Regular readers of this blog would reasonably suppose that lawyers like to live dangerously – leaving tasks to the last minute (and sometimes beyond). An example of this can be seen in the judgment today in Matthew & Ors v Sedman & Ors [2021] UKSC 19. The court had to determine whether fractions of a day (arguably even fractions of a second) were relevant when the claimants issued right at the end of a six year limitation period.
“I consider that it would impermissibly transcend practical reality if the stroke of midnight or some infinitesimal division of a second after midnight, led to the conclusion that the concept of an undivided day was no longer appropriate. In that sense this would not only be impermissible metaphysics but also, in this context, such a minimum period of time does not cross the threshold as capable of being recognised by the law. Whether the issue is framed in terms of metaphysics, which the common law eschews, or of the principle that the law does not concern itself with trifling matters, the conclusion is the same: realistically, there is no fraction of a day”
THE CASE
The defendants were former trustees of the claimant trust. In 2008 they should have made a claim against a third party under a scheme of arrangement. That application could have been made up to midnight on Thursday 2nd June 2011. The defendants failed to do so. There was a six year limitation period for the action.
THE ISSUE OF PROCEEDINGS AGAINST THE DEFENDANTS
The claimant trust issued proceedings against the defendants on Monday 5th June 2017. Because proceedings can only be issued when the court is open the key issue was whether Friday 3rd June 2017 was counted in the limitation period. If it was then proceedings were issued in time, if it was not then the action was statute barred.
THE COURT OF APPEAL
The Court of Appeal held that Friday the 3rd June 2011 should be included in the limitation period. In cases where a cause of action accrues part-way through a day then that day is ignored for limitation purposes. The relevant part of the action was issued out of time.
THE SUPREME COURT UPHELD THE COURT OF APPEAL’S DECISION
The Supreme Court upheld the Court of Appeal’s decision. Proceedings were issued out of time. Lord Stephens gave the single judgment.
It is not surprising that there are conflicting views as to the date upon which the cause of action accrues in a midnight deadline case. There were potentially differing answers to that question in Gelmini (see para 32 above). In this case the issue was decided in different terms both at first instance (see para 16 above) and in the Court of Appeal (see para 18 above). For my own part I would prefer the approach of Underhill LJ that “the cause of action arises at, not after, midnight”. However, it is not necessary to endorse any of the competing answers to that issue and I do not do so, because, as in Gelmini, whether the cause of action accrued at the expiry of 2 June 2011 or at the very start of 3 June 2011 there is no significant difference, in that 3 June 2011 was for practical purposes a complete undivided day.
47. I consider that the reason for the general rule which directs that the day of accrual of the cause of action should be excluded from the reckoning of time is that the law rejects a fraction of a day. The justification for that rule is straightforward; it is intended to prevent part of a day being counted as a whole day for the purposes of limitation, thereby prejudicing the claimant and interfering with the time periods stipulated in the Limitation Act 1980. However, in this case it was, in my opinion correctly, submitted that in a midnight deadline case even if the cause of action accrued at the very start of the day following midnight, that day was a complete undivided day. I consider that it would impermissibly transcend practical reality if the stroke of midnight or some infinitesimal division of a second after midnight, led to the conclusion that the concept of an undivided day was no longer appropriate. In that sense this would not only be impermissible metaphysics but also, in this context, such a minimum period of time does not cross the threshold as capable of being recognised by the law. Whether the issue is framed in terms of metaphysics, which the common law eschews, or of the principle that the law does not concern itself with trifling matters, the conclusion is the same: realistically, there is no fraction of a day. That being so, the justification in relation to fractions of a day does not apply in a midnight deadline case. During oral submissions Mr Cousins QC, in answer to an enquiry from Lady Arden seeking to identify the rational justification for excluding a whole indivisible day from the calculation of the reckoning of time, sought to do so based on continuing the application of the rule, as he submitted it had been understood since the 18th century, so that in relation to something as important as limitation there should be continuity of interpretation. I reject the premise to that submission. As I have indicated there is no long-standing authority which excluded a whole indivisible day. Furthermore, I consider that the premise is undermined by the decision of Channell J in Gelmini. So, I reject this argument as a sufficient justification for excluding a whole day from the reckoning of time in a midnight deadline case. Rather, I prefer to consider the impact of holding that a full undivided day in a midnight deadline case is to be excluded from the reckoning of time. If that day were excluded from the computation of time then the limitation period would be six years and one complete day. I consider that would unduly distort the six-year limitation period laid down by Parliament and would prejudice the defendant by lengthening the statutory limitation period by a complete day.
48. I also consider that the impact of excluding 3 June 2011 can be seen by applying the criteria suggested in Radcliffe of imagining a limitation period of one day. If in this case 3 June 2011 were excluded from the computation and if the limitation period were a single day, then the impact would be to allow two complete days within which to commence an action (see para 36 above).
49. I consider that Gelmini is an exception to the general rule so that any part of a day (but not a whole day) happening after the cause of action accrues is excluded from the calculation of the limitation period for the purposes of the provisions of the Limitation Act with which this appeal is concerned. The 3 June 2011 was a whole day so that it should be included in the computation of the limitation period.
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