LIMITATION: WHAT A DIFFERENCE A DAY MAKES: LIMITATION PERIOD STARTS TO RUN ON DAY CAUSE OF ACTION BEGINS

In Matthew & Ors v Sedman & Ors [2017] EWHC 3527 (Ch) His Honour Judge Hodge QC (sitting as a Judge of the High Court) had to consider an interesting issue in relation to limitation.

 “… where it is absolutely clear that the cause of action arises at the very beginning of a particular day, that day should not be excluded from the calculation for Limitation Act purposes. At any moment during that day the claimant can bring a claim; and to exclude that day from the calculation for Limitation Act purposes would have the effect of giving him an extra day over and above the statutory limitation period for bringing the claim”

THE CASE

The claimants brought an action claiming, amongst other things, damages for breach of trust.  The judge found that the alleged breach had occurred on the 2nd June 2011.  Proceedings were issued on the 5th June 2017  (a Monday).  The defendants made an application for summary judgment, arguing that the action was statute barred.

THE ISSUE THE COURT HAD TO DETERMINE

The judge summarised the issue:-

1. “The application which is presently before the court raises a short but interesting and not unimportant point on the law of limitation. The question is this: when a cause of action is completely constituted at the very first moment of a particular day, does that day fall to be included when calculating the applicable six years’ limitation period or does it fall to be excluded? More pertinently for present purposes, if a cause of action accrued at the very first moment of Friday 3^rd June 2011, is a claim issued after Friday 2^nd June 2017 brought after the expiration of six years from the date on which the cause of action first accrued?”

THE JUDGMENT ON THIS ISSUE

1. I therefore deal with the real matter in issue between the parties. I am satisfied that the cause of action accrued at the first moment of 3^rd June 2011. The claimants had had to issue their claim form before the expiration of six years from that date. In the event, it was issued on Monday 5^th June 2017. Although, if the limitation period had expired on Saturday 3^rd June, that would have been sufficient to defeat the operation of the Limitation Act, if the expiration of the period of six years from the date the cause of action accrued was Friday 2^nd June 2017, then the claim is out of time. If, however, the expiration of six years from the date the cause of action accrued was Saturday 3^rd June 2017, then, because for limitation purposes one disregards days when the court office is closed, the claim was validly issued on Monday 5^th June 2017. The question is whether one excludes 3^rdJune 2011 from consideration for Limitation Act purposes. Mr McNall submits that one should; Miss Dixon disputes that.

2. It seems to me that in principle the expiration of the period of six years from the date the cause of action accrued was indeed Friday 2^nd June 2017. If one goes back to the year 2011, the time for submitting a claim form had expired at the end of Thursday 2^nd June 2011. The trustees could in principle have issued a valid claim form on Friday 3^rd June 2011. They had six years from, and including, that day to do so. They did not issue the claim form until the Monday following Saturday 3^rd June 2017. A claim form issued on Saturday 3^rd June 2017 would, it seems to me, in principle have been issued more than six years from the day on which the cause of action arose because the cause of action had arisen at the very first moment of Friday 3^rd June 2011.

3. Does the fact that the courts have established a rule that one excludes the date on which the cause of action arose change the position? Miss Dixon says that that rule only applies where the cause of action arose during the course of the day, and not when it arose at the very first minute of the day. I can see the good sense of a rule that, if the cause of action arose during the course of a day, you exclude that day for the purpose of calculation for Limitation Act purposes. If you do not exclude the day, then the claimant would not have a full six years period within which to bring his cause of action. But if the cause of action accrues at the very first moment of that day, then he does have the full six years, even if you exclude that day from the computation.

4. Mr McNall points to possible uncertainties as to when a cause of action accrues during the course of a particular day, and to the convenience of a rule whereby you exclude any part of that day from the calculation for Limitation Act purposes. I can see the good sense of that where there may be difficulty in establishing the precise point in time during the day when the cause of action arose, and also in cases where it is necessary to exclude that day to ensure that the claimant has a full six years period, and not a six years period less the number of hours of the day in question before the cause of action arose. Where, however, it is absolutely clear that the cause of action arose at the very instant the day began, it does not seem to me that there is any justification for excluding that day from the calculation for Limitation Act purposes. I note that in Marren, counsel for the plaintiff, at page 137, had submitted that Gelmini was a case in contract, where the cause of action was complete at the beginning of the first day and an action could have been brought on that day. In tort, the cause of action may not accrue until late in the day, and on the hypothesis that the limitation period was reduced to one day the position would be absurd, for no action would then lie. Therefore, Gelmini should be distinguished, and the reasoning of the court in Radcliffe –v- Bartholomew applied.

5. Mr Justice Havers does not appear to have adopted that argument in arriving at his considered decision; but the argument shows that Gelmini was distinguishable from Marren and that the two cases are capable of being reconciled in the manner that the author of McGee on Limitation Periods explains.

6. In my judgment, where it is absolutely clear that the cause of action arises at the very beginning of a particular day, that day should not be excluded from the calculation for Limitation Act purposes. At any moment during that day the claimant can bring a claim; and to exclude that day from the calculation for Limitation Act purposes would have the effect of giving him an extra day over and above the statutory limitation period for bringing the claim. I therefore accept Miss Dixon’s argument that where the cause of action is complete at the very beginning of a particular day, you exclude that day for the purposes of calculating the limitation period. On that footing, the limitation period in the present case began on 3^rd June 2011 and expired at the very end of 2^nd June 2017. On that basis, the last day for issuing the claim form was Friday 2^nd June 2017, and this claim is out of time.

7. I am not sure that the appropriate relief to grant is to strike out the claim under CPR 3.4(2)(a) on the footing that the statement of claim discloses no reasonable cause of action because it does not actually identify the day when the claim under the scheme was barred. But it does seem to me that it is appropriate to grant summary judgment to the defendants on their Limitation Act defence, in relation only, of course, to the Welcome claim and not to the Cattle’ claim, which the defendants accept was brought in time.

8. Those are my reasons for upholding the claim for summary judgment.