Matthew & Ors v Sedman & Ors

This is my extemporary judgment in the matter of Peter Matthew and five others (as claimants) –v- Barry Sedman and two others (as defendants), claim number D30MA538.

The application which is presently before the court raises a short but interesting and not unimportant point on the law of limitation. The question is this: 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? More pertinently for present purposes, if a cause of action accrued at the very first moment of Friday 3^rd June 2011, is a claim issued after Friday 2^nd June 2017 brought after the expiration of six years from the date on which the cause of action first accrued?

The background to the application presently before the court is as follows: On Monday 5^th June 2017 the claimants issued a claim form in the Manchester District Registry of the Chancery Division claiming equitable compensation, damages for breach of trust, an order for the reconstitution of the trust estate, an account, and further or other relief, with interest and costs. The first two claimants, Mr Peter Matthew and Mr Scott Nixon, sue as the trustees of the trusts of the will of the late Evelyn Hammond. Mrs Hammond died as long ago as 27^th December 1952 leaving a will dated 21^st August 1948. The beneficiaries of the trusts arising under that will are the third claimant, Diana Rose Cook (as life tenant) and the fourth, fifth and sixth defendants (as the remaindermen of the will trusts). The three defendants – Mr Barrie Sedman, Mr Thomas William Hallam and Mr Peter James Roberts – were the trustees of the will trusts until their retirement on 1^st August 2014 when they were replaced by the first and second claimants. At all material times, the defendants were professional trustees, being partners or employees of Forrester Boyd Chartered Accountants.

The principal asset of the trust comprised shares in Cattles plc. In 1994, Cattles acquired Welcome Financial Services Limited. By April 2004 the trust owned almost 162,000 shares in Cattles which, as of 5^th April 2008, were valued at some £393,000. In April 2009, trading in Cattles’ shares was suspended and in December 2010 both Cattles and Welcome commenced court proceedings for court sanctioned schemes of arrangement. In the case of the Welcome scheme, the supervisor was KPMG. As a result of an order made by Mr Justice Newey on 28^th February 2011 the schemes of arrangement were sanctioned. That order was registered at Companies House on 2^nd March 2011. The terms of the scheme of arrangement included provision for claims to be submitted by shareholders.

By clause 3.6, and subject to an exception not material hereto, in order to be entitled to any scheme payment, scheme creditors were required to submit a claim form on or prior to the ‘Bar Date’. Clause 3.5.3 provided in terms that claim forms must be sent to the scheme supervisors to arrive on or before the Bar Date. By clause 3.9 (headed “Variation of Time Limits”) the scheme supervisors had a power in their absolute discretion to extend time limits in exceptional circumstances outside the control of a submitted scheme claimant, but that power expressly did not apply to a failure to comply with the Bar Date. The Bar Date was defined as meaning the first business day falling three months after the ‘Effective Date’. The Effective Date was the date on which the scheme became effective in accordance with clause 1.5.1. That was the date on which an office copy of the final court order was delivered to the Registrar of Companies for registration. As I have indicated, that was 2^nd March 2011.

I am satisfied, on a true construction of the scheme document, that the Bar Date in the present case was 2^nd June 2011, which was in fact a Thursday. That was understood by the scheme administrators, KPMG, to be the Bar Date although, as has been pointed out to me, their understanding is strictly not binding on the court and the Bar Date is to be objectively ascertained by a true reading of the scheme documents. I am satisfied, however, that in order to be validly made, any claim had to be submitted on or before Thursday 2^nd June 2011.

Paragraph 24 of the Particulars of Claim asserts that the defendants did not make any claim in the Welcome scheme before that scheme’s Bar Date. A late application was apparently made outside the Bar Date but was refused by the scheme administrators. Paragraph 33 of the Particulars of Claim asserts that in relation to the Welcome scheme, the defendants negligently and/or otherwise in breach of duty failed to make any claim in that scheme before that scheme’s Bar Date. There is also a claim arising out of an alleged failure to submit and/or evidence a properly formulated claim in relation to the Cattle scheme but that part of the claim is not relevant to the present application and I say no more about it.

