Limitation - 1997

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This page lists 35 cases, and was prepared on 28 October 2012.

Re a Debtor [1997] Ch 310
1997 ChD Baker J	Insolvency, Limitation	Casemap 1 Citers
	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.
	Limitation Act 1980 24(1)

Markes -v- Coodes [1997] PNLQ 252
1997	Limitation, Professional Negligence	Casemap 1 Citers
	Limitation Act 1980 32

Derek Andrew Ward -v- T Dougall CA Civ 785
16 Jan 1997 CA	Land, Nuisance, Limitation	Casemap 1 Cites
	The plaintiff and defendant were neighbours. An aerial had, for 22 years projected 4 feet over the plaintiff's land. His claim in nuisance was struck out, and the registrar had suggested he had a claim in trespass, but that that action was time barred. The appellant brought counsel's opinion to support his request for leave to appeal, but that hardly assisted him. He might have argued that the trespass was a continuing one, but that night have left at most an action for damages, the result of which would be nominal and a disaster in costs. Leave to appeal out of time refused.
	Limitation Act 1980
	Link[s] omitted

Hopkinson; Richard Bessell Hare; Timothy Peter Wreford Hare and Birmingham Mid-Shires Building Society -v- John David Tupper [1997] EWCA Civ 882
30 Jan 1997 CA Auld LJ	Land, Limitation	Casemap 1 Cites
	The plaintiffs appealed an order striking out their claim for want of prosecution. The defendant's property had been sold by the mortgagees, and the plaintiffs as assignees of their debt sought to recover the balance outstanding from the defendants. The defendant had been in default since 1984. The defendants said that the claim was in personalty only being under the assignment of the debt. Held: There was a presumption that money recovered would be applied first in the repayment of interest. It was arguable that a 12 years' limitation period under the general rule in Section 8 of the 1980 Act for actions on a specialty would not apply. Auld LJ said: “it is seriously arguable that when a mortgagee has re-possessed and has sold the security and is seeking to recover the shortfall, his claim is in simple contract whatever the nature of the instrument under which the debt was initially secured”. As to the delay, the judge had considered the correct elements. The circumstances of a case, the issues and the length of delay, may entitle a court to infer that memories are likely to have become so dim as seriously to prejudice the case of a party and make continuation of the proceedings unfair. The defendant had suffered prejudice by the delay.
	Limitation Act 1980 5 8 20(1)
	Link[s] omitted

Michael Joseph Moore Philip Monjack -v- Richard Alfred Gadd Ada June Gadd [1997] EWCA Civ 931; Times, 17 February 1997
5 Feb 1997 CA	Limitation, Company	1 Citers
	The normal limitation period applies to directors' disqualification applications.
	Limitation Act 1980 39
	Link[s] omitted

Kershaw -v- Whelan (No 2)
10 Feb 1997 QBD	Limitation	Casemap 1 Cites
	A parallel or alternative claim in equity is not defeated by limitation in another.

Tabarrok -v- E D C Lord & Co (A Firm) [1997] EWCA Civ 951
14 Feb 1997 CA Hirst LJ, Aldous LJ, Schiemann LJ	Limitation, Professional Negligence	Casemap 1 Cites
	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. "
	Link[s] omitted

David John Beattie -v- British Steel Plc; Philip Monk -v- British Steel Plc [1997] EWCA Civ 1172
6 Mar 1997 CA	Limitation
	Link[s] omitted

