Midnight deadlines: Calculating limitation in civil litigation

A recent Supreme Court judgment[1] has shed some light on a tricky area of procedural law: calculation of limitation when the claimant’s cause of action accrues “at the stroke of midnight”. Does the day immediately beginning count as part of the limitation period or not?

Before we explore at the facts of this case and the implications of the Supreme Court’s judgment, we will take a very quick look at some of the principles at play when it comes to calculating the limitation period.  In general terms, the limitation period is the time in which an aggrieved party must bring a claim after their rights in law have been infringed.  If they fail to issue the claim during the limitation period, the counter-party will have a limitation defence which ought to defeat the claim regardless of its underlying merit.  As a matter of public policy, this is to provide comfort to businesses and organisations that they cannot be pursued for claims many decades later (save in cases of fraud). 

There are different regimes depending on the nature of the claim, but for the purposes of this case, the relevant statutory regimes are those set out in sections 2 and 5 of the Limitation Act 1980, as follows:

 “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”; and

 “An action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued”.

The crucial question is therefore to understand the date from which to start counting.  General legal principles supply the answer: if the cause of action arises during the course of a day, that day is excluded for the purposes of counting the six years. So, if a contract is breached at 10am on a Monday, the limitation clock starts ticking on the Tuesday.

The tricky point the Supreme Court had to decide in the case of Matthew and Others v Sedman and others [2021] UKSC 19 was as follows: if a cause of action accrues at midnight on a particular day does the day that immediately follows count towards limitation or not?

The facts of the case set out the practical problem:

• The claim was brought by current trustees against the former professional trustees of a trust;
• The Trust held shares in a listed company which had entered into a scheme of arrangement[2] following the suspension of trading in its shares after publication of misleading information in its annual report and prospectus;
• As a result of the misleading information, the Trust could have made a claim in the scheme of arrangement; however such claims had to be submitted on or prior to 2 June 2011. The key point was that the claim could be submitted up until midnight on 2 June 2011;
• The former trustees did not make a claim under the scheme of arrangement on or before 2 June 2011. The current trustees argued that the former trustees had acted negligently in failing to do so;  
• The current trustees issued their claim for professional negligence and/ or breach of contract against the former trustees on Monday 5 June 2017.

If 3 June 2011 was excluded from the calculation and the limitation clock started ticking on 4 June 2011, the claim would be in time provided it was issued on or before Monday 5 June 2017[3]; if, however, time started to accrue on 3 June 2011 (i.e. immediately after the expiry of the midnight deadline) the claim was too late and would be struck out.

In the Court of Appeal decision, Lord Justice Irwin had said:

“I confess that I have 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? A claim under such a scheme made literally on the point of midnight (if such a thing could be proved) might arguably be in time. If it is accepted that such a claim accrues after midnight, even by a very short time (described in the hearing before us as a "nanomoment"), then is there a logical reason why it should be distinguished from other categories of claim, some of which will accrue very early in the relevant day?”

In the Supreme Court’s view, the 3 June 2011 had to be included in the limitation calculation.  This was because “3 June 2011 was for practical purposes a complete undivided day”.  Lord Stephens noted:

“I consider that it would impermissibly transcend practical reality if the stroke of midnight or some infinitesimal division of a second after midnight, led to the conclusion that the concept of an undivided day was no longer appropriate. In that sense this would not only be impermissible metaphysics but also, in this context, such a minimum period of time does not cross the threshold as capable of being recognised by the law. Whether the issue is framed in terms of metaphysics, which the common law eschews, or of the principle that the law does not concern itself with trifling matters, the conclusion is the same: realistically, there is no fraction of a day. . . . If in this case 3 June 2011 were excluded from the computation and if the limitation period were a single day, then the impact would be to allow two complete days within which to commence an action . . . “

Consequently, the Claimant had issued its claim too late and the claim was time-barred.

The judgment gives clear and unequivocal guidance on a practical point of significance to anyone involved in a dispute which may escalate to litigation: when involved in a “midnight deadline” case, the day that commences immediately after midnight counts towards limitation.

It is also a helpful reminder about the importance of accurately diarising limitation periods and seeking specialist advice when in doubt as the consequences of getting the calculation wrong can be dramatic. Our specialist team of dispute resolution experts are on hand to assist with all aspects of litigation, including reviewing limitation periods.

If you would like to discuss this topic in more detail, please contact Judith Hopper, Partner, or Kyle Duggan, Associate.

[1] Matthew and Others v Sedman and others [2021] UKSC 19 https://www.supremecourt.uk/cases/uksc-2019-0080.html 

[2] A Court-sanctioned agreement between a company and its creditors

[3] There is a well-established principle that if a limitation period ends on a weekend or day the Court office is not open the claim can be issued on the first working day immediately following the weekend so here even though limitation would have expired (on this argument) on Saturday 3 June the claimant could issue on the following Monday and be in time.