

Citations:

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

Jurisdiction:

England and Wales

Citing:

CitedWelsh Development Agency v Redpath Dorman Long Ltd CA 4-Apr-1994
A new claim was not deemed to have been made until the pleading was actually amended for limitation purposes, and should not be allowed after the limitation period had expired. The date of the application for leave to amend was not at issue. The . .
CitedLep Air Services v Rolloswin Investments Ltd; Moschi v LEP Air Services HL 1973
The obligation of a guarantor under a contract ‘is not an obligation himself to pay a sum of money to the creditor, but an obligation to see to it that another person, the debtor, does something.’ When a repudiatory breach is accepted by the injured . .
CitedDW Moore and Co Ltd v Ferrier CA 1988
A solicitor was instructed to prepare an agreement providing for the introduction of a new working director into an insurance broking business carried on by a company. His instructions called for the new director to enter into a restrictive covenant . .
CitedForster 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 . .
CitedBaker v Ollard and Bentley CA 12-May-1982
The plaintiff and a Mr and Mrs Bodman agreed to buy a house. The plaintiff intended to live on the first floor and the Bodmans on the ground floor. The solicitor should have advised them to convey the freehold into their joint names and then to . .
CitedHancock Shipping Limited v Kowaski Heavy Industries CA 1992
Leave was sought by the plaintiffs to amend their points of claim in circumstances where it was common ground that the amendments would introduce new causes of action which, if brought in new proceedings, would have been statute-barred. Held . .
Lists of cited by and citing cases may be incomplete.

Limitation, Professional Negligence

Updated: 20 May 2022; Ref: scu.89686

Green and Another v Wheatley: CA 19 May 1999

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

Judges:

Stuart Smith LJ, Laws LJ, Jonathan Parker LJ

Citations:

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

Jurisdiction:

England and Wales

Land, Limitation

Updated: 19 May 2022; Ref: scu.81003

Cachia and Others v Faluyi: CA 11 Jul 2001

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

Citations:

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

Statutes:

Fatal Accidents Act 1976 2(3)

Jurisdiction:

England and Wales

Personal Injury, Limitation, Human Rights

Updated: 19 May 2022; Ref: scu.78816

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

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

Citations:

Times 15-Apr-1996

Statutes:

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

Jurisdiction:

England and Wales

Citing:

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

Limitation, Litigation Practice

Updated: 19 May 2022; Ref: scu.78778

Bowers v Kennedy: IHCS 28 Jun 2000

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

Citations:

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

Links:

Bailii, Bailii

Land, Limitation, Scotland

Updated: 18 May 2022; Ref: scu.78518

Batchelor v Marlow and Another: ChD 25 May 2000

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

Citations:

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

Cited by:

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

Land, Road Traffic, Limitation

Updated: 18 May 2022; Ref: scu.78277

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

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

Judges:

Rimer J

Citations:

Gazette 17-May-2001

Land, Limitation

Updated: 18 May 2022; Ref: scu.78291

Holmes v Cowcher: ChD 1970

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

Judges:

Stamp J

Citations:

[1970] 1 WLR 834

Cited by:

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

Land, Limitation

Updated: 18 May 2022; Ref: scu.277164

In re Lloyd; Lloyd v Lloyd: CA 1903

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

Citations:

[1903] 1 Ch 385

Land, Limitation

Updated: 18 May 2022; Ref: scu.277163

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

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

Judges:

Chadwick J

Citations:

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

Statutes:

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

Cited by:

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

Litigation Practice, Evidence, Limitation

Updated: 17 May 2022; Ref: scu.77850

Fowley Marine (Emsworth) Ltd v Gafford: 1968

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

Citations:

[1968] 2 QB 618

Cited by:

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

Land, Limitation

Updated: 17 May 2022; Ref: scu.267382

Brown v North British Steel Foundry Ltd: OHCS 1968

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

Judges:

Lord President Clyde

Citations:

1968 SC 51

Statutes:

Law Reform (Limitation of Actions etc) Act 1954

Cited by:

CitedJohnston 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 . .
CitedAXA General Insurance Ltd and Others v Lord Advocate and Others SCS 8-Jan-2010
The claimant sought to challenge the validity of the 2009 Act by judicial review. The Act would make their insured and themselves liable to very substantial unanticipated claims for damages for pleural plaques which would not previousl or otherwise . .
Lists of cited by and citing cases may be incomplete.

Scotland, Personal Injury, Limitation

Updated: 17 May 2022; Ref: scu.260124

Aylott v West Ham Corporation: CA 1927

The plaintiff sought to recover a sum of money under a statute.

Judges:

Lord Hanworth MR

Citations:

[1927] 1 Ch 30

Cited by:

CitedHill (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: 17 May 2022; Ref: scu.244179

Watson-Towers Ltd v McPhail: 1986

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

Judges:

Lord Wylie

Citations:

1986 SLT 617

Cited by:

FollowedDaks Simpson Group plc v Kuiper 1994
The creditor sought summary judgment for an account for commissions earned. In a ‘without prejudice’ letter the defendant’s director said that he was prepared to accept that he had received such commissions in stated amounts.
Held: Lord . .
CitedBradford and Bingley Plc v Rashid HL 12-Jul-2006
Disapplication of Without Prejudice Rules
The House was asked whether a letter sent during without prejudice negotiations which acknowledged a debt was admissible to restart the limitation period. An advice centre, acting for the borrower had written, in answer to a claim by the lender for . .
Lists of cited by and citing cases may be incomplete.

Scotland, Contract, Limitation

Updated: 17 May 2022; Ref: scu.243123

Wilkinson v Ancliff (BLT) Ltd: CA 1986

In order to be fixed with sufficient knowledge to start the limitation period running, it was not necessary for the plaintiff to have knowledge sufficient to enable his legal advisers to draft a fully and comprehensively particularised statement of claim.

Judges:

Slade LJ

Citations:

[1986] 1 WLR 1352

Cited by:

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

Limitation

Updated: 17 May 2022; Ref: scu.238774

Wolmershausen v Gullick: 1893

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

Judges:

Wright J

Citations:

[1893] 2 Ch 514

Cited by:

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

Limitation, Damages, Contract

Updated: 17 May 2022; Ref: scu.238752

Kingsmill v Millard: 20 Jun 1855

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

Judges:

Parke B

Citations:

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

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

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

Land, Limitation, Landlord and Tenant

Updated: 17 May 2022; Ref: scu.228930

Smirk v Lyndale Developments Ltd: ChD 1975

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

Judges:

Pennycuick V-C

Citations:

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

Jurisdiction:

England and Wales

Citing:

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

Cited by:

