Civil Procedure

Limitation when cause of action accrues at midnight

When a cause of action accrues during the course of a day, that day is disregarded for limitation purposes.

But when the cause of action accrues at midnight, is the following day disregarded?  This was the question for the High Court in Matthew v Sedman [2017] EWHC 3527 (Ch).

The defendants provided services to the claimants, the trustees of a family trust.  Following the suspension of trading in the shares held in the trust, creditors were required to submit a claim for payment on or before 2 June 2011.  The defendants failed to do so.  This gave rise to a cause of action.  The claimants issued their claim on Monday 5 June 2017 (the first working day after Saturday 3 June 2017).

The claimants contended that the day on which the cause of action accrued was always disregarded for limitation purposes.  As the cause of action arose just after midnight on 3 June 2011, that day was excluded and limitation did not expire until 3 June 2017.

The defendants argued that the claim form should have been issued on or before Friday 2 June 2017.  In Gelmini v Moriggia [1913] 2 KB 549, the claim was for the payment of a promissory note – an obligation that could have been fulfilled up until midnight on the day in question.  the court had said:

“The result is that an action cannot be brought until the next day; but it can be brought on that day because the cause of action is complete at the commencement of that day.  …  I do not think that the day on which the cause of action arises is excluded.  It is the previous day which is excluded, i.e. the day at the expiration of which the cause of action becomes complete…”

The court held that to apply the usual principle in a case such as this would give a claimant not just a part of a day, but an entire extra day over the limitation period for bringing the claim.  In these circumstances, therefore, the Gelmini principle applied; the claim was out of time; and it was summarily dismissed.

The lesson?  If a defendant has caused you loss by missing a deadline, keep an eye on deadlines yourself.


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