Tag Archives: Limitation Act 1980

Court issued claim within limitation period despite wrongness of fee

In a case where a Claimant innocently fails to pay the correct court fee close to the end of a limitation period the question may arise whether that action was “brought” within the limitation period. Much will turn on which of the following two periods the problem arises in:

A) The period between:
(i) when the Claimant submits the claim form and puts forward the insufficient fee and
(ii) the Court issuing proceedings.

Here the failure to tender the correct fee will prevent any finding that the action has been “brought” for the purposes of the Limitation Act 1980 unless the Court actually issues the proceedings notwithstanding the fee being inappropriate; and

B) The period after the Court issues the proceedings.

Here the mere fact that the fee proffered by the Claimant and accepted by the Court:
(i) is less than should have been tendered and accepted for the claim identified in the Claim Form or
(ii) becomes so because of a subsequent increase in the quantum of the actual claim(s) advanced in the proceedings prior to the end of limitation period

does not prevent the action from being “brought” for the purposes of the Limitation Act 1980 when it is issued by the Court.

In Dixon & Anor v Radley House Partnership (A Firm) & Ors [2016] the High Court Judge said “where (a) abusive conduct is not present and (b) the court sets the wheels of justice in motion by issuing proceedings but (c) the Claimant has not paid and the Court has not required the correct fee, I reject the submission that an action is not brought for the purposes of the Limitation Act 1980 at the moment of issue.”

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Contractual limitation clause did not trigger defence under Section 1(3) of the Limitation Act 1980

In a construction case a typical limitation clause in a collateral warranty said:

“Notwithstanding the date hereof no proceedings shall be commenced against the Contractor after the expiry of twelve years from the date of issue of the last written statement by the Client that practical completion of the Project has been achieved under the Contract”.

This presented a procedural bar to any right the beneficiary of the warranty may have against the contractor being enforced in proceedings brought by the beneficiary issued after the cut-off time.

In the case of Bloomberg LP v Malling Pre-Cast Ltd [2015] the High Court ruled that this clause did not of itself extinguish the underlying substantive right, which might remain.

So, in proceedings by the beneficiary of the warranty against them, the project’s engineers might issue Part 20 proceedings against the scheme’s contractor claiming a contribution under section 1 of the Civil Liability (Contribution) Act 1978 and the limitation clause did not prevent that.

So the contractor had not demonstrated that the engineer had no real prospect of succeeding in its Part 20 Claim.

Outwith the clause, it may be that issues of limitation would arise later in the Part 20 proceedings or even in the main action but it was too early in the proceedings to say.

If as a matter of general law, the contractor could be said to have “ceased to be liable by virtue of the expiry of a period of limitation or prescription which extinguished the right on which the claim against” the contractor was based, this would entitle the contractor to a limitation defence under the proviso contained in section 1(3) of the Limitation Act 1980, quite independently of warranty’s limitation clause, in respect of the damage.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.