Paragraph 3 of the defence pleads that, as set out in a strike-out application dated 4^th July 2017, the Welcome claim has been issued out of time and is consequently statute-barred pursuant to sections 2 and/or 5 of the Limitation Act 1980. By an application notice dated 4^th July 2017 and issued on 5^th July 2017 the defendants apply to strike out the claim under CPR 3.4(2)(a) on the footing that the statement of case discloses no reasonable grounds for bringing the claim, or alternatively for summary judgment under CPR 24 on the footing that the claim has no real prospect of success and there is no other compelling reason why the matter should proceed to a trial. That application is supported by the first witness statement of Miss Lesley-Ann Hamlyn dated 4^th July 2017, together with exhibit LAH/1. Miss Hamlyn is a solicitor and principal associate with the defendants’ solicitors, Mills & Reeve LLP.

The application is opposed by a witness statement from Mr Ian Barry Dearing dated 16^th November 2017 and exhibiting various documents as exhibit IBD/1. Mr Dearing is a consultant solicitor with the claimants’ solicitors, Steele & Son. The defendants have responded to that evidence by way of a first statement from Miss Kelly Hockley, who at the time was a para-legal with Mills & Reeve and is now a chartered legal executive with that solicitors’ practice. Her witness statement is dated 21^st November 2017 and exhibits various documents as exhibits KH/1 and KH/2.

The applicant defendants are represented by Miss Clare Dixon (of counsel) who has submitted a detailed written skeleton argument dated 23^rd November 2017. The claimants and respondents are represented by Mr Christopher McNall (also of counsel) who has submitted a written skeleton argument dated 19^th November 2017 but which only reached me shortly before the hearing commenced this morning. I have been addressed by both Miss Dixon and Mr McNall, who have presented eloquent and effective oral submissions supporting and supplementing their written skeleton arguments.

For the defendants, Miss Dixon submits that since the bar date was Thursday 2^nd June 2011, the trust, then acting by the defendants, had, in order to comply with the scheme requirements, to submit its claim on or before midnight between 2^nd and 3^rd June 2011. Miss Dixon submits that because the time for making a claim in the Welcome scheme expired at midnight between 2^nd and 3^rd June 2011, the claimants’ cause of action was complete at the very beginning of 3^rd June 2011. Proceedings therefore had to be issued six years from the very first moment of 3^rd June 2011 and thus, Miss Dixon says, by the end of Friday 2^nd June 2017. The claim form was issued on Monday 5^th June and is therefore out of time.

The relevant periods of limitation are: (1) Section 2 of the Limitation Act 1980, which provides that an action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued. In tort, it is said that the cause of action accrues when the relevant party first suffers actionable damage, and in this case that happened at the very first moment of 3^rd June 2011. (2) Section 21(3) of the Act, which provides that an action by a beneficiary in respect of any breach of trust shall not be brought after the expiration of six years from the date on which the right of action accrued. In the case of breach of trust, it is said that that cause of action arises when the breach of trust is committed, or the date when the beneficiary first suffers loss. In this case, again, it is said that that was at the very first moment of 3^rd June 2011. Thus, Miss Dixon says that, whether the claim is couched as being for negligence or for breach of trust, the date when the cause of action accrued is the same. It is the first point at which the time for making a claim under the Welcome scheme had expired, and thus the very first moment of Friday 2^nd June 2011.

