INTRODUCTION

This notoriously arcane body of law concerns the simple question: ‘how long do I have before, not having issued proceedings in time, I must suffer the fate of “having missed the boat”?’ Baroness Hale described this area of law as ‘complicated and incoherent’ in AB v. Ministry of Defence (2012). The author disagrees in part and would suggest that the topic is ‘complicated but pragmatic’.

It is contrary to public policy for stale actions to be brought concerning remote past events. An aggrieved person's capacity to bring civil proceedings in respect of a wrong or some other matter must be restricted, just as there should be no re-litigation of matters already adjudicated. There must be a time-limit to commencement of civil proceedings, just as there must be a bar upon re-litigation of matters which have already been litigated.

The system of limitation of actions is supported by the following elements of policy. First, it is unfair and uncivilised for potential defendants to be threatened by possible proceedings for too long. They should be allowed to get on with their lives, or commercial or governmental activity. Secondly, stale legal claims tend to bring the system of civil justice into disrepute. A long interval between the relevant events and commencement of proceedings reduces the chance of any court penetrating to the factual core of a dispute. In the meantime witnesses might have died, disappeared or forgotten the relevant events. Unfortunately, there have been instances of English civil cases proceeding where the material facts occurred nearly 30 years before. Of these two arguments for limitation, the first is the stronger. In practice, problems of proof are met by the fact that the claimant will bear the burden of proof substantiating the claim.

BASIC CONCEPTS OF LIMITATION OF ACTIONS

FIXED PERIODS

The English limitation rules govern civil proceedings in the English County Courts and High Court, as well as arbitration proceedings governed by the Arbitration Act 1996. These rules operate by reference to fixed periods, normally a number of years. The prospective claimant must issue civil proceedings, that is, issue a claim form, before the relevant period elapses.