Spargo -v- North Essex District Health Authority (1997) 37 BMLR 99; [1997] EWCA Civ 1232; [1997] 8 Med LR 125; [1997] PIQR 235
13 Mar 1997 CA Brooke, Nourse, Waller LJJ	Professional Negligence, Limitation, Personal Injury	Casemap 1 Cites 1 Citers
	The test of 'When a plaintiff became aware of the cause of an injury" is a subjective test of what passed through plaintiff's mind. "(1) the knowledge required to satisfy s14(1)(b) is a broad knowledge of the essence of the causally relevant act or omission to which the injury is attributable; (2) 'attributable' in this context means 'capable of being attributed to', in the sense of being a real possibility; (3) a plaintiff has the requisite knowledge when she knows enough to make it reasonable for her to begin to investigate whether or not she has a case against the defendant. Another way of putting this is to say that she will have such knowledge if she so firmly believes that her condition is capable of being attributed to an act or omission which she can identify (in broad terms) that she goes to a solicitor to seek advice about making a claim for compensation; (4) on the other hand, she will not have the requisite knowledge if she thinks she knows the acts or omissions she should investigate but in fact is barking up the wrong tree; or if her knowledge of what the defendant did or did not do is so vague or general that she cannot fairly be expected to know what she should investigate; or if her state of mind is such that she thinks her condition is capable of being attributed to the act or omission alleged to constitute negligence, but she is not sure about this, and would need to check with an expert before she could be properly said to know that it was." This branch of the law is grossly overloaded with reported cases. The court set out four principles for testing such actions, distinguishing the more stringent test of proof of causation from the much less rigorous statutory test of attributability" and “After all, the policy of Parliament, in these cases which would otherwise be statute-barred, is to give a plaintiff who has the requisite low level of knowledge three years in which to establish by inquiry whether the identified injury was indeed probably caused by the identified omission and whether the omission (identified initially in broad terms) amounted to actionable negligence. The judge’s approach would be to stop the three years from even starting to run until a much more advanced stage of the investigation had been completed.”
	Limitation Act 1980 14(1)(b)
	Link[s] omitted

David Edwin Borley -v- Graham Hardwick Dodd [1997] EWCA Civ 1271
19 Mar 1997 CA	Contract, Limitation
	Application for leave to appeal - claim statute barred.
	Link[s] omitted

Mayor and Burgesses of London Borough of Hounslow -v- Anne Minchinton [1997] EWCA Civ 1277; (1997) 74 P&CR 221
19 Mar 1997 CA Lord Justice Butler-Sloss, Lord Justice Millett, Lord Justice Thorpe	Land, Limitation	Casemap 1 Cites 1 Citers
	The defendant asserted title to a strip of land by adverse possession. The judge had held that the occupation by the claimant had been insufficient to establish possession. Held: The use of the land as a garden for compost heaps and similar was a sufficient trespass to allow an action, and was therefore sufficient to found a claim for adverse possession. Having acquired a title by adverse possession, the claimant does not lose it by going out of possession, unless the original owner retakes possession. Enclosure is strong evidence of possession.
	Link[s] omitted

Tunbridge -v- Buss Murton & Co (A Firm) and Another
8 Apr 1997 ChD	Limitation
	Limitation extension raised as arguable point by concealment in pleadings.
	Rules of the Supreme Court Order 18(9)

Saxby -v- Dr Morgan [1997] EWCA Civ 1473
22 Apr 1997 CA	Limitation, Professional Negligence
	Link[s] omitted

Margaret Elaine Thomas -v- Kevin Plaistow [1997] EWCA Civ 1493
23 Apr 1997 CA	Limitation	Casemap 1 Citers
	Link[s] omitted

Thomas -v- Plaistow
30 Apr 1997 CA	Limitation
	A Judge has a discretion to extend the limitation period where memory has recovered after a long delay.
	Limitation Act 1980 33

Isaiah Okegbero Ogbogbo (Widower and Personal Representative of Agnes Victoria Ogbogbo (Deceased)) -v- Ahmet Ziya Ibraham Motor Insurers'Bureau [1997] EWCA Civ 1592
1 May 1997 CA	Personal Injury, Limitation
	Application for leave to appeal.
	Link[s] omitted

Ion Curtis Roach -v- Oxfordshire Health Authority [1997] EWCA Civ 1660
9 May 1997 CA	Personal Injury, Limitation
	Link[s] omitted

Samuels -v- Walker [1997] EWCA Civ 1715
16 May 1997 CA	Limitation
	The plaintiff had been a passenger in a car, and sought damages from the car driver, from an injury occurring as the car crashed. Proceedings were not begun within the three year limit. The proceedings were begun on the basis of an implausible version of events which he had agreed with the defendant shortly after the accident. Upon instructing solicitors, he sought leave to amend his particulars to assert the correct version of events. The judge disallowed the amendment, based upon his abusive conduct. Held: He should be given leave to appeal that order. It was arguable that that consideration of his conduct was not relevant under the Limitation Act.
	Limitation Act 1980
	Link[s] omitted