In support of her contention that the claimants’ cause of action was complete at the beginning of 3^rd June 2011, and therefore proceedings had to be issued by the end of Friday 2^nd June 2017, Miss Dixon relies upon observations of Mr Justice Channell in the case of Gelmini –v- Moriggia [1913] 2 KB 549. That case decided two points. The first was that where a cause of action expires on a date when the court office is closed, such as a weekend, time for issuing proceedings is not extended until the next day when the court office is open. On that point, Miss Dixon accepts that the decision has been overruled by subsequent authority. In particular, it was overruled in terms by the Court of Appeal in the later case of Pritam Kaur –v- S. Russell & Sons Ltd [1973] QB 336. But Miss Dixon says that Gelmini –v- Moriggia also decided a second point. The claim in that case had been for the payment of a promissory note. Time for payment had expired on a particular day, and it was held that time began to run from the very first moment of the day following that upon which payment had been due. At page 552, Mr Justice Channell said this:

“The other point is, what is the true rule as to the computation of the six years under that statute? An action cannot be brought until the cause of action is complete, and in all cases of contract the person who has to pay has the whole of the day upon which payment is due in which to pay; therefore until the expiration of that day an action cannot be brought because until then there is no complete cause of action. 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. If the cause of action is not complete, the action cannot be brought. It therefore follows that that day is one of the days upon which the action can be brought. The words of the statute are ‘within six years next after the cause of such action or suit.’ Now the day after that on which the debtor’s time for paying expires is, in my opinion, the date on which the cause of action arises, and on that day an action can be brought, and that day is the first of all the days in the six years. Therefore, assuming that the day upon which the action can be brought to be a Thursday, and the period for bringing the action to be a week, the creditor can bring it at any time up to and including the following Wednesday, but not the Thursday. And the same rule applies where the period, as under the statute, is six years. 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...”

Miss Dixon accepts that where a cause of action accrues during the course of a day, that day is excluded and time starts to run from the following day. Miss Dixon accepts that that is the effect of the decision of Mr Justice Havers in the case of Marren –v- Dawson Bentley & Co Ltd [1961] 2 QB, 135. That, however, is said not to be the situation here. In the instant case, as in Gelmini, the cause of action accrued on the stroke of midnight and so existed throughout 3^rd June 2011. As a result, proceedings had to be issued by the end of 2^nd June 2017, and not by the end of Saturday 3^rd June 2017. Had that been the position, Miss Dixon accepts that since 3^rd June 2017 was a Saturday, the proceedings would have been validly issued on the following Monday, 5^th June, as indeed they were; but she says that since the cause of action had accrued on 3^rd June 2011, the six years limitation period had expired on Friday 2^nd June 2017 and not on Saturday 3^rd June as the claimants contend.

Miss Dixon also anticipated reliance by the claimant on the Court of Appeal decision in the case of Pritam Kaur –v- S. Russell & Sons Ltd (previously cited). There, the cause of action was a personal injury which had occurred on 5^th September 1967. Following the decision in Marren, which was held to have been correctly decided, and because, Miss Dixon says, that was a personal injury claim where the accident had occurred during the course of 5^th September, that day was not counted in computing the period of time, so that time had started to run from 6^th September 1967. It was against that background that Lord Denning MR had said, at page 339 letter H, that “one should exclude from the computation the day on which the accident occurred”, namely 5^th September 1967. On that basis, the last day for issue was 5^th September 1970, which was a Saturday, and therefore the writ had validly been issued on the following Monday. Miss Dixon distinguishes the Kaur case. She says that in the instant case, and in accordance with Gelmini, Friday 3^rd June 2011 had fallen within the computation, with the result that, counting six years from 3^rd June 2011, the last day for issue was Friday 2^nd June 2017, and not the following day, Saturday 3^rd June 2017.

In the course of her oral submissions, Miss Dixon took me through the Gelmini and Marren decisions. She emphasised that Gelmini had involved the non-payment of a promissory note and not an accident sounding in damages in tort. The cause of action in Gelmini, as in the instant case, had accrued on the first moment of the day following the last day in Gelmini for making payment of the promissory note, and in the instant case for submitting a claim in the scheme. Miss Dixon submitted that in such a case, the six years period does not tip into the day following the sixth anniversary of the day on which the cause of action accrued. Miss Dixon referred me to the commentary in McGee on Limitation Periods (7^th edition) at paragraphs 2.005 through to 2.007. There it is stated that:

“The general rule in calculating the expiry of a limitation period is usually expressed as being that parts of a day are ignored.”

