UNITED KINGDOM

Law Reform (Miscellaneous Provisions) Act 1971 *

(1971 C.43)

An Act to extend in certain cases the time limit for bringing legal proceedings where damages are claimed which consist of or include damages for personal injuries or in respect of a person's death, and to amend accordingly the Limitation Act 1963; to provide that in assessing damages for widows in actions arising from the death of their husbands, remarriage and prospects of remarriage shall be left out of account; to repeal section 19 of the Administration of Justice Act 1965; and for purposes connected therewith.
[1st July 1971]

General Note
The purpose of this Act is to extend from 12 months to three years the time-limit within which proceedings must be instituted in a claim for damages for personal injuries or in respect of a person's death; to ensure that the fact or the prospect of remarriage is left out of account in the assessment of the widow's damages under the Fatal Accidents Acts; and to remove the court's control over the payment-out of the widow's damages.

Pt. I (ss. 1-3). Limitation of Actions

This Part of the Act results from the Report of the Law Commission of November 24, 1970 (Cmnd. 4532), on the Limitation Act 1963.

S. 1 extends the time-limit within which a plaintiff may institute proceedings for personal injuries from 12 months, as provided for in s. 1 (3) of the 1963 Act, to three years, running from the date when the plaintiff acquired the knowledge (actual or constructive) that the material facts relating to his cause of action were, or included, facts of a decisive character in that cause of action.

S. 2 applies the new three-year period to the claims of personal representatives or dependants under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Acts. Previously such claims were statute-barred after 12 months from the date of the death of the deceased. By reference to Part I of Sched. 1 to the Act this section further provides that where such claimants acquire knowledge (actual or constructive) of material facts of a decisive character in respect of the injury to the deceased, the period of three years shall run from the date of the acquisition of such knowledge.

S. 3 deals with transitional provisions.

Pt. II (ss. 4 and 5): Damages for Widows

S. 4 provides that in the assessment of damages payable to a widow under the Fatal Accidents Acts, no account shall be taken of her remarriage or her prospects of remarriage.

S. 5 repeals s. 19 of the Administration of Justice Act 1965 whereby only a widow without infant children was entitled to immediate payment-out of damages awarded to her in respect of a claim under the Fatal Accidents Acts. Subs. (2) allows any money still in court by virtue of the above s. 19 to be paid out on the application of any person thereto entitled and not under a disability.

Pt. III (s. 6): General

S. 6 deals with the short title and extent.

The Act came into operation on August 1, 1971, one month after it was passed, as provided in subs. (2).

For parliamentary debates, see H.L. Vol. 317, col. 527; Vol. 318, cols. 521 and 1525; Vol. 319, col. 767; H.C. Vol. 810, col. 1119; Vol. 814, col. 1084; Vol. 819, col. 946.

* Annotations by A. Hirst, Barrister-at-Law.

Table of Statutes referred to

Limitation Act 1963…………………………………	1963 c. 47	
Law Reform (Miscellaneous Provisions) Act 1934…	1934 c. 41	
Limitation Act 1939…………………………………	1939 c. 21	
Fatal Accidents Act 1846……………………………	1846 c. 93	
Law Reform (Limitation of Actions) Act 1954……..	1954 c. 36	
Administration of Justice Act 1965…………………	1965 c. 2	

Scotland

The relevance of the various provisions to Scotland are set out in ss. 1 (d) (b); 2 (3); and 4 (2).

Northern Ireland

The only section extending to Northern Ireland is s. 5 (3), which provides that the repeal in s. 5 (1) of s. 19 of the Administration of Justice Act 1965 shall not affect s. 31 of the said Act of 1965, which enables the Parliament of Northern Ireland to enact provisions corresponding to those of s. 19.

