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• Author: Ranjeet Johal

Further clarification on the Limitation Act

The Limitation Act 1980 – further clarification

The recent decision by the Court of Appeal in Page and Others v Hewetts Solicitors and Another [2012] EWCA Civ 805 provided further clarification on the role the court office plays in a Claimant’s compliance with the Limitation Act 1980.

Facts

The Defendant firm acted for the Claimants in the administration of their late father’s estate. The estate comprised of various assets including a property and an adjoining plot of land. The solicitor acting for the Claimants (the Second Defendant – Mr Fuller) arranged for the adjoining land to be sold through an estate agent to a developer. Completion took place on 12 March 1999. It later transpired that Mr Fuller had connections with both the estate agent and the developer. As such, he had received a substantial sum by way of commission from the developers. It was also alleged that the land had actually been sold at a large undervalue (in the region of £160,000) and that the Claimants had been unaware of the actual value of the land due to Mr Fuller’s misconduct and negligent advice.

The Claimants sought to issue their claim in November 2008. However, the court office did not receive the claim form and additional papers when they were sent by the Claimant’s solicitors in December 2008 and so could not issue the claim. The papers were re-sent in February 2009 and the claim was eventually issued on 17 February 2009.

The Defendants applied for summary judgment on the basis that the claim form had been issued out of time and, as such, the Claimants were time-barred from issuing their claim. The Master granted summary judgement, stating that he was satisfied on the balance of probabilities that the claim form did not reach the court office in time. His decision was upheld on appeal in the High Court and a subsequent appeal was made to the Court of Appeal.

Decision

The Court of Appeal allowed the Claimants’ appeal, and ruled that both the Master and the High Court had applied the wrong test. As the application by the Defendants had been for summary judgment, the correct test to be applied was ‘no real prospect of success’, as opposed to ‘on the balance of probabilities’. Due to the nature of the evidence, the Claimants would have been able to demonstrate that there was a real prospect of success and that the documents had been delivered to the court office in time. The Court of Appeal considered that all of the issues considered by the Master and the High Court were issues that needed to be decided at trial.

Comment

The Claimants’ claim will now be considered at trial, and the Defendants will have the opportunity to put forward a Defence on the basis that, amongst other things, the claim was time barred. This will depend on the evidence of the Claimants’ solicitors as to the delivery of the claim form to the court office.

This case gives a clear indication as to the Court’s opinion of the Limitation Act 1980. The Court of Appeal stressed that the Limitation Act gives clear guidance and should be followed ahead of the CPR. The decision in Barnes v St Helens Metropolitan Borough Council [2006] EWCA Civ 1372 was referred to and Tuckley LJ’s judgment was cited. In that case, it was held that a claim is ‘brought’ for the purposes of the Limitation Act when the claimant’s request for the issuing of a claim form, together with the court fee, is delivered to the court office. Once the claimant has done this, any action taken by the court office is out of his control, and should be viewed as such. Essentially, the claimant’s risk stops once the request has been delivered.

It is important for practitioners to take steps to ensure that the actual date of delivery of a claim form to the court office is recorded on some form of receipt. This will prove useful at a later stage should they face a Defence based on limitation periods. Alternatively, practitioners should ensure that any claim is issued promptly and well within any limitation period!

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