CitedTower Hamlets v Barrett and Another CA 19-Jul-2005
The defendant tenants appealed an order for them to surrender possession of land which they claimed had been acquired by adverse possession. The buildings, including one which shared a party wall with the building owned by the defendants had been . .
Appeal fromSmirk v Lyndale Developments Ltd CA 2-Jan-1975
Judgment upheld . .
CitedTrustees In the Charity of Sir John Morden v Mayrick; Graham v Mayrick CA 12-Jan-2007
The claimant had owned tracts of land in London for very many years, but the title deeds had been lost. The defendant had purchased a part from a company who had in turn purchased from the claimants, but the parties disputed an adjacent strip of . .
CitedGraham and others v Mayrick ChD 23-Mar-2006
The claimants sought specific performance of a compromise agreement with the defendant after a dispute over a strip of land. The defendant appealed a finding that the claimants had shown satisfactory title.
Held: ‘It has long been established . .
CitedLong v Tower Hamlets London Borough Council ChD 20-Mar-1996
The parties had agreed for a lease, and the tenant entered possession, but no formal lease was executed. The tenant stopped paying rent in 1977 or 1984. He now claimed rectification of the registers to show him as proprietor. The landlord argued . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation, Landlord and Tenant

Updated: 17 May 2022; Ref: scu.228931

Re a Debtor: ChD 1997

The creditor appealed the decision to set aside a statutory demand as statute barred.
Held: The appeal was dismissed. Bankruptcy proceedings based on a statutory demand for moneys due under a previous default judgment constituted ‘an action upon a judgment’ within s24(1). Insolvency proceedings constituted a fresh action or proceeding newly brought, of the kind described in Lamb, rather than a proceeding under the judgment previously obtained. Bankruptcy proceedings were not, the judge held, a method of, nor were they akin to, enforcing or executing a judgment outside s24(1). As more than 6 years had elapsed since the default judgment became enforceable, bankruptcy proceedings based on it in the statutory demand would be statute barred by s24(1). It was held that the statutory demand had been rightly set aside by the district judge.

Judges:

Baker J

Citations:

[1997] Ch 310

Statutes:

Limitation Act 1980 24(1)

Cited by:

CitedRidgeway 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: . .
DisapprovedRidgeway Motors (Isleworth) Ltd v Altis ChD 21-May-2004
The company sought to strike out a winding up petition presented by the respondents, saying a winding up petition was by way of an action, and was barred by statute after six years.
Held: A winding up petition was not an action within the . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Limitation

Updated: 16 May 2022; Ref: scu.223039

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

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

Judges:

Neill J

Citations:

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

Citing:

DistinguishedForster 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:

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

Limitation, Contract

Updated: 16 May 2022; Ref: scu.221432

Westminster City Council v Clifford Culpin and partners: CA 18 Jun 1987

It was questionable whether plaintiffs should be allowed the benefit of the full limitation period with virtual impunity where the facts are known and there is no obstacle to the speedy institution and prosecution of claims.

Judges:

Kerr LJ

Citations:

Unreported, 18 June 1987, Transcript No 592 of 1987

Cited by:

DoubtedDepartment of Transport v Chris Smaller (Transport) Ltd HL 1989
An application had been made to strike out a claim for want of prosecution. The writ was not issued until the end of the relevant six year limitation period and then not served for a further nine months. The period of inexcusable delay after action . .
CitedGrovit and others v Doctor and others HL 24-Apr-1997
The plaintiff began a defamation action against seven defendants. Each had admitted publication but pleaded justification. The claims against the fourth to seventh defendants were dismissed by consent, and the third had gone into liquidation. The . .
Lists of cited by and citing cases may be incomplete.

Limitation

Updated: 16 May 2022; Ref: scu.214298

Purbrick v Hackney London Borough Council: ChD 26 Jun 2003

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

Judges:

Mr Justice Neuberger

Citations:

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

Jurisdiction:

England and Wales

Citing:

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

Cited by:

CitedTopplan Estates Ltd v David Townley CA 27-Oct-2004
The registered proprietor of land appealed a finding that the defendant had established adverse possession of their land. The claimant had occupied it as part of his farm. Originally there had been a grazing tenancy. The tenancy was terminated, and . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 16 May 2022; Ref: scu.184716

Davis v Whitby: CA 1974

The court discussed the need for some system of acquisition of right by user.
Lord Denning MR said: ‘the long user as of right should by our law be given a lawful origin if that can be done.’
Stamp LJ said: ‘if long enjoyment of a right is shown, the court will strive to uphold the right by presuming that it had a lawful origin.’

Judges:

Lord Denning MR, Stamp LJ

Citations:

[1974] 1 Ch 186

Statutes:

Law of Property Act 1925 40

Jurisdiction:

England and Wales

Cited by:

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

Land, Limitation

Updated: 16 May 2022; Ref: scu.179839

Attorney General v Cocke: ChD 1988

Judges:

Harman J

Citations:

[1988] 1 Ch 414

Statutes:

Limitation Act 1980 21(3)

Jurisdiction:

England and Wales

Cited by:

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

Limitation, Trusts

Updated: 16 May 2022; Ref: scu.608336

Reeves v Butcher: CA 1891

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

Judges:

Fry LJ, Lindley LJ, Lopes LJ

Citations:

[1891] 2 QB 509

Jurisdiction:

England and Wales

Citing:

ApprovedHemp v Garland, Administrator and Co 1843
The Defendant gave a warrant of attorney to secure a debt payable by instalments, the plaintiff to be at liberty, in case of any default, to have judgment and execution for the whole, as if all the periods for payment had expired. Held that, in an . .

Cited by:

CitedBMW Financial Service (GB) Ltd v Hart CA 10-Oct-2012
This appeal is concerned with a point of limitation arising out of a standard hire purchase contract concerning a car. The respondent had failed to maintain his payments, and theappelleants issued a termination notice. He was abroad fr a while, and . .
Lists of cited by and citing cases may be incomplete.

Limitation

Updated: 16 May 2022; Ref: scu.605194

Kaufmann Brothers v Liverpool Corporation: KBD 1916

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

Judges:

Lush J, Rowlatt J

Citations:

[1916] 1 KB 860

Statutes:

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

Cited by:

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

Police, Limitation

Updated: 15 May 2022; Ref: scu.270266

Nelson v Rye and Another: ChD 5 Dec 1995

The claimant, a solo musician appointed the defendant to be his manager collecting the fees and royalties due to him and paying his expenses. Rye was to account to him annually for his net income after deducting his own commission. When the relationship came to an end the plaintiff claimed an account, and the question was whether the account should be limited to the six years before the issue of the writ or whether it should extend over the whole period of the relationship.
Held: Pure breach of trust were not subject to limitation but is so on an allegation of constructive trust. Millett LJ: ‘Accordingly, the defendant’s liability to account for more than six years before the issue of the writ in Nelson v Rye depended on whether he was, not merely a fiduciary (for every agent owes fiduciary duties to his principal), but a trustee, that is to say, on whether he owed fiduciary duties in relation to the money.
Whether he was in fact a trustee of the money may be open to doubt. Unless I have misunderstood the facts or they were very unusual it would appear that the defendant was entitled to pay receipts into his own account, mix them with his own money, use them for his own cash flow, deduct his own commission, and account for the balance to the plaintiff only at the end of the year. It is fundamental to the existence of a trust that the trustee is bound to keep the trust property separate from his own and apply it exclusively for the benefit of his beneficiary. Any right on the part of the defendant to mix the money which he received with his own and use it for his own cash flow would be inconsistent with the existence of a trust. So would a liability to account annually, for a trustee is obliged to account to his beneficiary and pay over the trust property on demand. The fact that the defendant was a fiduciary was irrelevant if he had no fiduciary or trust obligations in regard to the money. If this was the position, then the defendant was a fiduciary and subject to an equitable duty to account, but he was not a constructive trustee. His liability arose from his failure to account, not from his retention and use of the money for his own benefit, for this was something which he was entitled to do.
Unless the defendant was a trustee of the money which he received, however, the claim for an account was barred after six years. The fact that the defendant was a fiduciary did not make his failure to account a breach of fiduciary duty or make him liable to pay equitable compensation. His liability to account arose from his receipt of money in circumstances which made him an accounting party. It did not arise from any breach of duty, fiduciary or otherwise. The defendant was merely an accounting party who had failed to render an account.’