PART I

LIMITATION OF ACTIONS

Extension of time-limits under ss. 1 and 8 of Act of 1963

1.-(1) In the following provisions of the Limitation Act 1963, that is to say -

(a) section 1 (3) (which enables certain actions that would otherwise be statute-barred to be brought if the plaintiff was ignorant of the relevant facts until a date which was not earlier than twelve months before the action was brought); and

(b) section 8 (3) (which makes corresponding provision for Scotland), for the words from "until a date which" to the end there shall be substituted the words "until a date which was not earlier than three years before the date on which the action was brought".

(2) Sections 7 (2) and 13 (2) of the said Act of 1963 (which become unnecessary in consequence of subsection (1) of this section) are hereby repealed.

GENERAL NOTE
This section is to be viewed within the wider contest of s. 1 of the Limitation Act 1963; and the provisions of s. 1 (1), (2) and (4) of the 1963 Act are in no way disturbed by the substitution of the three year period for the 12 month period in subs. (3) of the 1963 Act.

This substitution embodies the recommendation of the Law Commission's Report (Cmnd. 4532). Here it was argued that although the shorter period was not known to have caused any cases of hardship, it was nonetheless desirable to extend the time-limit to three years since (a) leave to proceed under s. 1 of the 1963 Act is only granted if the plaintiff's application is accompanied by a statement of claim set out in all due particularity and supported by a detailed affidavit: in certain cases it might prove difficult to satisfy these onerous procedural requirements within the space of 12 months; and (b) there is the possibility that the techniques of scientific research and of modern publicity might suddenly give a very large number of persons actual or constructive notice of an identical cause of action, as in the case of Pickles v. National Coal Board [1968] 1 W.L.R. 997 (pneumoconiosis and mineworkers): in which case the machinery of justice could well become clogged by a multitude of similar actions all requiring to be instituted within the same period of twelve months.

Extension of time-limits for certain actions brought after death of injured person

2.-(1) For section 3 of the Limitation Act 1963 (under which the extended time-limit provided by section 1 of that Act is not available for actions brought by virtue of the Law Reform (Miscellaneous Provisions) Act 1934 or the Fatal Accidents Acts more than twelve months after the death of the injured person) there shall be substituted the sections set out in Part I of Schedule 1 to this Act.

(2) In section 7 (4) of the said Act of 1963 after the words "section 2 (1) of the Limitation Act 1939" there shall be inserted the words "or so much of section 3 of the Fatal Accidents Act 1846 as requires actions under that Act to be commenced within three years after the death of the deceased".

(3) In section 8 of the said Act of 1963 (extension of time-limit for certain actions in Scotland), at the end of subsection (2) there shall be added the words "not being an action to which section 9 of this Act applies"; and for section 9 of the said Act of 1963 (actions in Scotland in respect of death of injured person) there shall be substituted the section set out in Part II of Schedule 1 to this Act.

GENERAL NOTE
S. 2 (1) provides for the replacement of s. 3 of the Limitation Act 1963 (which deals with claims under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Acts) by the three new sections, ss. 3, 3A, and 3B, which are set out in Pt I of Sched. 1 to the Act.

The 1963 Act prevented claimants under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Acts from instituting proceedings beyond the period of twelve months from the death of the deceased (assuming that the normal three-year period had expired before his death). No provision was made for potential claimants who had discovered material facts of a decisive character at a date more than twelve months after the death of the deceased; and this was seen to work hardship in Lucy v. W. T. Henley's Telegraph Works Co. Ltd. [1970] 1 Q.B. 393, where the widow of a man who died in 1964 from cancer contracted through handling a chemical at work was refused leave to join the manufacturer of the chemical as second defendant to her action under the Fatal Accidents Acts in 1968, when her advisers discovered that the manufacturers had been aware of the cancer risk since 1949.

