In a recent High Court case Matthew & Ors v Sedman & Ors  EWHC 3527 (Ch), His Honour Judge Hodge QC considered an interesting issue in relation to when limitation starts to run.
In the above claim, the Judge found that the alleged breach had occurred on 2 June 2011, an application was subsequently made by the Defendants for Summary Judgment on the basis that the action was statute barred due to the claim being issued out of time on the basis that proceedings had been issued on Monday 5 June 2017.
So if the cause of action accrued on 3 June 2011, would the claim be out of time if it was issued after 2 June 2017?
The Judge summarised the issue to be determined as follows:
“The application which is presently before the court raises a short but interesting and not unimportant point on the law of limitation. The question is this: when a cause of action is completely constituted at the very first moment of a particular day, does that day fall to be included when calculating the applicable six years’ limitation period or does it fall to be excluded? More pertinently for present purposes, if a cause of action accrued at the very first moment of Friday 3rd June 2011, is a claim issued after Friday 2nd June 2017 brought after the expiration of six years from the date on which the cause of action first accrued?”
The Judge ruled:
“There may be difficulty in establishing the precise point in time during the day when the cause of action arose, and also in cases where it is necessary to exclude that day to ensure that the claimant has a full six years period, and not a six years period less the number of hours of the day in question before the cause of action arose. Where, however, it is absolutely clear that the cause of action arose at the very instant the day began, it does not seem to me that there is any justification for excluding that day from the calculation for Limitation Act purposes.”
“I am satisfied that the cause of action accrued at the first moment of 3rd June 2011. The claimants had had to issue their claim form before the expiration of six years from that date. In the event, it was issued on Monday 5th June 2017. Although, if the limitation period had expired on Saturday 3rd June , that would have been sufficient to defeat the operation of the Limitation Act, if the expiration of the period of six years from the date the cause of action accrued was Friday 2nd June 2017, then the claim is out of time. If, however, the expiration of six years from the date the cause of action accrued was Saturday 3rd June 2017, then, because for limitation purposes one disregards days when the court office is closed, the claim was validly issued on Monday 5th June 2017. The question is whether one excludes 3rdJune 2011 from consideration for Limitation Act purposes.
In my judgment, where it is absolutely clear that the cause of action arises at the very beginning of a particular day, that day should not be excluded from the calculation for Limitation Act purposes. At any moment during that day the claimant can bring a claim; and to exclude that day from the calculation for Limitation Act purposes would have the effect of giving him an extra day over and above the statutory limitation period for bringing the claim”.
Summary Judgment for the Defendant was therefore upheld.
So if it is regarded by the courts that a cause of action accrues during the course of a particular day (i.e. not at the start of the day), then it appears from the above Judgment that the first day can be excluded from the calculation of limitation due to the difficulty in establishing the precise point in time during the day when the cause of action arose. However, if it is absolutely clear that the cause of action arose at the very instant the day began, then the first day when the cause of action arose can be included in the calculation for Limitation Act purposes.
This is a complex area of Law, so if you need any advice please contact our team of Professional Negligence Solicitors on 01924 475 171.