Judges:

Millett LJ

Citations:

Times 05-Dec-1995, [1996] 1 WLR 1378

Cited by:

CitedUltraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
CitedGreen and others v Gaul and Another; In re Loftus deceased ChD 18-Mar-2005
The claimants began an action in January 2003 to seek to set aside the appointment of an administrator from December 1991, and to have set aside transfers of property made within the estate.
Held: The limitation period against a personal . .
Lists of cited by and citing cases may be incomplete.

Limitation

Updated: 15 May 2022; Ref: scu.84248

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

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

Judges:

Moses J

Citations:

Times 09-Oct-1998

Statutes:

Limitation Act 1980 4

Jurisdiction:

England and Wales

Citing:

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

Cited by:

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

Limitation, Torts – Other

Updated: 15 May 2022; Ref: scu.80941

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

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

Citations:

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

Litigation Practice, Limitation

Updated: 15 May 2022; Ref: scu.77778

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

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

Citations:

Times 30-Aug-1999

Limitation

Updated: 15 May 2022; Ref: scu.77603

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:

CitedHill (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 . .
CitedNolan 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

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:

AppliedWallis’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

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 approvedCentral 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 . .
CitedLegal 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

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 fromBowden 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

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:

CitedWalkley 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:

CitedBarry 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 . .
AppliedRe 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 . .
CitedJacqueline 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 . .
CitedHorton 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:

CitedWalkley 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:

CitedBarry 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

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:

CitedFirst 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 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:

CitedTower 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 . .
CitedBradford 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

Steamship Mutual Underwriting Association Ltd v Trollope and Colls Ltd: CA 1986

The employers sued the builders and architects alleging defects in the air conditioning system. Later, cracking and displacement of the walls was discovered, caused allegedly by not having sulphate resisting cement, and defects in the wall ties. Allegations were made against the contractors and the architects and also structural engineers. The question then arose whether the amendments raised new claims for the purposes of section 35 of the 1980 Act.
Held: May LJ said: ‘I think it is necessary to adopt a broad approach to these cases. At the stage of the issue of the writ or the service of the statement of claim, in the present context one is not, as I think, concerned with the minutiae of the cause of action which will ultimately have to be investigated at the trial. In the Limitation Act context, one asks in quite broad terms whether the relevant factual situation . . first came about, first was suable upon more than the three, six or twelve years previously. In the res judicata context one has to ask whether the issues in the hypothetical second action were realistically before the court in the hypothetical first action. Merely to rely upon the propositions which I have already quoted from Brunsden v Humphrey in the judgment of Bowen LJ, which was referred to in the judgment of Sankey LJ in Conquer v Boot , that it is a well settled rule of law that damages resulting from one and the same cause of action must be assessed and recovered once and for all, (entirely accurate though that is and I would not wish, with respect, to differ at all), nevertheless in the instant context I think that it effectively begs the whole question at the outset.’
and ‘In the present case, if one remembers what a cause of action is (for instance, to refer back to the dictum in Letang), if one looks to the size of this particular building, to its complexities, to other matters of degree, to the statement of claim before the proposed reamendment, to the attitude of the appellants’ solicitors in the correspondence at the material time, to which I have referred, and avoids what I think are unnecessary subtleties, I feel bound to agree with the learned judge where he concluded, having referred to the cases on what is a cause of action, the statement of claim in both its original and amended form related only to the air conditioning. I think that its effect was to narrow the causes of action so that they became confined to breaches of contract concerned with air conditioning and negligence resulting in damages to the air conditioning. In the light of the definitions of a cause of action already referred to, I do not think one can look only to the duty on a party, but one must look also to the nature and extent of the breach relied upon, as well as to the nature and extent of the damage complained of in deciding whether, as a matter of degree, a new cause of action is sought to be relied upon. The mere fact that one is considering what are, as it is said, after all only different defects to the same building, does not necessarily mean in any way that they are constituents of one and the same cause of action.
Thus I conclude that whether there is a new cause of action in any circumstances is a mixed question of law and fact. I am satisfied that the learned judge correctly directed himself on the law on this point, and not only am I unable to say that he applied the law incorrectly to the facts of the case, I think positively that he applied that law correctly to the facts of the case.’
and ‘In my opinion, to issue a writ against a party . . when it is not intended to serve a statement of claim, and where one has no reasonable evidence or grounds on which to serve a statement of claim against that particular party, is an abuse of the process of the court.’
Lloyd LJ said: ‘in each case it will depend on the facts whether the damage gives rise to a separate cause of action, or not’ and ‘there may be separate causes of action in relation to the same building, depending upon the facts of the case.’

Judges:

Lloyd LJ and May LJ

Citations:

[1986] 33 BLR 77

Statutes:

Limitation Act 1980 35

Jurisdiction:

England and Wales

Cited by:

CitedSavings and Investment Bank Ltd (in Liquidation) v Fincken CA 6-Nov-2001
When the court was asked to decide whether a proposed form of amendment to the pleadings would add an issue which was out of time, the court must look to the pleadings before and after the proposed amendment, and the factual issues which would have . .
CitedMcDonalds Corp and Another v Steel and Another CA 25-Mar-1994
The plaintiff company had sued the defendants in defamation with regard to a leaflet publishd and distributed by them. The defendants argued justification. The defendants appealed against an order striking out parts of their defence, saying that the . .
Lists of cited by and citing cases may be incomplete.

Construction, Limitation, Litigation Practice

Updated: 29 April 2022; Ref: scu.183221

Hawkes v Howe: CA 29 Jul 2002

The parties were neighbours. One asserted that the other had trespassed in a building by 2.5 inches. The defendant appealed an award of damages. A garage had been built over the boundary by a previous occupier but by agreement. The new owner replaced the garage. He claimed to have acquired the land by prescription.
Held: The judge had failed to make an essential finding on an issue as to the adverse possession, and the matter ought to have been reheard. However the overriding objective required a proportional approach, and a rehearing would prejudice the parties. An order was made reducing the damages, in the hope that this would conclude the matter.
There is sometimes said to be a rebuttable presumption that an owner of land will put the posts on his own land so that the fence stands on the boundary.

Judges:

Mr Justice Sumner, Lord Justice Keene

Citations:

[2002] EWCA Civ 1136

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedStephenson and Another v Johnson and Another CA 12-Jul-2000
There had been a dispute as to the correct boundary between two properties in North Yorkshire. The land had been in common ownership until 1973. The 1973 conveyance showed the boundary in a position which the claimants said was determinative. The . .
CitedNeilson v Poole ChD 1969
Significance of Boundary agreements
The parties, neighbours, disputed the boundary between their gardens. In a conveyance of land where the plan is stated to be for identification purposes only, the effect of those words: ‘Seems . . to confine the use of the plan to ascertaining where . .