That formulation is said to be ambiguous and to need to be clarified by way of example. Reference is made to the Gelmini case, which is said to be the simplest possible example since the cause of action was held to accrue at the very beginning of a day. Greater complexities are said to arise where the cause of action accrues during the course of a day. In that context, reference is made to the Marren decision. There, the plaintiff had been injured in an accident at 1.30 p.m. on 8^th November 1954 and the writ had been issued on 8^th November 1957. Mr Justice Havers held that time had not expired at the end of November 7^th 1957. He held that the day on which the cause of action accrued was to be disregarded in calculating the running of time. It therefore followed that time began to run at the first moment of November 9^th 1954 and had expired at the end of November 8^th 1957. The writer records that Mr Justice Havers had expressly declined to follow Gelmini but he states that it is not clear whether the judge’s decision is inconsistent with that in Gelmini. The latter case is said to deal with one very specific situation, namely where the cause of action must accrue on the stroke of midnight. It is said to be arguable that in such a case there is no question of disregarding any part of a day. The cause of action was in existence throughout the whole of September 23^rd 1906. Consequently, it might be argued that on those very special facts, the Gelmini decision was still good law.

The alternative is said to be to say that time did not begin to run until the start of September 24^th 1906 which is said to seem to be a very odd conclusion, given that the time for payment had expired at the very end of September 22^nd. The writer submits that the cases are reconcilable, and that both are correct on the point. The rule is that any part of a day, but not a whole day, happening after the cause of action accrues is excluded from the calculation of the limitation period. Strictly speaking, this will normally lead to the extension of the limitation period by a few hours; but it could equally be argued that the contrary rule would lead to the shortening of that period.

Miss Dixon accepted and adopted the author’s analysis. She submitted that the two cases of Gelmini and Marren were entirely reconcilable. She pointed out that different factual scenarios are capable of giving rise to different results. Miss Dixon referred to, and distinguished, the Court of Appeal’s decision in the Pritam Kaur case. She submitted that in the present case the Effective Date was 2^nd March 2011, and therefore the Bar Date was 2^nd June 2011. You excluded that date, and you then started counting the limitation period from the very beginning of the following day, that is to say from the very beginning of 3^rd June 2011. Going forward six years from that date, the last day for issuing a claim form was 2^nd June 2017. A claim issued on 3^rd June 2017, even if that were possible because the court office was open, would have been out of time. Therefore, it was not permissible to issue (because 3^rd June 2017) was a Saturday, the following Monday, 5^th June, being the next day when the court office was open. One started counting at the beginning of 3^rd June 2011; six years from then was not Saturday 3^rd June 2017 but Friday 2^nd June 2017.

Mr McNall submitted that one excluded 3^rd June 2011 from the calculation for Limitation Act purposes. He emphasised that a claim would have been validly submitted under the scheme if submitted up to the last moment of 2^nd June 2011. The cause of action only arose because of the failure to lodge the claim form on or before that day. It followed, Mr McNall submitted, that no cause of action was complete until just after midnight between 2^nd and 3^rd June 2011. He submitted that one excluded the date on which the cause of action arose, and it made no difference whether the cause of action arose at one minute past midnight on that day or at one minute before midnight on the next day; one had the whole of that day excluded from the calculation for Limitation Act purposes. In order to avoid complicated enquiry as to precisely when on a particular day the cause of action arose, one excluded the whole of that day from the calculation for Limitation Act purposes. That was said to follow from the reserved judgment of Mr Justice Havers in the Marren –v- Dawson Bentley case. At page 138, Mr Justice Havers had said that the accident had occurred at 1.30 p.m. on November 8^th, and the writ had been issued on November 8^th, three years later. Counsel for the defendant had contended that as the accident had happened at 1.30 p.m. on November 8^th 1954 the plaintiff could, if he had wished, have issued his writ that day, and therefore the last day upon which he would be entitled to bring his action would be November 7^th 1957; and that as the writ was issued on the following day, his action was barred by the statute.