The Law Commission (Cmnd. 4532) took the view that the position of a potential claimant under s. 3 of the 1963 Act should be assimilated to that of a living plaintiff; and this view was incorporated in this present Act. In the first place, this means that the substitution of the new three-year period, as provided in s. 1 of this Act, will also extend to those claiming as personal representatives or dependants of the deceased. S. 3 (2) and s. 3B (1) of Pt. I of Sched. 1 go on to provide that such claimants may institute proceedings, if it is proved that the deceased had no knowledge (actual or constructive) of the relevant material facts of decisive character until his death or until a date less than three years before his death (s. 3B (1) (a)), and that the action was brought not later than three years after the date of his death (s. 3B (1) (b) (i)), or it is proved that these material facts of decisive character were outside the knowledge (actual or constructive) of any personal representative or dependant claiming, until a date which was not earlier than three years before the date when the claim was actually made (s. 3B (1) (b) (ii). Thus a personal representative or a dependant may institute proceedings within three years of discovering material facts of a decisive character, whenever that discovery is made. Further, even when the deceased himself had discovered such material fact of a decisive character within the three years before his death, but thereafter had failed to take action upon them, the fact of his knowledge will not be imputed to his personal representatives and dependants who proceed under s. 3B (1) (b) (i) or (ii).

Transitional provisions

3. Schedule 2 to this Act shall have effect as respects the application of this Part of this Act in relation to causes and rights of action which accrued before the commencement of this Act.

GENERAL NOTE
This section deals with the transitional arrangements, as set out in Sched. 2 to the Act. Broadly, the provisions of the Act apply not only to future causes of action, but also to causes of action in which proceedings have  already commenced, provided that the final order or judgment of the trial court has not been given.

PART II

DAMAGES FOR WIDOWS

Assessment of damages for widows

4.-(1) In assessing damages payable to a widow in respect of the death of her husband in any action under the Fatal Accidents Acts 1846 to 1959 there shall not be taken into account the remarriage of the widow or her prospects of remarriage.

(2) In the application of subsection (1) of this section to Scotland, for the words "in respect of the death of her husband in any action under the Fatal Accidents Acts 1846 to 1959" there shall be substituted the words "in any action in respect of which the right of action accrued on the death of her husband in consequence of personal injuries (as defined in section 6 of the Law Reform (Limitation of Actions, &c.) Act 1954) sustained by him".

GENERAL NOTE
This section has been the subject of wide public comment. As a consequence of cases like Buckley v. Allen [1967] 2 Q.B. 637, Parliament has felt the need to eliminate a situation in which the courts were seen to be inquiring and speculating as to the chances of remarriage of a widow claiming under the Fatal Accidents Acts, as one element in their assessment of the proper figure of damages for her. Any incidental benefit acquired or likely to be acquired by the widow through remarriage is now to be discounted in the same way as, for example, any payment she may receive under insurance policies effected in her favour by her late husband against the event of his death: Fatal Accidents Act 1959, s. 2 (1).

Abolition of control of widows' damages

5.-(1) Section 19 of the Administration of Justice Act 1965 (widows' damages in Fatal Accidents Acts claim to be subject to control of court if claim also made on behalf of infant) is hereby repealed.

(2) Any money which by virtue of the said section 19 is in court at the commencement of this Act shall, if the person entitled thereto is not under disability and makes an application in that behalf to the court, be paid out to that person.

(3) The repeal by this section of the said section 19 shall not affect section 31 of the said Act of 1965 (which enables the Parliament of Northern Ireland to enact provisions corresponding to those of the said section 19).

GENERAL NOTE
This section further slackens the court's control of damages awarded to dependants under the Fatal Accidents Acts. Prior to 1965 a widow who had made a successful claim on behalf of herself and her children was obliged to pay the money into court; and then she would agree with the registrar on an appropriate sum to be drawn monthly. Since s. 19 of the Administration of Justice Act 1965 this obligation has been waived when her children were no longer infants. Parliament had considered that this afforded a measure of protection to the widow. S. 19 of the 1965 Act is now repealed by s. 5 of this Act, and a widow is entitled to immediate payment of any sum awarded to her, whether or not she has infant children. The effect of this section is to put the widow in the same position as a man, or a widow who, for example, receives a legacy, neither of whom have ever been subject to the control of the court in respect of the sums to which they were entitled. The normal practice of the courts, in awarding damages in actions under the Fatal Accidents Acts, is to apportion the greater part of the amount to the widow and comparatively small sums to the children. Subs. (2) enables any person not under a disability to obtain payment of any sums paid into court by virtue of s. 19 of the 1965 Act to which he is now entitled.

