Dungate v Dungate
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SELLERS,LORD JUSTICE DIPLOCK,LORD JUSTICE RUSSELL |
| Judgment Date | 30 July 1965 |
| Judgment citation (vLex) | [1965] EWCA Civ J0730-1 |
| Date | 30 July 1965 |
| Court | Court of Appeal |
[1965] EWCA Civ J0730-1
Lord Justice Sellers
Lord Justice Diplock and
Lord Justice Russell
In The Supreme Court of Judicature
Court of Appeal
From: Mr. Justice Edmund Davies — Middlesex)
Mr. John Neyin (instructed by Messrs. Edward Isaacs & Co.,London, S. W.16) appeared on behalf of the Appellant (Defendant).
Mr. D. J. Trenner(instructed by Messrs. Philip Conway Thomas & Co appeared on behalf of the Respondent (Plaintiff).
(without calling upon Counsel for the Respondent)
I will ask Lord Justice Diplock to give the first judgment.
This is an appeal from a judgment of Mr. Justice Edmund Davies in an action in which Mr. Dungate sought to recover from the widow and administratrix of his deceased brother George sums which he had lent to his brother George in his lifetime. The only defence put forward was the not very attractive one that the debts were statute-barred.
The first loan made by Victor Dungate to his brother was of £500, on the 12th October, 1953. In order to raise the money to make this loan he and his wife apparently had to grant a mortgage on their house; and they charged in respect of that loan - which was made to George Dungate and another person, a Mr. Elcon, jointly as partners — interest at 5 per cent, per annum. In 1956 George was again in low water and cone to his brother Victor for further loans. £50 was advanced on the 11th May and another £120 upon the 14th May — loans which were made, out of the kindness of his heart, without interest. On the 15th November, 1957, a further £300 was lent by Victor to George.
George died on the 30th Way, 1963; and in due course, on the 16th October, 1964, a writ was issued against the widow as administratrix seeking recovery of the balance outstanding upon the loans. The Statute of Limitations was pleaded, and in reply the plaintiff relied upon payments of interest on the first loan of £500, but those in fact finished on the 13th April, 1957, and so would be too early to take the debt out of the statute. Secondly, he relied upon a letter dated 23rd April, 1962, acknowledging the indebtedness. Thirdly, he relied upon tax deduction certificates for the years 1953 to 1961 in respect of the interest paid upon the original loan for £500.
It emerged in the evidence that in fact the deceased had been making payments in respect of his indebtedness right up to October, 1962, but these were not pleaded in the Reply as takingthe debts out of the Statute of Limitations; and the learned judge refused an application to amend except on terms which were not acceptable to the plaintiff. However, the learned judge decided in favour of the plaintiff on three grounds, two of them relating only, I think, to the debt of £500 and one of them going to the whole of the indebtedness.
I do not think it necessary to deal with the first two grounds on which the learned judge relied in respect of the £500 because I think that the letter of February 23rd, 1962, is a sufficient acknowledgment to take all the debts out of the Statute of Limitations. I should perhaps read section 23 subsection 4 of the Limitation Act, 1939, which is the relevant statutory provision. "Where any right of action has accrued to recover any debt or other liquidated pecuniary claim, or any claim to the personal estate of a deceased person or to any share or interest therein, and the person liable or accountable there for acknowledges the claim or makes any payment in respect thereof, the right shall be deemed to have accrued on and not before the date of the acknowledgment or the last payment". There follows a proviso which does not matter in this case.
Then section 24 sub-section 1: "Every such acknowledgment as aforesaid shall be in writing and signed by the person making the acknowledgment". Sub-section 2: "Any such acknowledgment… may be made by the agent of the person by whom it is required to be made under the last foregoing section, and shall be made to the person, or to an agent of the person, whose title or claim is being acknowledged or, as the case may be, in respect of whose claim the payment is...
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... ... 109 In my judgment, this interpretation of section 29(5) is supported by the decision in Dungate v Dungate [1965] 1 WLR 1477 which addressed the equivalent provision in section 23(4) of the Limitation Act 1939 (which was in materially the ... ...
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... ... Likewise in Dungate v Dungate [1965] 1 WLR 1477 , the debtor's letter saying: "Keep a check on totals and amounts I owe you and we will have account now and ... ...
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David Ross v Francis Joseph McGrath
...is capable of ascertainment by calculation, or by extrinsic evidence without further agreement of the parties: see Good v Parry 423; Dungate v Dungate [1965] 1 WLR 1477 at 1483. 3. Extrinsic evidence is admissible to identify the acknowledgment with the debt: see Dungate v Dungate at 1483. ......
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Manning v English
...court has considered the question of sufficiency of a communication as acknowledgment for limitation purposes. 44 In Dungate v Dungate [1965] 1 WLR 1477; [1965] 3 All ER 818, the Court of Appeal held that an acknowledgment for the purposes of the Limitation Act 1939 need not identify the am......