You should have sued us just around midnight!

Dispute Resolution | 30th April 2018

When a cause of action arises during the course of a day, e.g. the occurrence of a car accident, that day is disregarded for limitation purposes and the clock is said to start ticking from the start of the following day.

What happens, however, when the cause of action arises at midnight? This scenario is not just limited to accidents occurring on the stroke of midnight but, for example, where a cause of action arises because of a failure to take action by a particular date. That failure only becomes incapable of being remedied at the very last moment of the very last day on which the action could have been taken, i.e. midnight. In that situation, does the limitation period clock start ticking one second after that on the next day, or at the start of the day after that?

The recent case of Matthew -v- Sedman has answered that question. The case involved a family settlement of shares. The relevant defendants were partners/employees of a firm of accountants who were acting as professional trustees. In April 2009, trading in the shares was suspended and a scheme of arrangement was established. In order, however, to be entitled to any payment under the scheme, creditors were required to submit a claim form on or before 2 June 2011. The defendants, however, failed to submit a claim form in time and the claimants therefore lost the opportunity to receive any scheme payments.

The claimants, or perhaps their lawyers, assumed that, applying the general principle referred to above, the day after the deadline (in this instance 3 June 2011) was excluded for the purposes of calculating the limitation period. Regrettably, the court took a different view and held that the claim against the defendant accountants was out of time because 3 June 2011 was included as the first day of the limitation period.

In a lot of professional negligence cases, proving that the defendants breached the duty of care they owed to the claimants is not necessarily the main problem. A lot of these cases tend to revolve around issues to do with causation or technical defences, such as limitation. This is why it is always sensible to instruct real specialists in this area, such as those at Hart Brown, so that you do not fall foul of these sorts of technical issues.

 

This is not legal advice; it is intended to provide information of general interest about current legal issues.

Paul Grimwood

Partner, Head of Dispute Resolution

As Head of Dispute Resolution Paul has extensive experience of dealing with a wide range of disputes focusing in particular on professional negligence...