Cited by:

CitedWitt v Woodhead UTLC 18-Nov-2020
No determined Boundary – Court Findings Enough
Land Registration – Boundary Disputes – Construction of Conveyance – Straight Line Boundary – usefulness of computer-generated lines – party wall – fence posts
Held: ‘It should be borne in mind that a carefully-drawn conveyance plan showing a . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 28 April 2022; Ref: scu.174421

Phelps v Spon-Smith and Co (A Firm): ChD 26 Nov 1999

It was possible to amend a writ to add a cause of action out of time where that cause had been included in the original pleadings served within the limitation period, but which had been omitted by mere error from the writ.

Citations:

Times 26-Nov-1999, Gazette 01-Dec-1999

Statutes:

Limitation Act 1980 25, Rules of the Supreme Cour Order 20

Jurisdiction:

England and Wales

Litigation Practice, Limitation

Updated: 28 April 2022; Ref: scu.84701

TPE v Franks: QBD 10 Jul 2018

The claimant had had judgment in his personal injury claim entered in default of a defence. The defendant applied to set it aside as prima facie defeated by limitation. His application was rejected on the basis that since had had admitted the offence alleged, the limitation period would be extended allowing the claim to succeed.
Held: The defendant’s appeal succeeded. There was no particular requirement as to when a limitation defence might be raised and considered. The prima facie existence of a section 33 defence would not always be determinative in setting aside a default judgment. The onus lay on the claimant to establish that it would be equitable under section 33 to set aside the limit set by section 11. That onus might be heavy, requiring particular justification for why the claim was brought out of time.

Judges:

Julian Knowles J

Citations:

[2018] EWHC 1765 (QB), [2018] WLR(D) 433

Links:

Bailii, WLRD

Statutes:

Civil Procedure Ruls 13.3, Limitation Act 1980

Jurisdiction:

England and Wales

Limitation, Litigation Practice

Updated: 25 April 2022; Ref: scu.620090

Atha and Co Solicitors v Liddle: QBD 9 Jul 2018

The defendant solicitors appealed against an order extending the time period for claiming against them in negligence.
Held: The appeal failed. The court however noted conflicting decisions and looked forward to guidance from the Court of Appeal.

Judges:

Turner J

Citations:

[2018] EWHC 1751 (QB), [2018] WLR(D) 422

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Limitation, Professional Negligence

Updated: 25 April 2022; Ref: scu.620078

Savings and Investment Bank Ltd (in Liquidation) v Fincken: ChD 2 Mar 2001

The process of testing whether a new cause of action was proposed by an amendment of pleadings to bring into question application of the Limitation Acts, was conducted by asking at what level of abstraction was it claimed that there were one or two causes. Is a different duty relied upon, the nature and extent of the breach, and what is the group of material facts relied upon.

Citations:

Times 02-Mar-2001, Gazette 20-Apr-2001

Statutes:

Limitation Act 1980 35

Jurisdiction:

England and Wales

Cited by:

Appeal fromSavings and Investment Bank Ltd (in Liquidation) v Fincken CA 6-Nov-2001
When the court was asked to decide whether a proposed form of amendment to the pleadings would add an issue which was out of time, the court must look to the pleadings before and after the proposed amendment, and the factual issues which would have . .
See AlsoSavings and Investment Bank Ltd (In Liquidation) v Fincken CA 14-Nov-2003
Parties to litigation had made without prejudice disclosures. One party sought to give evidence contradicting the dsclosure, and the other now applied for leave to amend based upon the without prejudice statements to be admitted to demonstrate the . .
Lists of cited by and citing cases may be incomplete.

Limitation, Litigation Practice

Updated: 13 April 2022; Ref: scu.89031

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 calculation.

Judges:

Havers J

Citations:

[1961] 2 All ER 270, [1961] 2 QB 135

Statutes:

Limitation Act 1939 2(1)

Jurisdiction:

England and Wales

Citing:

AppliedRadcliffe v Bartholomew 1892
The day on which an accident happened should be excluded from calculation for limitation purposes. . .

Cited by:

CitedPritam 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 . .
ApprovedPritam Kaur v S Russell and Sons Ltd CA 2-Jun-1972
The plaintiff sought damages following the death of her husband when working for the defendant. The limitation period expired on Saturday 5 September 1970. The writ was issued on the Monday following.
Held: The appeal succeeded. The writ was . .
Lists of cited by and citing cases may be incomplete.

Limitation

Updated: 12 April 2022; Ref: scu.231058

Marlborough (West End) Ltd v Wilks Head and Eve: ChD 20 Dec 1996

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).’

Judges:

Lightman J

Citations:

Unreported, 20 December 1996

Statutes:

Prescription Act 1832 3

Jurisdiction:

England and Wales

Citing:

CitedWilloughby v Eckstein ChD 1936
The parties were tenants of the same landlord, the Grosvenor Estate in adjoining premises at Balfour Mews in Westminster. The plaintiff claimed for an infringement of his right of light from ancient windows by his neighbour, and also that the height . .
CitedMitchell v Cantrill CA 1887
In 1864 Sir Humphrey de Trafford granted a 999 year lease of a dwelling house ‘with all rights and appurtenances, legal, used, or reputed, to the said plot of land, except rights, if any, restricting the free use of any adjoining land or the . .

Cited by:

CitedMidtown Ltd v City of London Real Property Company Ltd ChD 20-Jan-2005
Tenants occupied land next to land which was to be developed after compulsory acquisition. The tenants and the landlords asserted a right of light over the land, and sought an injunction to prevent the development. The developer denied that any . .
CitedRHJ Ltd v FT Patten (Holdings) Ltd and Another CA 12-Mar-2008
A right to light is an unusual form of easement in the sense that it exists only with regard to the access to light to defined apertures in a building (as opposed to the dominant land generally) and its acquisition depends on actual enjoyment, not . .
CitedCGIS City Plaza Shares 1 Ltd and Another v Britel Fund Trustees Ltd ChD 13-Jun-2012
The claimants asserted a right of light either by prescription or under lost modern grant. The defendants argued that alterations in the windows arrangements meant that any prescription period was restarted.
Held: ‘the Defendant is not correct . .
CitedRHJ Ltd v FT Patten (Holdings) Ltd and Another ChD 13-Jul-2007
The court was asked whether the grant of a lease including a clause reserving: ‘All rights to the access of light or air from the said adjoining property known as Victoria House and Graham House to any of the windows of the demised property.’ . .
CitedSalvage Wharf Ltd and Another v G and S Brough Ltd CA 29-Jan-2009
The claimant had agreed with a developer in 1999 to allow a development which would have a minor affect on his light. The developer later extended the development, to increase the interference with the right to light, relying on the earlier . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 12 April 2022; Ref: scu.222586

Bristol and West Building Society v Baden Barnes and Groves: QBD 13 Dec 1996

cw Proposed amendments to a plaintiff’s pleadings were insufficient to prevent a striking out. The amendments either sought to advance by a different route the earlier claim which was bound to fail, or to introduce a new cause of action which was statute barred and did not derive from the same, or substantially the same, facts.

