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 claim issued outside six-year limitation period – Judge granting summary judgment – Court of Appeal dismissing appeal – Appellants appealing – Whether, where cause of action accruing at, or on expiry of, midnight hour at end of day, following day counting towards limitation period – Appeal dismissed
The appellants brought an action claiming damages for breach of trust. Proceedings were issued on Monday 5 June 2017. The alleged breach was found to have occurred on 2 June 2011. Under the Limitation Act 1980, actions brought in tort, contract and breach of trust could not be brought after the expiration of six years from the date on which the cause of action accrued. 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 was, 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 was excluded. In the present case, if a cause of action accrued at the very first moment of Friday 3 June 2011, 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 High Court held that the action had been commenced out of time: [2017] EWHC 3527 (Ch).
The Court of Appeal upheld that decision, concluding that Friday 3 June 2011 should be included in the limitation period. In cases where a cause of action accrued part-way through a day, that day was ignored in the calculation of time for limitation purposes. But a different rule applied where the cause of action accrued at, not after, midnight (a midnight deadline case). In such a case, the day following the expiry of the midnight deadline should be included for limitation purposes, as it was a whole day: [2019] EWCA Civ 475; [2019] PLSCS 55. The appellants appealed.
Held: The appeal was dismissed.
(1) The authorities established that, where a cause of action accrued part-way through a day, that day was excluded for limitation purposes. However, none of those cases considered the position in relation to midnight deadline cases, where in practical terms the day of accrual was a complete undivided day. The only midnight deadline case was Gelmini v Moriggia [1913] KB 549, in which the High Court held that, as a cause of action could be brought throughout the day following the expiry of the midnight deadline, that day should be included for limitation purposes. Therefore, Gelmini was an exception, applicable in midnight deadline cases, to the general rule that the day of accrual was normally excluded for limitation purposes. Insofar as it was disapproved in later cases, it ought to have been distinguished as laying down an exception to the general rule: Kaur v S Russell & Sons Ltd [1973] QB 336 and Marren v Dawson Bentley & Co [1961] 2 QB 135 considered.
It was not surprising that there were conflicting views as to the date upon which the cause of action accrued in a midnight deadline case. There were potentially differing answers to that question in Gelmini. However, it was not necessary to endorse any of the competing answers because whether the cause of action accrued at the expiry of 2 June 2011 or at the very start of 3 June 2011, there was no significant difference, in that 3 June 2011 was for practical purposes a complete undivided day.
(2) The reason for the general rule which directed that the day of accrual of the cause of action should be excluded from the reckoning of time was that the law rejected a fraction of a day. The justification for that rule was that it was intended to prevent part of a day being counted as a whole day for limitation purposes, thereby prejudicing the claimant and interfering with the time periods stipulated in the Limitation Act. However, in the present case it was 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. 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, that would not only be impermissible metaphysics but also, in this context, such a minimum period of time did not cross the threshold as capable of being recognised by the law. Whether the issue was framed in terms of metaphysics, which the common law eschewed, or of the principle that the law did not concern itself with trifling matters, the conclusion was the same: realistically, there was no fraction of a day. That being so, the justification in relation to fractions of a day did not apply in a midnight deadline case.
(3) There was no long-standing authority which excluded a whole indivisible day. If a full undivided day in a midnight deadline case was to be excluded from the computation of time then the limitation period would be six years and one complete day. 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. Further, the impact of excluding 3 June 2011 could be seen by applying the criteria suggested in Radcliffe v Bartholomew [1892] 1 QB 161, of imagining a limitation period of one day: in the present case, the impact of that would be to allow two complete days within which to commence an action.
Accordingly, Gelmini was an exception to the general rule so that any part of a day (but not a whole day) happening after the cause of action accrued was excluded from the calculation of the limitation period for the purposes of the provisions of the Limitation Act with which this appeal was concerned. The 3 June 2011 was a whole day to be included in the computation of the limitation period.
Jeremy Cousins QC and Christopher McNall (instructed by Steele & Son with Bagot Heyes Solicitors of Clitheroe) appeared for the appellants; Clare Dixon QC and Nicholas Broomfield (instructed by Mills & Reeve LLP) appeared for the respondents.
Eileen O’Grady, barrister
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