Thomas -v- Plaistowe
19 May 1997 CA	Limitation
	'Disability' has same meaning for limitation purposes as being an infant, or subject to mental incapacity.
	Limitation Act 1980 28

Sheila Dorothy Vera Cottrell -v- Robert William Lock Thomas Ellis Thomas Ronald Sells (Trading As Tilbrook Hunt and Lock (a Firm) [1997] EWCA Civ 1787
4 Jun 1997 CA	Professional Negligence, Limitation
	Link[s] omitted

Hillingdon London Borough Council -v- ARC Ltd [1998] 1 WLR 174
12 Jun 1997 ChD Stanley Burnton QC J	Land, Limitation	Casemap 1 Cites 1 Citers
	The Council had taken possession of the company's land under compulsory purchase powers, but the company delayed its claim for compensation, and the Council now said that the claim was time barred. Held: The claim was indeed time barred. The cause of action for an entry under a compulsory purchase arose at the date of entry even though compensation not yet assessed. The assumption that no limitation period began to run until the amount of compensation had been agreed was incorrect.
	Compulsory Purchase Act 1965 11 - Limitation Act 1980 9

Collins -v- Brebner [1997] EWCA Civ 1909
19 Jun 1997 CA Saville LJ, Thorpe LJ, Judge LJ	Limitation	Casemap 1 Cites
	The defendant solicitor appealed refusal of an order to strike out the claim. The claimant alleged breach of trust. The claimant asserted a fraudulent witholding of information to suggest that any breach of trust had happened. The defendant said that the claimant had sufficient knowledge independent of any concealment to begin the limitation period. Held: If the facts asserted were established, a claim might be made out. The draconian powers of the court to strike out a claim should not be used, and the appeal failed.
	Limitation Act 1980 32(1)(a) 32(1)(b)
	Link[s] omitted

Sze To Chun Keung -v- Kung Kwok Wai David and Lam Chak Man Estate Limited [1997] 1 WLR 1232; [1997] UKPC 35
27 Jun 1997 PC Lord Goff of Chieveley, Lord Slynn of Hadley, Lord Lloyd of Berwick, Lord Hoffmann, Lord Hutton	Commonwealth, Land, Limitation	Casemap 1 Cites 1 Citers
	(Hong Kong) The respondents were registered owners of land occupied by the appellant who claim title by adverse possession after entry in 1955. Subsequently the claim resided with the Crown. Held: "on the facts as pleaded, the land has been continuously in adverse possession since 1955 and that the plaintiffs' title was extinguished in about 1975. To all outward appearances, there was no change in possession throughout the period and the licensing arrangements between the defendant and a third party, the Crown, did not affect the adverse nature of the possession as against the plaintiffs. At the time when proceedings were commenced, the defendant had been in possession on his own account for only two years. But this does not matter: the Limitation Ordinance is not concerned with whether the defendant has acquired a title but with whether the plaintiffs' right of action has been barred. For this purpose, all that matters is that there should have been continuous adverse possession for the period of limitation. The rights inter se of the successive persons who may have been in possession adversely to the plaintiffs since they were dispossessed are for this purpose irrelevant."
	Link[s] omitted

Richard Burns -v- George Anthony and Eugenia Anthony [1997] EWCA Civ 2106
15 Jul 1997 CA	Land, Limitation
	Link[s] omitted

Sydney Edgar Hill -v- David Rosser [1997] EWCA Civ 2187
24 Jul 1997 CA	Land, Limitation
	Link[s] omitted

Ion Curtis Roach -v- Sotheby and Co [1997] EWCA Civ 2313
26 Aug 1997 CA	Limitation
	Refusal of appeal for case out of time.
	[ Bailii ]

