Date: Wed, 30 Jan 2008 14:29

From: Andrew Tettenborn

Subject: Limitation of actions made interesting

The decision is here.

A Hoffmann special. Stubbings v Webb overturned using the practice direction (hooray!).

The only small downside is that overturning the mistake of Stubbings meant that they didn't have to answer some more interesting legal questions.

Rob has hit the nail on the head. The devil is in the detail -- here the discretion under s.33.

It's all very well for Hoffmann and Hale to say that most of the work should be done by that section rather than the date of knowledge provisions, with no criteria barred. But this throws up all sorts of awkwardnesses. For example

(1) the wider the discretion under s.33, the nearer we get to a rule that proceedings are limited if it's reasonable to hold them barred, which is a long way from the certainty lawyers seek and which the 1980 Act seeks to give them.

(2) do we really want actually to encourage the raking over of stale events? I find rather unattractive the idea of encouraging even a victim as sympathetic as H to re-ignite controversies over what happened 20 years ago, rather than get on with her life as it is now.

Andrew

--
Andrew Tettenborn MA LLB
Bracton Professor of Law
University of Exeter, England

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LAWYER, n. One skilled in circumvention of the law (Ambrose Bierce, 1906).

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