PART III

GENERAL

Short title, commencement and extent

6.-(1) This Act may be cited as the Law Reform (Miscellaneous Provisions) Act 1971.

(2) This Act shall come into operation at the expiration of the period of one month beginning with the date on which it is passed.

(3) Except for section 5 (3) this Act does loot extend to Northern Ireland.

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SCHEDULES

Section 2
SCHEDULE 1

Amendments of limitation act 1963

part i

sections substituted for section 3

Extension of time-limits for certain actions brought after death of injured person

3.-(1) The provisions of this section shall have effect in relation to -

(a) any such action as is mentioned in section 1 (2) of this Act, being an action in respect of one or more causes of action surviving for the benefit of the estate of a deceased person by virtue of section 1 of the Law Reform (Miscellaneous Provisions) Act 1934; and

(b) any action brought by virtue of the Fatal Accidents Acts for damages in respect of a person's death,

and, in relation to an action falling within paragraph (a) of this subsection, shall have effect to the exclusion of sections 1 and 2 of this Act.

(2) Section 2 (1) of the Limitation Act 1939 shall not afford any defence to an action falling within subsection (1) (a) or (b) of this section, in so far as it relates to a cause of action in respect of which -

(a) the court has, whether before or after the commencement of the action, granted leave for the purposes of this subsection; and

(b) the requirements of section 3B (1) of this Act are fulfilled.

(3) So much of section 3 of the Fatal Accidents Act 1846 as required actions under that Act to be commenced within three years after the death of the deceased shall not afford any defence to an action falling within subsection (1) (b)	of this section, in so far as it relates to a cause of action in respect of which -

(a) the court has, before the commencement of the action, granted leave for the purposes of this subsection; and

(b) the requirements of section 3B (2) of this Act are fulfilled.

(4) Nothing in subsection (2) or (3) of this section shall be construed as excluding or otherwise affecting -

(a) any defence which, in any action falling within subsection (1) (a) or (b) of this section, may be available by virtue of any enactment other than section 2 (1) of the Limitation Act 1939 or so much of section 3 of the Fatal Accidents Act 1846 as aforesaid (whether it is an enactment imposing a period of limitation or not) or by virtue of any rule of law or equity; or

(b) the operation of any enactment or rule of law or equity which, apart from those subsections, would enable such an action to be brought after the end of the period of three years from the date on which the cause of action accrued or the death of the deceased, as the case may be.

(5) In the application of this Part of this Act to an action brought by virtue of the Fatal Accidents Acts -

(a) any reference to a cause of action to which an action relates shall be construed as a reference to a cause of action in respect of which it is claimed that the deceased could (but for his death) have maintained an action and recovered damages; and

(b) any reference to establishing a cause of action shall be construed as a reference to establishing that the deceased could (but for his death) have maintained an action and recovered damages in respect thereof.

(6) In this section and section 3B of this Act "the deceased" means the person referred to in subsection (1) (a) or (b) of this section, as the case may be.

Applications for leave of court for purposes of s. 3

3A.-(1) Any application for the leave of the court for the purposes of subsection (2) or (3) of section 3 of this Act shall be made ex parte, except in so far as rules of court may otherwise provide in relation to applications which are made for the purposes of subsection (2) of that section after the commencement of the relevant action.

(2) Where such an application is made for the purposes of subsection (2) of section 3 of this Act before the commencement of any relevant action, or for the purposes of subsection (3) of that section, the court shall grant leave in respect of any cause of action to which the application relates if, but only if, on evidence adduced by or on behalf of the plaintiff it appears to the court that, if such an action were brought forthwith and the like evidence were adduced in that action, that evidence would, in the absence of any evidence to the contrary, be sufficient -

(a) to establish that cause of action, apart from any defence under section 2 (1) of the Limitation Act 1939 or so much of section 3 of the Fatal Accidents Act 1846 as is mentioned in the said subsection (3); and

(b) to fulfil the requirements of subsection (1) or, as the case may be, of subsection (2) of section 3B of this Act in relation to that cause of action.