Citations:

Unreported, 13 December 1996

Jurisdiction:

England and Wales

Citing:

Appealed toBristol and West Building Society v Baden Barnes and Groves CA 2000
cw Proposed amendments to a plaintiff’s pleadings failed to prevent a striking out. The amendments either sought to advance by a different route the earlier claim which was bound to fail, or sought to introduce a . .

Cited by:

Appeal fromBristol and West Building Society v Baden Barnes and Groves CA 2000
cw Proposed amendments to a plaintiff’s pleadings failed to prevent a striking out. The amendments either sought to advance by a different route the earlier claim which was bound to fail, or sought to introduce a . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Legal Professions, Land, Limitation

Updated: 12 April 2022; Ref: scu.184541

Regina v Secretary of State for Transport, ex parte Factortame (No 7): TCC 27 Nov 2000

Breaches of articles in the European Treaty by the UK government were tortious in nature, and the appropriate limitation period for claiming was governed by section 2 (six years). The government had failed to allow European fishing vessels into its waters, and had made itself liable for damages. Once this became clear, applicants sought to add new heads of losses, and other parties sought to add their claims. They were however to be prevented from doing so, being out of time.

Judges:

His Honour Judge John Toulmin Cmg Qc

Citations:

Gazette 22-Mar-2001, Times 10-Jan-2001, [2001] 1 WLR 942

Statutes:

Limitation Act 1980 2

Jurisdiction:

England and Wales

Cited by:

CitedPhonographic Performance Limited v Department of Trade and Industry HM Attorney General ChD 23-Jul-2004
The claimant represented the interests of copyright holders, and complained that the defendant had failed to implement the Directive properly, leaving them unable properly to collect royalties in the music rental market. The respondent argued that . .
Lists of cited by and citing cases may be incomplete.

Limitation, European

Updated: 10 April 2022; Ref: scu.87967

Payabi and Another v Armstel Shipping Corporation and Another: QBD 1 Apr 1992

A party had been wrongly added in breach of limitation under Hague Convention. There should have been no relation back. Hobhouse J considered the effect of the 1980 Act: ‘But it is clear that Ord. 20, r. 5 must now be read with the [1980] Act and is implicitly (but inelegantly) giving effect to the first alternative, (a), in section 35(6). The result is that the rule relevant to the present case, Ord 20. r. 5, must be construed as being made under the general power to regulate procedure and under the more specific power given for the purposes of that Act by section 35 of the Act of 1980.’

Judges:

Hobhouse J

Citations:

Gazette 01-Apr-1992, [1992] 1 QB 907

Statutes:

Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Comercial Matters 1965 Cmd 3986, Limitation Act 1980 35(6)

Citing:

CitedMitchell v Harris Engineering Co Ltd CA 1967
The plaintiff was seeking to claim against his employers for personal injuries. There was correspondence with them before action that did not lead to a settlement. When the writ was issued a junior clerk made a mistake and issued it in the very . .

Cited by:

CitedHamilton and others v Allied Domecq Plc (Scotland) HL 11-Jul-2007
The pursuers had been shareholders in a company which sold spring water. The defenders took shares in the company in return for promises as to the promotion and distribution of the bottled water. The pursuers said that they had failed to promote it . .
Lists of cited by and citing cases may be incomplete.

Judicial Review, Limitation

Updated: 09 April 2022; Ref: scu.84615

Nitrigin Eirann Teoranta v Inco Alloys Ltd: QBD 22 Jan 1992

Cracking in a pipe which was repaired, was a purely economic loss, and therefore not recoverable. When it subsequently failed causing damage by an explosion from leakage, that was the first recoverable damage and time began to run from that date, and not on the discovery of the original cracks.

Citations:

Gazette 22-Jan-1992, [1992] 1 All ER 854

Limitation, Damages

Updated: 09 April 2022; Ref: scu.84309

Mortgage Corporation v Alexander Johnson (A Firm): ChD 7 Jul 1999

The rule that in the case of a dispute as to whether a claim was time barred, a fresh action had to be begun to allow the proposition to be tested, did not apply where the delay arose from some deliberate concealment of the cause of action by the proposed defendant, and the deliberateness was itself an issue in the action. Mr David Donaldson QC refused permission to amend to plead breaches of fiduciary duty after expiry of the prima facie limitation period, saying: ‘plainly the deliberateness of a breach of duty can rarely, if ever, be determined in advance of the question whether there was a breach at all. In the case of an amendment pleading such a breach as a cause of action after expiry of the primary limitation period, that would normally mean leave to amend should be refused. That can readily be seen in a case where the plaintiff seeks to raise a new case of breach of contract, rebutting limitation by the suggestion of deliberate breach; but there the deliberateness would not be an essential element of the breach. The position is less obvious where the deliberateness of the breach is an essential element of the cause of action and is therefore pleaded as such as part of the substantive claim; for in such a case without the deliberateness the claim will fail anyway and the limitation defence adds nothing.
there appear to be difficult questions . . as to what ‘deliberate commission of a breach of duty’ would mean and involve in the present case. These would include such questions as precisely what kind of mental state is included in the adjective ‘deliberate’ and what that would amount to in the present case. Does this require consciousness that the conduct is in breach, or recklessness as to whether it is in breach or alternatively, consciousness that the conduct is in some way wrong or recklessness as to that? Or is it sufficient that the acts are intentional without reference to their quality as breaches of duty? ‘

Judges:

Mr David Donaldson QC

Citations:

Times 22-Aug-1999

Cited by:

CitedMortgage Express v Abensons Solicitors (A Firm) ChD 20-Apr-2012
The claimant lender sought damages against the defendant solicitors alleging negligence and breach of fiduciary duty by them in acting for them on mortgage advances. The defendants now argued that the allowance of an amendment to add the allegation . .
Lists of cited by and citing cases may be incomplete.

Limitation

Updated: 09 April 2022; Ref: scu.83869

Mortgage Corporation v Lambert and Co (A Firm) and Another: CA 24 Apr 2000

If it was alleged that a lender could should have been aware of an overvaluation of a property so as to start the limitation clock, the owner must satisfy the court that it was reasonable at the time alleged for the lender have become obliged to obtain a retrospective valuation. That burden was not carried in this case.

Citations:

Times 24-Apr-2000, [2000] PNLR 820

Statutes:

Limitation Act 1980 14A(10)

Jurisdiction:

England and Wales

Citing:

Appeal froomMortgage Corporation v Lambert and Co (A Firm) and Another ChD 11-Oct-1999
Estimates of the real values of houses which had been taken as security for loans were not sufficiently precise to forewarn a lender of the damage resulting from earlier negligent valuations, and accordingly the lender was not fixed with notice by . .

Cited by:

Appealed toMortgage Corporation v Lambert and Co (A Firm) and Another ChD 11-Oct-1999
Estimates of the real values of houses which had been taken as security for loans were not sufficiently precise to forewarn a lender of the damage resulting from earlier negligent valuations, and accordingly the lender was not fixed with notice by . .
CitedAdams 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.

