Practice and procedure
Time limits
Court of Appeal (Civil Division)
20 March 2019
Practice and procedure – Issue of proceedings – Time limits – Appellants bringing action for breach of trust – Action accruing at expiry of midnight deadline – Respondents applying for summary judgment on basis that action statute-barred as claim issued outside six-year limitation period – Judge upholding claim for summary judgment as action out of time – Appellants appealing – Whether, when cause of action completely constituted at first moment of particular day, day to be excluded in calculating six-year limitation period – Appeal dismissed
The appellants brought an action claiming, amongst other things, damages for breach of trust. Proceedings were issued on 5 June 2017 (which was a Monday) claiming equitable compensation, damages for breach of trust, an order for the reconstitution of the trust estate, an account, and further or other relief, with interest and costs. The judge found that the alleged breach had occurred on 2 June 2011. The respondents applied for summary judgment, arguing that the action was statute-barred as the claim had been issued outside the six-year limitation period.
The principal question for the court was whether, when a cause of action was completely constituted at the very first moment of a particular day, whether that day fell to be included when calculating the applicable six years’ limitation period or fell to be excluded. More pertinently for present purposes, if a cause of action accrued at the very first moment of Friday 3 June 2011, whether a claim issued after Friday 2 June 2017 was brought after the expiration of six years from the date on which the cause of action first accrued.
The judge found that, although the bar date was the very end of 2 June 2011, the cause of action had accrued for the purposes of the limitation period at the very start of 3 June 2011; and since the six-year limitation period had therefore expired at the end of 2 June 2017, the action had been commenced out of time: [2017] EWHC 3527 (Ch).
The appellants appealed, contending that the day on which an action accrued was not counted for limitation. Even in a “midnight deadline” case, the claim did not accrue until after midnight and thus (however shortly) into the day following midnight. Unless there were specific provisions requiring it to do so, the law did not take cognisance of parts of a day; established rule carried the benefits of simplicity and clarity.
Held: The appeal was dismissed.
(1) When ascertaining when a cause of action accrued in the context of calculating the applicable limitation period, a “midnight deadline” case was different from other types of case. The deadline provided a categorical indication that the action had accrued by that point in time, rather than accruing on the day following midnight. In such a case, no fractions of a day arose and it was wrong to attribute the accrual of the cause of action to the day after the relevant midnight for the purposes of calculating the applicable limitation period: Dodds v Walker [1981] 1 WLR 1027 applied.
(2) There was a clear distinction between the case where a cause of action accrued at the stroke of midnight, because it was based on a failure to do something by the end of the specified day, and the case where the cause of action accrued part-way through the day. In the latter case, it was well established that for limitation purposes the date on which the cause of action accrued was ignored. In a midnight deadline case, the cause of action arose at the commencement of the day; at, not after, midnight: Gelmini v Moriggia [1913] 2 KB 549 applied. Kaur v S Russell & Sons Ltd [1973] QB 336 distinguished. Marren v Dawson Bentley & Co [1961] 2 QB 135 considered. The general approval in Kaur of the decision in Marren, in which the court had disapproved Gelmini and considered that ignoring the date that the cause of action accrued was a rule of general application, was not authoritative as regards the instant issue.
(3) In the present case, the appellants’ cause of action was complete at the very end of 2 June 2011. It had therefore accrued at the very start of the following day 3 June 2011, which was to be included in calculating the applicable limitation period. It followed that the judge had been right to find that the six-year limitation period had expired on 2 June 2017 and that the action was time-barred.
(Per Underhill LJ) Even in a case where the cause of action arose very early in the relevant day, that day fell to be excluded. There was no rational basis on which to distinguish between fractions of a day that were or were not sufficiently big to count. However, the question did not arise in this case, because the essential point was that there was no part of the day during which the appellants did not enjoy their cause of action.
Jeremy Cousins QC and Christopher McNall (instructed by Steele & Son with Bagot Heyes Solicitors, of Barnoldswick) appeared for the appellants; Clare Dixon and Nicholas Broomfield (instructed by Mills & Reeve LLP) appeared for the respondents.
Eileen O’Grady, barrister
Click here to read a transcript of Matthew and others v Sedman and others