(3) Where such an application is made for the purposes of subsection (2) of section 3 of this Act after the commencement of a relevant action, the court shall grant leave in respect of any cause of action to which the application relates if, but only if, on evidence adduced by or on behalf of the plaintiff it appears to the court that, if the like evidence were adduced in that action, that evidence would, in the absence of any evidence to the contrary, be sufficient -

(a) to establish that cause of action, apart from any defence under section 2 (1) of the Limitation Act 1939; and

(b) to fulfil the requirements of section 3B (1) of this Act in relation to that cause of action,

and it also appears to the court that, until after the commencement of that action, it was outside the knowledge (actual or constructive) of the plaintiff that the matters constituting that cause of action had occurred on such a date as (apart from section 3 of this Act) to afford a defence under section 2 (1) of the Limitation Act 1939.

(4) No appeal shall lie from any decision of the Court of Appeal on an appeal against a decision on an application under this section.

(5) In this section "relevant action" in relation to an application for the leave of the court, means any action in connection with which the leave sought by the application is required.

Requirements referred to in ss.3 and 3A

3B.-(1) The requirements of this subsection are fulfilled in relation to a cause of action if -

(a) it is proved that the material facts relating to that cause of action were or include facts of a decisive character which were outside the knowledge (actual or constructive) of the deceased at all times until his death or until a date less than three years before his death; and

(b) either -

(i) the action was brought not later than three years after the death of the deceased; or

(ii) it is proved that the said facts of a decisive character were at all times outside the knowledge (actual or constructive) of each relevant person until a date which was not earlier than three years before the date on which the action was brought.

(2) The requirements of this subsection are fulfilled in elation to a cause of action if it is proved that the material facts relating to that cause of action were or included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of each relevant person until a date which was not earlier than three years before the date on which the action was brought.

(3) In subsection (1) of this section, in its application to an action falling within section 3 (1) 
(a) of this Act, "relevant person" means any person who is or has been a personal representative of the deceased, including an executor who has not proved the will (whether or not he has renounced probate) but not anyone appointed only as a special personal representative in relation to settled land; and for the purposes of that subsection regard shall be had to any knowledge acquired by any such person while a personal representative or previously.

(4) In subsection (1) of this section and its application to an action falling within section 3 (1) (b) of this Act and in subsection (2) of this section, "relevant person" means, subject to subsection (5) of this section, any person for whose benefit the action is brought.

(5) Where, in determining whether the requirements of subsection (1) or (2) of this section are fulfilled in the case of an action falling within section 3 (1) (b) of this Act (whether on an application under section 3A of this Act or when that question subsequently falls to be determined), it appears to the court that those requirements would be fulfilled if any person had not been included among those for whose benefit the action is brought, the court shall -

(a) determine that question as if he had not been so included; but

(b) direct that, in so far as the action is brought for the benefit of that person, subsection (2) or, as the case may be, subsection (3) of section 3 of this Act shall not operate to displace any defence there mentioned, 

and those subsections shall have effect accordingly.

PART II

SECTION SUBSTITUTED FOR SECTION 9

Extension of time-limits for certain actions brought in Scotland after death of injured person

(9).-(1) Section 6 (1) of the Law Reform (Limitation of Actions, &c.) Act 1954 shall not afford any defence to an action to which this section applies, in so far as the action relates to any right of action in respect of which the requirements of subsection (3) of this section are fulfilled.

(2) This section applies to any action of damages in Scotland where the damages claimed consist of, or include, damages or solatium in respect of personal injuries sustained by the pursuer or any other person, being an action brought by or on behalf of a person to whom a right of action has (apart from subsection (5) of this section) accrued on the death of another person (in this section referred to as “the deceased”) in consequence of personal injuries sustained by the deceased.