Land, Limitation, Professional Negligence

Updated: 09 April 2022; Ref: scu.83872

Mortgage Corporation v Lambert and Co (A Firm) and Another: ChD 11 Oct 1999

Estimates of the real values of houses which had been taken as security for loans were not sufficiently precise to forewarn a lender of the damage resulting from earlier negligent valuations, and accordingly the lender was not fixed with notice by the estimates, and time did not begin to run against them.

Citations:

Times 11-Oct-1999

Statutes:

Limitation Act 1980 14A(10)

Jurisdiction:

England and Wales

Citing:

Appealed toMortgage Corporation v Lambert and Co (A Firm) and Another CA 24-Apr-2000
If it was alleged that a lender could should have been aware of an overvaluation of a property so as to start the limitation clock, the owner must satisfy the court that it was reasonable at the time alleged for the lender have become obliged to . .

Cited by:

Appeal froomMortgage Corporation v Lambert and Co (A Firm) and Another CA 24-Apr-2000
If it was alleged that a lender could should have been aware of an overvaluation of a property so as to start the limitation clock, the owner must satisfy the court that it was reasonable at the time alleged for the lender have become obliged to . .
Lists of cited by and citing cases may be incomplete.

Limitation, Land

Updated: 09 April 2022; Ref: scu.83871

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 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.

Judges:

James Munby QC

Citations:

Times 29-Mar-1996, [1996] 2 All ER 683

Statutes:

Law of Property Act 1925 54(2), Limitation Act 1980 Sch1 p5(1)

Citing:

CitedDoe d. Landsell v Gower 1851
The tenant was let into parochial property by the parish officers making an entry in the vestry book ‘We the churchwardens and overseers of P., do hereby agree to let to JB of . . . The newly erected cottage . . Situate . . . At the rent of 1s 6d . .
CitedMoses 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 . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Limitation

Updated: 09 April 2022; Ref: scu.83180

Lloyd’s Bank Plc v Rogers and Another: QBD 11 Apr 1996

Claim may be added outside limitation period where based on same facts.

Citations:

Times 11-Apr-1996

Statutes:

Limitation Act 1980 35

Citing:

Appealed toLloyds Bank Plc v Rogers and Another CA 20-Dec-1996
An out of time claim for defamation was allowed after late disclosures by the defendant bank in the case. . .

Cited by:

Appeal fromLloyds Bank Plc v Rogers and Another CA 20-Dec-1996
An out of time claim for defamation was allowed after late disclosures by the defendant bank in the case. . .
Lists of cited by and citing cases may be incomplete.

Limitation

Updated: 09 April 2022; Ref: scu.83113

Kershaw v Whelan (No 2): QBD 10 Feb 1997

A parallel or alternative claim in equity is not defeated by limitation in another.

Citations:

Times 10-Feb-1997

Citing:

See AlsoKershaw v Whelan QBD 20-Dec-1995
A claimant making a claim against his solicitor was deemed to have waived legal privilege for all relevant documents. . .
Lists of cited by and citing cases may be incomplete.

Limitation

Updated: 09 April 2022; Ref: scu.82753

James v East Dorset Health Authority: CA 7 Dec 1999

A patient had an operation which appeared to have gone unsuccessfully, but only much later proved to have been the source of an injury.
Held: Time could only begin to run when the fact of the injury became known. He was not fixed with knowledge of the injury by an awareness of the deterioration following the operation.

Citations:

Times 07-Dec-1999

Statutes:

Limitation Act 1980 14

Jurisdiction:

England and Wales

Limitation, Professional Negligence

Updated: 08 April 2022; Ref: scu.82481

Industrie Chimiche, Italia Centrale and Another v Alexander G Tsavliris and Sons Etc: ComC 19 Jul 1995

Procedure – RSC Order 20 r.5 – amendment with leave – mistake – mistake as to identity of person intending to sue – mistake as to name of that party – distinction – Procedure- RSC Order 20 r.5(3) – amendment with leave – discretion – RSC Order 6 r.8(1) – validity of writ – 4 months – RSC Order 11 r.1(1) – leave to serve outside jurisdiction – validity of writ – 6 months – admiralty action in personam – RSC Order 75 r.4(4) – exclusion of RSC Order 11 r.1(2) -meaning – Procedure – privilege – deployment of court material otherwise privileged – principles – application at interlocutory stage – fairness – disclosure of part of privileged document – waiver of privilege with respect to other parts – Procedure – substitution of parties – RSC Order 15 r.7 – outside limitation period
A new party can be added outside the limitation period for that party if the writ was served within time. An interest can be transferred from one party to another if the time limit is relevant. In all situations of such ‘everyday occurrences as death of one or other party, bankruptcy leading to assignment to a trustee in bankruptcy, assignment, transmission or devolution of interest … of which death was only the most striking, it seemed self-evident both that any existing proceedings, properly constituted within the limitation period, should be allowed to continue for or against the party to whom the relevant right or obligation had been transferred in law; and that that should be permitted whether the transfer occurred before or after the expiry of the limitation period. The underlying rationale of limitation periods, to protect against stale claims which should have been brought earlier, had no application to this type of case.’

Judges:

Mance J

Citations:

Ind Summary 04-Sep-1995, Times 08-Aug-1995, [1996] 1 WLR 774, [1996] 1 All ER 114, [1995] 2 Lloyd’s Rep 608

Statutes:

Rules of the Supreme Court Order 15 r7

Jurisdiction:

England and Wales

Cited by:

CitedPharmedica GMBH’s Trade Mark Application ChD 2000
The tribunal was asked whether an assignee of a trademark should be substituted in existing opposition proceedings for the assignor. The assignment had taken place after the proceedings had begun.
Held: A tribunal has an inherent power to . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Limitation

Updated: 08 April 2022; Ref: scu.82324

In Re A Debtor (2672 of 2000): ChD 2 Nov 2000

More than six years after a costs order, the creditor began bankruptcy proceedings for unpaid costs. The debtor claimed the debt was time barred. The court found that the time started when the judgment became enforceable. As regards an order for costs, that happened only when the amount was fixed by taxation. The six year period had not expired with respect to that date.

Citations:

Gazette 02-Nov-2000, Times 05-Dec-2000

Statutes:

Limitation Act 1980 24

Insolvency, Costs, Limitation

Updated: 08 April 2022; Ref: scu.81648

Hampton v Minns: ChD 17 May 2001

The parties were each sureties for a debt to their bank from their company. The bank recovered the company’s debt from one surety, who in turn sought a contribution of half from the other. The respondent asserted that the claim was statute barred, because in this case it was a claim under a guarantee for which the limitation period was two years. The claimant succeeded, on the basis that the claim was in debt, because of the particular agreement. On its true construction the agreement between the parties created a debt, and the right to a contribution did not arise under the 1978 Act.

Citations:

Gazette 17-May-2001

Statutes:

Civil Liability (Contributions) Act 1978 1, Limitation Act 1980 10

Limitation, Banking

Updated: 08 April 2022; Ref: scu.81213

Global Financial Recoveries Ltd v Jones: ChD 13 Jan 2000

The defendant entered into a mortgage loan. The property was repossessed and he faced an action for recovery of the shortfall. It was argued that the claim was out of time after six years. The court held that the debt remained a specialty debt and the twelve year period applied, but nevertheless, the actual claimant claimed under an assignment which had assigned only the personal element of the debt, but not the benefit of the covenant within the mortgage deed. An assignment of the debt alone operated to assign that debt, and not the right given under the mortgage, and so a claim under the assignment was limited as under contract.