Vosnoc Ltd -v- Transglobal Projects Ltd
27 Aug 1997 QBD	Arbitration, Limitation
	A mere statement that a dispute was to be referred to arbitration, or a notice requiring a reference to arbitration, was not enough to constitute a reference to or commencement of an arbitration.
	Arbitration Act 1996 12(3) - Limitation Act 1980 34(3)(a)

Halstead (for Himself and Others, the Members of the Whalley Range Methodist Church Council and for the Custodian Trustees for Methodist Church Purposes) -v- Council of City of Manchester [1997] EWCA Civ 2555
23 Oct 1997 CA	Land, Damages, Limitation	Casemap 1 Cites
	Land had been compulsorily purchased, and the compensation agreed, but after long delays in payment, not as to the calculation of interest. Held: Interest would be payable from the date of entry. The limitation period arose only once the amount of interest payable was agreed.
	Compulsory Purchase Act 1965 11(1) - Limitation Act 1980 9(1)
	Link[s] omitted

Knapp -v- Ecclesiastical Insurance Group Plc and David Smith (Trading As David Smith Insurance Brokers) [1997] EWCA Civ 2616; [1998] PNLR 172
30 Oct 1997 CA Hobhouse LJ	Professional Negligence, Limitation	Casemap 1 Cites 1 Citers
	A claim in negligence was brought against insurance brokers for failing to advise the claimant of certain matters with the result that an insurance policy entered into by the claimant was voidable for non-disclosure. Held: The claimant suffered damage when the policy was entered into: "the cause of action can accrue and the plaintiff have suffered damages once he has acted upon the relevant advice "to his detriment" and failed to get that to which he was entitled. He is less well off than he would have been if the defendant had not been negligent. Applying this to the present case, the plaintiffs paid their renewal premium without getting in return a binding contract of indemnity from the insurance company. They had acted to their detriment: they did not get that to which they were entitled. The fact that how serious the consequences of the negligence would be depended upon subsequent events and contingencies does not alter this; such considerations go to the quantification of the plaintiffs' loss not to whether or not they have suffered loss. The risk of loss existed from the outset and in the absence of better evidence would have to be evaluated and assessed as a risk and damages awarded accordingly."
	Link[s] omitted

Binning Bros Limited (In Liquidation) -v- Thomas Eggar Verrall Bowles (a Firm) [1997] EWCA Civ 2688
11 Nov 1997 CA	Trusts, Limitation, Contract	Casemap 1 Cites
	Link[s] omitted

Walker and Another -v- Howard and Another
13 Nov 1997 CA	Limitation
	Time for filing of statement of claim can be extended beyond time for expiry of limitation period.

Hazel Constance Tipper -v- North Staffordshire Area Health Authority [1997] EWCA Civ 2855
28 Nov 1997 CA	Personal Injury, Limitation
	Link[s] omitted

Price -v- United Engineering Steels Limited; J J Habershon and Sons Limited [1997] EWCA Civ 2983
12 Dec 1997 CA Brooke, Waller LJJ	Personal Injury, Limitation
	Appeal by the Plaintiff from an order refusing to make a direction under section 33 of the Limitation Act 1980 disapplying section 11 of the Act in relation to the Plaintiff’s action against the Defendants for damages for personal injuries.
	Limitation Act 1980 33 811
	Link[s] omitted

Neil Anderson -v- Associated Co-Operative Creameries Limited [1997] EWCA Civ 2992
15 Dec 1997 CA	Limitation
	Limitation Act 1980 11 14
	Link[s] omitted

Lloyds Bank Plc -v- Wiktor Jozef Wojcik (Male) Alodia Krystyna Wojcik (Female) [1997] EWCA Civ 3065
19 Dec 1997 CA Lord Justice Evans And Mr Justice Wilson	Limitation	Casemap 1 Cites
	The defendants appealed a judgment giving the claimants possession of their property under a charge. The first defendant had been refused leave to amend his defence to argue a limitation point. The second defendant claimed she had been inveigled into signing the charge by the bank manager. Held: The first defendant should have been given leave to amend his defence. Difficulties in the rules could deny justice to a defendant, and the court could use its discretion to extend the limitation period. Appeal allowed.
	Link[s] omitted