Lord Justice Jackson has called on the government to create a “single core limitation regime” for all claims in contract and tort, as recommended by the Law Commission.
“The limitation problem, which has been the driving force behind some of the more dubious decisions on concurrent liability, is self-inflicted,” Jackson LJ said.
“There is no need for the wide divergence which currently exists between the limitation rules for contract and tort.”
The Law Commission recommended that there should be a ‘primary limitation period’ of three years for all claims from the date of actual or constructive knowledge and a ‘long-stop’ position of 10 years from the date of accrual of the cause of action or breach of duty. Courts would have discretion to extend limits in personal injury cases.
Speaking to the Technology and Construction Bar Association and the Society of Construction Law last week, Jackson LJ said the previous government rejected the commission’s Limitation of Actions report in 2009.
“The limitation rules are not simply a matter of ‘lawyers’ law’,” Jackson LJ said. “They serve a valuable social purpose. For obvious reasons, it is not always easy for coalition governments to establish full legislative programmes.
“The Law Commission’s proposals on limitation might form a useful package on which a present or future government would be able to agree.”
Lord Justice Jackson said that if the law on limitation was reformed, the “path will then be clear” for the Supreme Court to look again at the issue of concurrent liability.
“In my view the rights and liabilities of contracting parties should generally be regulated by the contracts which they have made, not by some amorphous and ever-expanding law of tort,” he said.
Jackson LJ argued that the difference between the limitation periods for contractual and tortious claims had been the “driving force” between many of the cases “asserting” concurrent liability.
“This is unfortunate to say the least. If it is felt that the contractual limitation periods are unsatisfactory, then surely the remedy is to amend the law of limitation, not to mangle the law of tort. The fact that a contractual claim is time-barred is not a good reason to ‘invent’ a tortious claim.”