In the midnight hour
- By James Ferguson
I’m gonna wait ’til the midnight hour, When there’s no one else around
Wilson Pickett (1941–2006) and Steven Lee Cropper (1941– )
The Limitation Act 1980 in England & Wales provides time limits within which certain claims must be brought. In Northern Ireland, the Limitation (Northern Ireland) Order 1989 contains similar provisions. Beyond those limitation periods, a claim will be statute-barred.
The Supreme Court in London recently considered the minutiae of whether the day commencing at, or immediately after, the midnight hour counts towards the calculation of the statutory limitation period.
The appellants comprise the current trustees, along with the beneficiaries, of a trust established under a will made in 1948. The respondents were the previous trustees up to 2014.
The Trust had a shareholding in Cattles plc (“Cattles”). In 1994, Cattles acquired Welcome Financial Services Ltd (“Welcome”).
In 2007, Cattles published an annual report which was later found by the Financial Services Authority to be “misleading”. Trading in their shares was suspended in 2009 and, in 2011, both Cattles and Welcome entered court-sanctioned schemes to which shareholders were entitled to submit claims. The respondents submitted a claim under the Cattles scheme.
The Welcome scheme had a cut-off date where “in order to be entitled to any Scheme Payment, Scheme Creditors must, on or prior to the Bar Date [Thursday 2 June 2011], submit a Claim Form.” The respondents had not submitted a claim under the Welcome scheme by the “Bar Date”.
The appellants sought to sue the respondents for negligence and breach of trust. Proceedings were served on Monday 5 June 2017.
Under the Limitation Act, such actions:
…shall not be brought after the expiration of six years from the date on which the cause of action accrued.
The case turned on whether the six years expired on Friday 2 June 2017 or Saturday 3 June 2017. The former would be statute-barred. The latter would be within time on the basis that, as the courts were closed on Saturday 3 June 2017, the next business day was Monday 5 June 2017.
The Supreme Court held that the clock started ticking at midnight on Thursday 2 / Friday 3 June 2011.
The 3 June 2011 was a whole day so that it should be included in the computation of the limitation period.
per Lord Stephens at para 49
Accordingly, the clock stopped at midnight on Thursday 1 June 2017 / Friday 2 June 2017.
The appeal was dismissed.
The pedantry of this case may seem unduly harsh on the appellants. The corollary would have been equally so on the respondents. Law is defined by its pedantry. This judgment serves to highlight the importance of attention to detail.
What a diff’rence a day made, Twenty-four little hours
Dinah Washington (1924–1963)
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