First Catch Your Defendant—Limitation and the Unknown Tortfeasor
| Date | 01 July 1966 |
| DOI | http://doi.org/10.1111/j.1468-2230.1966.tb01125.x |
| Author | Michael J. Goodman |
| Published date | 01 July 1966 |
FIRST
CATCH
YOUR DEFENDANT-
LIMITATION AND
THE
UNKNOWN
TORTFEASOR
IN
1825,
Best
C.J.
said: “Long dormant claims have more of
cruelty than of justice in them.” He referred to the Limitation
Act
1628
as
an
“Act
of
peace.)’
No
doubt that Act, and
its
suc-
cessor, the Limitation Act
1080,
would be commendable to
a
society for the prevention of cruelty to defendants, but hardship to
plaintiffs is still very much
a
feature of our law of limitation of
actions.
This
article proposes to examine
a
particular form of
hardship to plaintiffs and to consider how, under the present law,
that hardship may possibly be mitigated.
The following example will illustrate the problem.
Mr.
A
knows
that he has suffered injury
or
damage
in
circumstances that would
normally be tortious. He does not know the identity of the person
who has caused the injury
or
damage and, though he makes
all
proper inquiries, does not discover
it
until after the normal period
of limitation
has
expired.
It
may be that A had no idea of the
identity
of
the defendant
or
alternatively he may have thought that
€3
was
responsible and, only after protracted negotiations with
By
discovers that
C
is the real cu1prit.l
Is
A’s
claim against
C
to be
statute-barred, although he has not slept
on
his
rights
i’
The
problem has figured in two reported cases, namely,
R.B.
Policies
at
Lloyds
v.
ButlerYa
a
decision of Streatfeild
J.
in
1040,
and
Re Clark
v.
Forbes Stuart (Thames Street), Ltd. (Intended Action),‘
a
decision of the Court of Appeal in
1064.
In the
R.B.
Policies
case,
A
motor-car had been stolen some seven years before the plaintiffs
(successors
in
title of the original owner of the car) commenced pro-
ceedings in conversion and detinue against the defendant, who had
bought the car bona fide and for value. The plaintiffs had been
unable to sue before because they did not know the identity of the
thief, but
as
soon
as
they had discovered the whereabouts
of
the car
they issued their writ. The defendant relied on the Limitation Act
1089,
pleading that
a
cause
of
action had accrued to the original
owner the moment the car was stolen. Streatfeild
J.
uphcld this
contention, deciding that the plaintiffs’ claim was statute-barred by
1
A’Court
v.
Cross
(1826)
8
Bing.
820
st
p.
888.
2
B’E
having indulged in negotiations
will
not
help
A
in
hie
action ageinet
C,
UU~E
.B
wero
C’s
agent and cxpreeely
or
implicdly
promiecd that the
Limitation Act would not
be
pleaded
~LI
a
defonco-eee,
e.g.,
Herblett
v.
L.C.C.
(1908)
72
J.P.
186;
Wright
v.
Bagnali [1000]
2
Q.B.
240;
Luboosky
v.
Snelling
119441
K.B.
44.
[1964]
1
W.L.R.
880;
[1964]
2
All
E.R.
282.
See
p.
370
below.
8
[lOGO]
1
ILB.
78;
[1940]
2
All
E.R.
226.
866
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