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The Court of Appeal has provided useful clarification on how to calculate the expiry of a limitation period in cases of a ‘midnight’ deadline.
The key question before the Court of Appeal was, as formulated by the trial judge, “when a cause of action is completely constituted at the very first moment of a particular day, does that day fall to be included when calculating the applicable six years’ limitation period or does it fall to be excluded?”.
In the present case, this issue arose as the claim form had been issued on Monday 5 June 2017 (the Monday after Saturday 3 June 2017), in circumstances where the cause of action was said to have accrued at the very first moment of 3 June 2011. The question therefore was whether 3 June 2011 was to be included or excluded when calculating the six year limitation period.
The judge at first instance held that the claim was time barred as the cause of action accrued at the first moment of 3 June 2011 and as such that day (i.e. 3 June 2011) should not be excluded from the calculation for limitation purposes.
In the Court of Appeal, whilst confessing that he had “not found this an easy case to decide, principally because of the potentially fundamental question: did the relevant cause of action arise at midnight, or just after the midnight deadline expired and therefore during the next day?”, Lord Justice Irwin giving the leading judgment found that “…in the case of a “midnight” deadline, it is wrong to attribute the accrual of an action such as this to the day after the relevant midnight, and the analysis must proceed from there”.
Following a careful analysis of previous cases, in dismissing the appeal, Irwin LJ went on to conclude that a “midnight deadline” case was “different from others in the sense that the deadline provides a categorical indication that the action accrued by that point in time, rather than accruing on the day following midnight” and therefore no issues of fractions of days arose.
In a short supporting judgment, Lord Justice Underhill concluded that there is “a clear distinction between the case where a cause of action accrues “at the stroke of midnight”, because it is based on a failure to do something by the end of a specified day, and the case where the cause of action accrues part way through a day. In the latter case it is indeed well-established that for limitation purposes you ignore the date on which the cause of action accrues…” He added that it was his “strong personal view” that in cases where the cause of action arises very early in the relevant day, that day falls to be excluded because he could not see a “rational basis on which to distinguish between fractions of a day that are or are not sufficiently big to count”. However, this did not arise in the present case as there was no part of the day in question (i.e. 3 June 2011) during which the appellants did not have the benefit of their cause of action.
This case serves as a reminder to not leave issuing proceedings until the very last minute. Parties should ensure that, where the limitation deadline is approaching, proceedings are issued well in advance of that deadline. In cases of a potential ‘midnight’ deadline even more care needs to be taken to avoid the possibility of a claim being time-barred.
A copy of the Court of Appeal’s judgment can be found here.