16 Comments
Apr 2, 2023Liked by Katy Barnett

What a fertile topic! English law - and Scots law too - have got their judicial knickers in a real twist about adding extra potential time to the normal fixed limitation period, not to penalise a plaintiff/claimant/pursuer whose cause of action 'accrued' (so time started to run) before they were or could reasonably been aware of a possible claim. Symptoms which present themselves years later (cracks in the walls) of inadequate foundations in a building is the classic example, or physical symptoms long after - but provably caused by - negligent medical treatment. How to devise a test which defines how much knowledge (and, equally importantly, its significance and how a reasonable person ought to react: "I'd better get a surveyor to look at this right away") starts extra time running in order to mobilise towards litigation: astonishingly difficult.

Expand full comment
author

As one may imagine - I have LOTS to say about this, analogising with date of assessment of damages and mitigation. I think there are remarkable parallels which might be helpful.

Expand full comment
Apr 2, 2023Liked by Katy Barnett

I am fascinated by the apparent distinction between common law systems, where - as you say - time running out bars civil legal action, and systems derived from, or influenced by, Roman law. So Scots law, as well as the idea of limitation, also has the idea of prescription, where after five years (in the standard civil action), the obligation to provide reparation itself comes to an end. I suspect that in practical terms, it means that judges will of their own motion stop an action which is already prescribed, not relying on the defender to raise this as a defence. But conceptually?

Expand full comment
author

Oh I think I am going to have to research this more. Fascinating.

Expand full comment
Apr 2, 2023Liked by Katy Barnett

Excellent!!

Expand full comment
author

Thank you.

Expand full comment
Apr 2, 2023Liked by Katy Barnett

Because limitation issues get parked in a box marked 'litigation: procedure', their relevance to other remedies issues probably haven't been adequately explored. Happy to supply some background on English law when and if you're ready.

Expand full comment
author

Yes please! Seriously, I think this must be written on.

Expand full comment

Your reply makes me think of a New Idea, or at least new to me, that might be writeworthy.

A major conventional explanation for a statute of limitations, whether via laches or a statute, is that otherwise it's hard for the defendant to collect evidence to defend himself with.

A problem with that explanatoin is that it's also hard for the plaintiff to collect the evidence with which to prove his case, and he even has the burden of proof.

To be sure, we might say that as it becomes hard for both sides to have good evidence, we shouldn't waste the court's time with increasing hard cases.

But we really have another idea at hte back of our heads, an equitable one. It is that we don't want to reward purposeful delay that makes deciding cases more expensive and less accurate. We don't want the plainitff to purposely delay, after collecting his own evidence, to make it hard for the defendant. So it is really the bad intent that we are concerned about. And the situation i asymmetric, because the defendant can't control when hte suit is filed, so he can't use that same strategy.

But maybe he can. A "proof" of the theory would be what we'd do if we had a case where the defendant purposely dallied with the plaintiff and made as if he was going to settle without need for lawyers, but really was just dragging things out till the defendant had his legal defense rock solid nad had obscured the trail for the plaintiff. This, the theory predicts, judges and our sense of justice should call as laches for the plaintiff. He should be able to win even with less evidence if he can show the defendant made it harder to get good evidence. And, he should be able to get the statute of limitations suspended maybe even, tho with hard deadlines, it's more fair game for the defendant to drag things out.

What do you think ?

Expand full comment
author

I like it. I am a little worried about the capriciousness of the statute of limitations - I prefer the balancing approach of equity more - but then I am basically an equity lawyer, despite my passion for contract damages.

That being said, the Statute of Limitations covers situations where the defendant had made the wrong hard to find, or it can’t be discovered until a certain point. The limitation period starts from then. Courts are also quite generous re fraud. But you are making me want to write with a theory of all of this… What’s going on? It relates to my interest in date of assessment of damages - which also shifts depending on whether the plaintiff can do anything about the wrong or if it’s been hidden. I think they’re all interlinked concepts of justice.

Expand full comment
author

Also - I have other ideas about various cases where defendants did actually destroy evidence, hide their tracks or lie to the plaintiff: Harris v Digital Pulse Ltd is an Australian one, Morris-Garner v One Step Support Ltd is an English one. Generally the law seems to deal with this at the remedial stage, but it doesn’t know quite how to do so (as both cases illustrate).

In Harris, two employees breached their contractual and fiduciary duties of loyalty and diverted Digital Pulse’s business to their own business. When Digital Pulse sued, the defendants destroyed evidence of the profit, so the plaintiff couldn’t fully get them to disgorge the profits they’d made. The trial judge awarded exemplary damages instead: but the NSW Court of Appeal overturned that (I think, incorrectly, but there you go).

In Morris-Garner, again, a former employee of a company breached the negative covenant by which she promised not to compete with One Step Support for a certain period. When One Step’s lawyers contacted her to ask if she was competing, she lied and said she was not, and so had an extra year to make profit. The UKSC awarded difference in value damages between the situation One Step would have been in had the covenant been kept and the situation they were actually in. I think this is doctrinally correct, but it concerns me that they got an extra year of profit in by lying about the wrong and hiding their tracks.

Expand full comment

In laches, is another part of loss of the right to action with prejudice when the victim has purposely let time go by so as to make it harder for the perpetrator to defend himself? If the victim waits, but not with bad intent, can laches result?

Expand full comment
author

So - that’s a really interesting question!! There’s Australian authority to suggest that it might be a problem in the context of an account of profits in Murdoch v Mudgee Dolomite Lime [2022] NSWCA 22 http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCA/2022/12.html, but the English Court of Appeal just doubted it in Recovery Partners GP Limited v Rukhadze [2023] EWCA Civ 305, [80] - [81]: https://caselaw.nationalarchives.gov.uk/ewca/civ/2023/305 The key, the court suggests is whether it’s inequitable, and if it’s not - it’s no problem.

Expand full comment

I should look at those cases. I'm thinking-- I could be wrong-- that in equity, to be inequitable requires two things:

1. an objectively unjust effect

2. an intention to be unjust

But that's not quite right. A preliminary injunction is an extraordinary equitable remedy, but it doesn't require an intention to be unjust, only the effect of injustice if the temporry remedy is not granted.

Expand full comment

The Bible does not go into details, so it's easy for it to look inconsistent. In one sense, X is true, in another sense, not X. For instance, US law does not punish the child for the sins of the father-- but if the father goes to prison and the family is destitute, the child is punished for the sins of the father. It's remarkable how many sins reverberate across generations in a natural way. A man leaves his wife. His daughter marries a man who leaves her. His grandson leaves his wife...

Expand full comment
author

Which is part of what Rabbi Sacks talks about in the linked piece - that we are all part of an interconnected community, and these things do have ramifications for families and for everyone.

Expand full comment