Citations:

Gazette 13-Jan-2000, Times 23-Feb-2000, [2000] BPIR 1029

Statutes:

Limitation Act 1980

Cited by:

CitedWest Bromwich Building Society v Wilkinson HL 30-Jun-2005
The Society had taken possession of a property in 1989. It located the defendants many years later and sought payment of the excess after deduction of the proceeds of sale, and for interest. The borrowers claimed the debt was expired by limitation . .
Lists of cited by and citing cases may be incomplete.

Limitation, Land, Banking, Limitation

Updated: 08 April 2022; Ref: scu.80875

Gold v Mincoff Science and Gold: ChD 18 Jan 2001

A sleeping partner in a business executed several charges over partnership property, unaware that the funds raised were being used for purposes other than the partnership business. Their solicitors admitted negligence in not advising them sufficiently closely as to the effect of the all monies nature of the charges. A claim was brought to recover money, but then enlarged when the creditor appreciated the extent of the all monies charge. The claimant sought damages for negligence from the solicitor.
Held: The limitation defence succeeded only in part. Where the solicitor had chosen to hide the effect of the clause from his client on signing later charges, liability arising under earlier charges continued.

Judges:

Neuberger J

Citations:

Gazette 18-Jan-2001

Statutes:

Limitation Act 1980

Cited by:

Appeal FromGold v Mincoff Science and Gold (A Firm) CA 19-Jul-2002
. .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Land, Limitation

Updated: 08 April 2022; Ref: scu.80896

Ezekiel v Lehrer: ChD 21 Mar 2001

The claimant had given instructions to the defendant with regard to a charge. The defendant came to know that he had made an error, and when asked by the claimant, declined to answer, and referred the claimant to independent advice. The claimant now said that this amounted to a concealment of the truth such as to delay the onset of the limitation period.
Held: The circumstances could have been discovered by the claimant from correspondence sent to him by the defendant. The deemed misleading by the defendant did not therefore operate to suspend the running of the limitation period, and the claim was out of time.

Judges:

Evans-Lombe J

Citations:

Times 04-Apr-2001, Gazette 17-May-2001

Statutes:

Limitation Act 1980 32(1)(b)

Citing:

CitedMarkes v Coodes 1997
. .
CitedJames Brocklesby v Armitage and Guest (a Firm) CA 9-Jul-1999
A failure by an adviser to make his position clear when he thought he had been negligent, could constitute a ‘deliberate’ act within section 32 even if the defendant’s actions were not motivated by any intention to deceive the claimant: ‘it is not . .

Cited by:

Appeal fromEzekiel v Lehrer CA 30-Jan-2002
The applicant claimed that his solicitor had been negligent with regard to the execution of a mortgage. The solicitor said his claim was time barred. The claimant said the solicitor had hidden the true situation from him, and the solicitor replied . .
Lists of cited by and citing cases may be incomplete.

Limitation

Updated: 08 April 2022; Ref: scu.80430

Commissioners of Customs and Excise v Le Rififi Ltd: QBD 2 Aug 1993

One assessment covering numerous accounting periods constitutes a single global assessment. If any part of a global VAT assessment is time barred, then the whole assessment fails.

Citations:

Times 02-Aug-1993, Ind Summary 30-Aug-1993

Statutes:

Finance Act 1985 22(1)

Jurisdiction:

England and Wales

Cited by:

Appealed fromCustoms and Excise Commissioners v Le Rififi Ltd CA 14-Dec-1994
One paper assessment covering several tax periods need always not be treated as just one assessment. This was a question of fact to be decided on the particular circumstances. . .
Lists of cited by and citing cases may be incomplete.

VAT, Limitation

Updated: 08 April 2022; Ref: scu.79335

Julien and Others v Evolving Tecknologies and Enterprise Development Company Ltd: PC 19 Feb 2018

Trinidad and Tobago – Commencement of limitation period in claim based upon allegation of breach of company director’s or fraud.

Judges:

Lord Kerr, Lord Reed, Lord Hughes, Lord Lloyd-Jones, Lord Briggs

Citations:

[2018] UKPC 2

Links:

Bailii

Jurisdiction:

Commonwealth

Limitation, Company

Updated: 05 April 2022; Ref: scu.605690

Matthew and Others v Sedman and Others: ChD 27 Nov 2017

The court was asked:’when a cause of action is completely constituted at the very first moment of a particular day, does that day fall to be included when calculating the applicable six years’ limitation period or does it fall to be excluded? More pertinently for present purposes, if a cause of action accrued at the very first moment of Friday 3rd June 2011, is a claim issued after Friday 2nd June 2017 brought after the expiration of six years from the date on which the cause of action first accrued?’

Judges:

Hodge QC HHJ

Citations:

[2017] EWHC 3527 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Limitation

Updated: 05 April 2022; Ref: scu.605330

Royal Borough of Kensington and Chelsea v Khan and Wellcome Trust: ChD 8 Jun 2001

Judges:

Lurence Collins

Citations:

[2001] EWHC Ch 411

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedSwansea 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 fromRoyal Borough of Kensington and Chelsea v Khan and Another CA 16-Jan-2002
. .
Lists of cited by and citing cases may be incomplete.

Limitation

Updated: 05 April 2022; Ref: scu.605193

Vilca and Others v Xstrata Ltd and Another: QBD 19 Jan 2018

Claims for personal injuries suffered during a protest in Peru about a company whose parent company was registered within the UK. The court now heard submissions as to the Peruvian law of limitation.

Judges:

Stuart-Smith J

Citations:

[2018] EWHC 27 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Jurisdiction, Limitation, International

Updated: 03 April 2022; Ref: scu.603732

Sophocleous and Others v Secretary of State for The Foreign and Commonwealth Office and Another: QBD 12 Jan 2018

The 34 claimants complained of assaults, beatings, rape and other acts of violence allegedly inflicted from 1956 to 1958 in Cyprus during the ‘Cyprus Emergency’ (the Emergency) by agents of the United Kingdom government and of the then Colonial Administration of Cyprus.

Judges:

KerrJ

Citations:

[2018] EWHC 19 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Torts – Other, Armed Forces, Limitation

Updated: 03 April 2022; Ref: scu.602630

Raja v Lloyds Tsb Bank Plc: ChD 16 May 2000

The obligation of a mortgagee having taken possession of a property to obtain a proper price, was an obligation due in equity, and not either under the contract for the loan or as associated with the speciality agreement giving the property in charge. Nevertheless the claim was akin to an action for damages for negligence, and the period of limitation governing the action was six years.

Citations:

Times 16-May-2000

Statutes:

Limitation Act 1980 2

Jurisdiction:

England and Wales

Limitation, Professional Negligence

Updated: 03 April 2022; Ref: scu.85655

Greater Manchester Police v Carroll: CA 1 Dec 2017

The Police appealed from a finding that the claim brought by a former constable was not out of time. He had worked under cover making drugs purchases, and had become addicted to heroin.
Held: The appeal failed.

