England and Wales - Time Bars

Date: 27/02/2017
Author: Jaqueline Tan
Source: UK P&I Club

Time Bars under the jurisdiction of England and Wales

Overview

The Limitation Act 1980 is the starting point for an overview regarding the applicable limitation periods for claims brought within the jurisdiction.

It is for the defendant to plead the defence of limitation as the courts will not take the point against the claimant. In other words, a court will not of its own volition bar a claim on the ground that the claim has expired. Once the defendant has raised the defence of limitation, the burden is on the claimant to prove that time to bring the claim has not expired.

However:-

  • Parties may agree in contracts to vary, extend or waive the limitation periods. 
  • Time extensions are most often created via correspondence but more frequently these days through formal agreements such as a Standstill Agreement.
  • Such agreements can either be used to ‘pause’ time for issuing a claim (like a moratorium) or they can clearly record the ‘period of extension’ agreed between the parties.
  • Most time extensions agreed are contingent upon one or both parties being obligated to carry out further agreed steps in the intervening period.
  • Time extensions are frequently agreed to allow the parties further time to obtain Single Joint Expert (SJE) reports to conduct negotiations and / or explore the resolution of the dispute in mediation.
  • The clear benefit to extensions is that they allow the parties an opportunity to ‘narrow the issues’, by agreeing parts, if not all, of the dispute.  This will result in savings in the costs of formal proceedings.
  • It is worth noting that:-
  • In some circumstances shortening of time bars may be subject to the Unfair Contract Terms Act 1977 (“UCTA”) where one of the parties deals as a consumer or on the other party’s written standard terms of business. 
  • UCTA does not apply to international sale of goods contracts and international carriage of goods contracts.
  • The Limitation Act 1980 does not apply when a different period of time is specified in the contract or any other Act or Convention with a different time bar is incorporated into the contract.
  • Whilst section 33 of the Limitation Act 1980 allows for limitation to be extended on some specific grounds, this is not the case for some of the conventions.  The Athens Convention for example applies time limits strictly in the context of claims brought within the jurisdiction. This is fundamentally because cases have so far determined that the Limitation Act 1980 is seen as a procedural instrument whereas the time limits imposed by conventions are substantive.


In conclusion, we suggest it is wise to be very cautious of all time limits that may apply to claims.  The exact details of when a claim may have arisen, and/ or when a claimant may have had first knowledge of his claim should be strictly investigated.
Examples of Different Limitation Periods

Contract Claims

Nature of ClaimTime Bar
Simple contracts6 years from the date of the breach of the contract
(Section 5 Limitation Act 1980)
Deeds12 years from breach of obligation contained in the deed

Tortious Claims

General position
(excluding personal injury or death and latent damage claims)

6 years from the date of the negligent act or omission. If involves physical damage - from the date of the damage

(Section 2 Limitation Act 1980)

Personal injury or death

3 years from negligent act/ omission/ knowledge if later

Upon death of the injured person, 3 years for the cause of action surviving for the benefit of his estate, from the date of death or the date of the personal representative’s knowledge, whichever is the later.

(Section 11 and 12 (death) Limitation Act  1980, S.1 Law Reform (Miscellaneous Provisions) Act 1934)

(The definition of "date of knowledge" for the purposes of sections 11 and 12 can be found in section 14 of the Limitation Act.)The court has discretion to exclude this time limit if it would be equitable to do so (section 33, Limitation Act 1980).

Personal Injury of a minor3 years from the date of the passenger’s 18th birthday – i.e. to issue the claim before the 21st birthday.
Claim for Contribution

2 years from the date of accrual for any person who becomes entitled to a right to recover contribution in respect of any damage from any other person.

(Section 10(1) Limitation Act 1980)

Latent defects claims
(excluding personal injury)

6 years from the date the defect occurred; or

3 years from the earliest date the claimant knew or reasonably ought to have known, material facts necessary to bring an action alleging negligence;

(Section 14A Limitation Act 1980)

Subject to a long-stop date of 15 years from date of occurrence of the negligent act or omission.

(Section 14B Limitation Act 1980)
See also new section 28A Limitation Act 1980)

Fraud

6 years from the date cause of action accrued
If the cause of action is deliberately concealed
6 years from when the fraud is, or with reasonable diligence would have been, discovered.

(Sections 2 & 32 Limitation Act 1980)

Defamation or malicious falsehood

1 year from date cause of action accrued

(Section 4A Limitation Act 1980 as substituted by Section 5 Defamation Act 1996)

Maritime Claims

Carriage of Goods by Sea

1 year from delivery for claims against the Carrier

(Article III Rule 6 Carriage of Goods by Sea Act 1971)

Collision

2 years from the date of the casualty

(Section 190 Merchant Shipping Act 1995; Art. 7 Collision Convention 1910)

Personal Injuries as a result of a collision2 years from the date the damage occurs where a person travelling on a vessel used in navigation suffers personal injury as a result of another vessel.
(Section 183 Merchant Shipping Act 1995 incorporating Athens Convention 1974, see below)
Enforcement of an arbitration award

6 years from the date on which the award ought to have been honoured which is normally a reasonable time from the date of the award.

(Section 7 Limitation Act 1980)

General Average

6 years from time expenditure incurred or sacrifice made unless a shorter express time limit applies

Section 5 Limitation Act 1980)

1 year after general Adjustment is issued  (but within 6 years from the date of termination of the common maritime adventure)
(York Antwerp Rules 2004)

InterClub Agreement claims

2 years from date of delivery of cargo or date cargo should have been delivered to provide written notification of claim – when Hague/Hague-Visby Rules
(3 years when the Hamburg Rules apply)

6 years from date of delivery of cargo or date cargo should have been delivered if claim is not subsequently pursued

(Section 5 Limitation Act 1980)

Personal Injury relating to ‘passengers’ under Athens Convention 1974

2 years from the date of disembarkation of the passenger – a strict time bar.

(Art. 16 Athens Convention relating to the Carriage of Passengers and their Luggage by Sea 1974)

Salvage Contributions
(other than under Charter Party or Contract of Carriage)

2 years from date salvage operations were terminated

(Art. 23 International Convention on Salvage 1989 and Schedule 11 Merchant Shipping Act 1995)

About the Author

Jacqueline is a qualified Barrister and Solicitor. She handles FDD and P&I cases. Jacqueline speaks French, Hokkien and Malay. She is also a member of the Club’s Legal and Environmental team which seeks to inform and update the Club’s Members on legal developments, changes to international conventions and their implications.

T: +44 (0) 20 7204 2118
M: +44 (0) 7917 265966
E: jacqueline.tan@thomasmiller.com


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