Relying upon observations in the then current edition of Halsbury’s Laws of England, and on the decision of the Divisional Court in an earlier authority, Radcliffe –v- Bartholomew [1892] 1 QB, 161, Mr Justice Havers had taken the view that one excluded the whole of the day on which the action occurred. Mr Justice Havers said that he thought that the principle established by the Divisional Court in Radcliffe –v- Bartholomew was of general application and that he was bound by the decision in that case; but, if he was constrained to choose between Radcliffe –v- Bartholomew and the decision of Mr Justice Channell in the case of Gelmini, then Mr Justice Havers preferred the decision in Radcliffe –v- Bartholomew and the reasoning on which it was based.

Mr McNall also relies upon the Court of Appeal’s decision in the Pritam Kaur case. He points to the fact that at page 349, letter G, Lord Denning MR said that insofar as Gelmini –v- Morrigia had proceeded on the footing that time was not extended, it was no longer to be followed. Miss Dixon rightly points out that that indication that Gelmini was no longer to be followed was only directed to the point as to what happened when a limitation period expired on a date when the court office was closed. It was only on that point that Mr Justice Channell’s decision had been overruled; and Miss Dixon did not rely upon Gelmini for that particular point.

Mr McNall also pointed to what Lord Denning had said at page 349, letters C to D, referring to arguments about whether a period when the court office was closed should be taken into account or excluded. Lord Denning had said that the arguments were so evenly balanced that they could come down either way. The important thing, he said, was to lay down a rule for the future so that people would know how they stood. Mr McNall said that in the present case, one should lay down a clear rule that, no matter when on a particular day the cause of action arose, that day was to be excluded for computing the relevant period for Limitation Act purposes. One should always exclude the day on which the cause of action arose from consideration. There should be no exception when the cause of action accrued just after the stroke of midnight on that day. To make an exception where the cause of action arose just on the stroke of midnight would be productive of anomalies and absurdity. It would make the identification of a clear line as to when the cause of action arose impossible to police. Here one should exclude 3^rd June 2011 from the calculation for Limitation Act purposes. On that footing, the action had been commenced within the applicable limitation period.

In his skeleton argument, Mr McNall had advanced arguments on the basis that there had been some form of “in principle” agreement to suspend the running of the limitation period. In the course of his oral submissions, Mr McNall expressly withdrew any allegation of sharp practice on the part of the defendants’ solicitors. I did not understand him to be pursuing the allegation that there had been any binding agreement, even in principle, to suspend the operation of the Limitation Act; but if I am wrong in that, then I should make it clear that I am satisfied, on the basis of the analysis contained within Miss Hockley’s witness statement, and in the light of Miss Dixon’s submissions, that there was no agreement to suspend the normal operation of the Limitation Act.

Mr Dearing had been aware that he had had to issue a claim form on Friday 2^nd June or run the risk that a limitation argument might be mounted against him. Somewhat surprisingly, as he relates at paragraphs 14 and 15 of his witness statement, he had left the office shortly after 2 p.m. and had gone on a visit with his 7-year-old granddaughter. He says that he did so under the mistaken impression that the terms of a standstill had already been agreed between himself and the defendants’ solicitors; but I am satisfied, on the evidence, that he must have appreciated that the matter had not been concluded and was still on-going; and I accept Miss Dixon’s submission that he took a risk in that regard. I need say no more on that aspect of the matter because I do not understand it to be pursued by Mr McNall.

I therefore deal with the real matter in issue between the parties. I am satisfied that the cause of action accrued at the first moment of 3^rd June 2011. The claimants had had to issue their claim form before the expiration of six years from that date. In the event, it was issued on Monday 5^th June 2017. Although, if the limitation period had expired on Saturday 3^rd June, that would have been sufficient to defeat the operation of the Limitation Act, if the expiration of the period of six years from the date the cause of action accrued was Friday 2^nd June 2017, then the claim is out of time. If, however, the expiration of six years from the date the cause of action accrued was Saturday 3^rd June 2017, then, because for limitation purposes one disregards days when the court office is closed, the claim was validly issued on Monday 5^th June 2017. The question is whether one excludes 3^rd June 2011 from consideration for Limitation Act purposes. Mr McNall submits that one should; Miss Dixon disputes that.