Judges:

Sir Terence Etherton MR

Citations:

[2017] EWCA Civ 1992, [2018] 4 WLR 32, [2017] WLR(D) 818

Links:

Bailii, WLRD

Statutes:

Limitation Act 1980 11 14

Jurisdiction:

England and Wales

Negligence, Limitation

Updated: 02 April 2022; Ref: scu.601138

Portugal v Commission C-339/16: ECJ 17 May 2017

ECJ European Commission Implementing Decision – Time Limit for Bringing An Action – Point From Which Time Starts To Run Judgment – Appeal – EAGF and EAFRD – European Commission implementing decision – Notification to the addressee – Subsequent rectification of the print lay-out of the annex – Publication of the decision in the Official Journal of the European Union – Time limit for bringing an action – Point from which time starts to run – Delay – Inadmissibility

Citations:

[2017] EUECJ C-339/16

Links:

Bailii

Jurisdiction:

European

Limitation

Updated: 26 March 2022; Ref: scu.584339

O’Keefe and Another (Liquidators of Level One Residential (Jersey) Ltd and Special Opportunity Holdings Ltd) v Caner and Others: ChD 15 May 2017

The court considered whether Jersey law operated to disbar the claims against several defendants by limitation.

Judges:

Keyser QC HHJ

Citations:

[2017] EWHC 1105 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency, Limitation

Updated: 26 March 2022; Ref: scu.583992

Godfrey Morgan Solicitors (A Firm) v Armes: CA 2 May 2017

‘The issue in this appeal is whether a defendant joined to proceedings by way of amendment outside the limitation period, and sued in the alternative to the existing defendant, has been added to the claim as a new party or has been substituted for the existing defendant, for the purposes of the Civil Procedure Rules (‘CPR’). Substitution is permitted, but simple addition is not.’

Citations:

[2017] EWCA Civ 323

Links:

Bailii

Jurisdiction:

England and Wales

Civil Procedure Rules, Limitation

Updated: 24 March 2022; Ref: scu.582106

Delvalle, Head and Others, Creditors of Company for Raising The Thames Water In York Buildings v Company of Undertakers for Raising the Thames Water in York Buildings: HL 12 Mar 1788

Prescription – Foreign. – Circumstances in which held, that certain bonds due to creditors in England, by an English Company, ranked on an estate in Scotland belonging to that Company, had incurred the negative prescription of forty years. Reversed in House of Lords.

Citations:

[1788] UKHL 3 – Paton – 98

Links:

Bailii

Jurisdiction:

Scotland

Limitation

Updated: 23 March 2022; Ref: scu.581002

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 behind the cottages was used by the occupants, including the land in dispute. He added that the land was sadly neglected and an old couple lived there. He never paid any rent for it. Mr and Mrs Hayward were prominent supporters of the church. He said that he would not expect them to ask him for the 10s. per annum rent.’
Held: A corporation sole may acquire land by adverse possession. Russell LJ said ‘Nor do I doubt the applicability of section 9 (2) to the present case,’ and
‘just because the freeholders were content that the rector should not pay his rent and did not bother to ask for it for all those years. In Moses v Lovegrove in this court it was assumed on all hands that when section 9 apparently operates, adverse possession starts: see especially Lord Evershed, and Romer LJ. The principle clearly accepted was that once the period covered by the last payment of rent expired, the tenant ceased to be regarded by the Limitation Acts as the tenant. This case was not cited to the county court judge. A similar assumption was made in Nicholson v England, under the then existing principles which section 10 (1) was designed to embody. Textbooks to the same effect include Cheshire’s Modern Law of Real property, 9th ed. (1962), pp. 797, 798: Megarry and Wade’s Textbook of the Law of Real Property, 3rd ed. (1966), p. 1010: and Preston and Newsom on Limitation of Actions, 3rd ed. (1953), p.89. I am not aware that the contrary view has been anywhere expressed.’

Judges:

Russell LJ

Citations:

[1968] 1 QB 107

Statutes:

Limitation Act 1939

Jurisdiction:

England and Wales

Citing:

CitedMoses 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 . .

Cited by:

CitedLodge (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 . .
CitedBarton v The Church Commissioners for England ChD 15-Dec-2008
The commissioners claimed a right by prescription to all fish to be taken in a stretch of the River Wye. The claimant was to moor a barge on the river.
Held: The court explained the nature and legal status of fisheries in the law going back to . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Limitation

Updated: 23 March 2022; Ref: scu.264078

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 issued against a company which had been struck off the register, the Walkley principle does not defeat a second action in limine, despite the defect being curable, by having the company restored to the register.

Citations:

Gazette 08-Apr-1992, [1992] 1 WLR 416

Statutes:

Limitation Act 1980

Jurisdiction:

England and Wales

Citing:

DistinguishedWalkley 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 . .
AppliedWhite 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 . .

Cited by:

CitedBarry 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 . .
CitedJacqueline 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 . .
CitedHorton 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.

Insolvency, Limitation, Personal Injury

Updated: 23 March 2022; Ref: scu.85903

Otuo v Watchtower Bible and Tract Society of Britain: CA 9 Mar 2017

Appeal against refusal to excuse claim in slander being out of time. The claim was in respect of the claimant being ‘disfellowed’ by the Society.
Held: The claim form was in fact issued one day within the period. Appeal allowed.

Judges:

Sir Geoffrey Charles Vos Ch, Gloster, Sharp LJJ

Citations:

[2017] EWCA Civ 136

Links:

Bailii

Statutes:

Limitation Act 1980 32A

Jurisdiction:

England and Wales

Defamation, Limitation

Updated: 09 February 2022; Ref: scu.579609

Su (Aka Hsin Chi Su, Su Hsin Chi and Nobu Morimoto) v Clarksons Platou Futures Ltd and Another: ComC 24 Feb 2017

Application by the Defendants for summary judgment in respect of one of the Claimant’s claims. It is said that the claim is time barred so that the Claimant has no real prospect of the claim succeeding. The application was opposed.

Judges:

Teare J

Citations:

[2017] EWHC 337 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Limitation

Updated: 04 February 2022; Ref: scu.578054

Spire Healthcare Ltd v Brooke: QBD 11 Nov 2016

The claimant, Spire, claimed an indemnity or contribution from the defendantin respect of damages and costs which it, Spire, has paid to Mr Jellett in settlement of a personal injuries claim brought by Mr Jellett against both Spire and Mr Brooke

Morris J
[2016] EWHC 2828 (QB)
Bailii
Civil Liability (Contribution) Act 1978
England and Wales

Limitation, Estoppel

Updated: 25 January 2022; Ref: scu.571117

Rudall v The Crown Prosecution Service and Another: QBD 14 Nov 2016

The claimant solicitor alleged that the repeated and failed prosecutions of him and the obtaining of search warrants had been an improper attempt to stop him practising.

Phillips J
[2016] EWHC 2884 (QB)
Bailii
Limitation Act 1980 32
England and Wales

Administrative, Limitation, Torts – Other

Updated: 25 January 2022; Ref: scu.571115