In contract law there is a six-year limitation period from the date of the breach unless the contract is, or is expressed to be, executed as a deed, in which case it is 12 years from the breach. Clear enough so far.
If the claim is in tort, the limitation period is six years from the date of the damage, or three years for personal injury (still with me?). But for latent damage, the period is three years from the date the damage was reasonably discoverable, subject to a maximum 15 years from the date of the act or omission. Again, there are exceptions for personal injury.
Have I lost you yet? Hopefully not, because that's just the start of it. There are further exceptions for fraud, mistake, deliberate concealment, and third-party contribution claims, to say nothing of those statutes that impose their own special limitation periods. You've got the picture – it is a jungle of rules, exceptions and exceptions to exceptions.
Thankfully, the Law Commission's proposals for reform are galloping to our rescue. The aim is to simplify the rules determining limitation periods and to address some old injustices. The proposals stipulate a three-year limitation period (the "primary" period), to apply to tort and contract, to run from the date of "discoverability", with an overall maximum claim period of 10 years (the "long stop") from the tortious act or breach of contract. There is some fine-tuning – for example, concerning personal injury, dishonest concealment and claimant disability, but the basic rules apply with welcome consistency. There is a hope we could all finally get a handle on limitation.
The proposals generally strike a fair balance. Claimants would normally be protected from those cases where they are time-barred before they even discover the problem. But they cannot now drag their feet. After investigations, collection of evidence, attempted negotiations and the formulation of a claim, three years can pass in a flash.
The period within which a claimant can bring an action is a jungle of rules, exceptions and exceptions to exceptions
Apart from having fewer opportunities to call time on a newly discovered claim, defendants may also be disadvantaged by the shorter three-year primary period. Claimants may rush into proceedings in order to meet the time bar when they might otherwise have lost enthusiasm over the years. On the other hand, the long stop applicable now to contract claims, rather than only to tort, works in a defendant's favour.
On 25 April, the House of Lords in Cave vs Robinson reversed the injustice illustrated by Jeffrey Brown (8 March, pages 48-49) concerning dishonest concealment. Similarly, the proposals sensibly provide that concealment of an error by a defendant must be intentional before it can be subjected to an extended limitation period.
The proposals are a great leap forward, but there is room for improvement. The limitation period runs from reasonable "discoverability" (being the date the claimant knew, or, bearing in mind its circumstances and ability, should have known) of the cause of action. Clairvoyancy is required here on the part of the defendant who may know little about the claimant's circumstances, let alone its abilities, which presumably could include even intellectual capacity!
This uncertainty for the defendant means the long stop is more important than ever. Yet there is a provision to allow the parties to contract out of that – voluntarily, of course, but we all know what that amounts to when the carrot of a new job is swung before the nose.
Melinda Parisotti is an in-house barrister at Wren Managers, which manages a professional indemnity mutual for architects.