It seems to me that in principle the expiration of the period of six years from the date the cause of action accrued was indeed Friday 2^nd June 2017. If one goes back to the year 2011, the time for submitting a claim form had expired at the end of Thursday 2^nd June 2011. The trustees could in principle have issued a valid claim form on Friday 3^rd June 2011. They had six years from, and including, that day to do so. They did not issue the claim form until the Monday following Saturday 3^rd June 2017. A claim form issued on Saturday 3^rd June 2017 would, it seems to me, in principle have been issued more than six years from the day on which the cause of action arose because the cause of action had arisen at the very first moment of Friday 3^rd June 2011.

Does the fact that the courts have established a rule that one excludes the date on which the cause of action arose change the position? Miss Dixon says that that rule only applies where the cause of action arose during the course of the day, and not when it arose at the very first minute of the day. I can see the good sense of a rule that, if the cause of action arose during the course of a day, you exclude that day for the purpose of calculation for Limitation Act purposes. If you do not exclude the day, then the claimant would not have a full six years period within which to bring his cause of action. But if the cause of action accrues at the very first moment of that day, then he does have the full six years, even if you exclude that day from the computation.

Mr McNall points to possible uncertainties as to when a cause of action accrues during the course of a particular day, and to the convenience of a rule whereby you exclude any part of that day from the calculation for Limitation Act purposes. I can see the good sense of that where there may be difficulty in establishing the precise point in time during the day when the cause of action arose, and also in cases where it is necessary to exclude that day to ensure that the claimant has a full six years period, and not a six years period less the number of hours of the day in question before the cause of action arose. Where, however, it is absolutely clear that the cause of action arose at the very instant the day began, it does not seem to me that there is any justification for excluding that day from the calculation for Limitation Act purposes. I note that in Marren, counsel for the plaintiff, at page 137, had submitted that Gelmini was a case in contract, where the cause of action was complete at the beginning of the first day and an action could have been brought on that day. In tort, the cause of action may not accrue until late in the day, and on the hypothesis that the limitation period was reduced to one day the position would be absurd, for no action would then lie. Therefore, Gelmini should be distinguished, and the reasoning of the court in Radcliffe –v- Bartholomew applied.

Mr Justice Havers does not appear to have adopted that argument in arriving at his considered decision; but the argument shows that Gelmini was distinguishable from Marren and that the two cases are capable of being reconciled in the manner that the author of McGee on Limitation Periods explains.

In my judgment, where it is absolutely clear that the cause of action arises at the very beginning of a particular day, that day should not be excluded from the calculation for Limitation Act purposes. At any moment during that day the claimant can bring a claim; and to exclude that day from the calculation for Limitation Act purposes would have the effect of giving him an extra day over and above the statutory limitation period for bringing the claim. I therefore accept Miss Dixon’s argument that where the cause of action is complete at the very beginning of a particular day, you exclude that day for the purposes of calculating the limitation period. On that footing, the limitation period in the present case began on 3^rd June 2011 and expired at the very end of 2^nd June 2017. On that basis, the last day for issuing the claim form was Friday 2^nd June 2017, and this claim is out of time.

I am not sure that the appropriate relief to grant is to strike out the claim under CPR 3.4(2)(a) on the footing that the statement of claim discloses no reasonable cause of action because it does not actually identify the day when the claim under the scheme was barred. But it does seem to me that it is appropriate to grant summary judgment to the defendants on their Limitation Act defence, in relation only, of course, to the Welcome claim and not to the Cattle’ claim, which the defendants accept was brought in time.

Those are my reasons for upholding the claim for summary judgment.