(3) The requirements of this subsection are fulfilled in relation to a right of action if -

(a) it is proved that the material facts relating to the right of action were or included facts of a decisive character which were outside the knowledge (actual or constructive) of the deceased at all times until his death or until a date less than three years before his death; and

(b) either -

(i) the action was brought not later than three years after the death of the deceased; or

(ii) it is proved that the said facts of a decisive character were at all relevant times outside the knowledge (actual or constructive) of each relevant person until a date which was not earlier than three years before the date on which the action was brought.

(4) In subsection (3) of this section "relevant person" means -

(a) in relation to an action in respect of a right of action forming part of the estate of a deceased person, any person who is or has been a personal representative of the deceased, including an executor who has not been confirmed as such; and for the purposes of this paragraph regard shall be had to any knowledge acquired by any such person while a personal representative or previously;

(b) in relation to an action brought by or on behalf of a relative in respect of which the right of action was (apart from subsection (5) of this section) the death of the deceased, any person by whom or on whose behalf the action is brought:

Provided that where, in determining whether the requirements of this paragraph are fulfilled in the case of any such action as aforesaid, it appears to the court that those requirements would be fulfilled if any person had not been included among those by whom or on whose behalf the action is brought, the court shall -

(i) determine that question as if he had not been so included; but

(ii) direct that, in so far as the action is brought by or on behalf of that person, subsection (1) of this section shall not operate to displace any defence there mentioned,

and the said subsection (1) shall have effect accordingly.

(5) In relation to an action falling within this section -

(a) the death of the deceased shall not, and

(b) any circumstances falling within subsection (6) of this section shall, be regarded for the purposes of this Part of this Act as constituting a right of action.

(6) The circumstances referred to in paragraph (b) of subsection (5) of this section include any circumstances which would have constituted a right of action in relation to an action brought by the deceased before his death in respect of the personal injuries which caused his death.

(7) Subsection (4) of section 8 of this Act shall have effect in relation to an action to which this section applies as it has effect in relation to an action to which that section applies.

Section 3
SCHEDULE 2

TRANSITIONAL PROVISIONS RELATING TO PART I OF THIS ACT.

1. Subject to the provisions of this Schedule, Part I of this Act shall have effect in relation to causes of action which accrued before, as well as causes of action which accrued after, the commencement of this Act, and shall have effect in relation to any cause of action which accrued before the commencement of this Act notwithstanding that an action in respect thereof has been commenced and is pending at the commencement of this Act.

2. In the application of section 2 of the Limitation Act 1963 to an action which is pending at the commencement of this Act, subsection (3) of that section shall have effect with the omission of the words from "and it also appears" to the end.

3. In their application to an action which is pending at the commencement of this Act -

(a) section 3 of the said Act of 1963 as set out in Schedule 1 to this Act shall have effect with the omission in subsection (3) (a) of the words before "the commencement of the action";

(b) section 3A of that Act as set out in that Schedule shall have effect -

(i) with the omission in subsection (1) of the words "for the purposes of subsection (2) of that section" and in subsection (3) of the words from "and it also appears" to the end; and

(ii) as if subsection (3) applied (subject to the necessary modifications) to an application made for the purposes of subsection (3) of the said section 3 as well as to an application made for the purposes of subsection (2) of that section.

4. For the purposes of this Schedule an action shall not be taken to be pending at any time after a final order or judgment has been made or given therein, notwithstanding that an appeal is pending or that the time for appealing has not expired; and accordingly sections 1 and 2 of this Act shall not have effect in relation to a cause of action in respect of which a final order or judgment has been made or given before the commencement of this Act.

5. In the application of this Schedule to Scotland, paragraphs 2 and 3 do not apply, and for any reference to a cause of action there shall be substituted a reference to a right of action, and for any reference to an order or judgment being made or given there shall be substituted a reference to an order or decree being made or pronounced.
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