“(1) A member of a company may apply to the court by petition for an order under this Part on the ground— (a) that the company’s affairs are being or have been conducted in a manner that is unfairly prejudicial to the interests of members generally or of some part of its members (including at least himself), or (b) that an actual or proposed act or omission of the company (including an act or omission on its behalf) is or would be so prejudicial.”
“(1) An action upon a specialty shall not be brought after the expiration of twelve years from the date on which the cause of action accrued. (2) Subsection (1) above shall not affect any action for which a shorter period of limitation is prescribed by any other provision of this Act.”
“An action to recover any sum recoverable by virtue of any enactment shall not be brought after the expiration of six years from the date on which the cause of action accrued.”
“(1) The following time limits under this Act, that is to say— … (d) the time limit under section 8 for actions on a specialty; (e) the time limit under section 9 for actions to recover a sum recoverable by virtue of any enactment … shall not apply to any claim for specific performance of a contract or for an injunction or for other equitable relief, except in so far as any such time limit may be applied by the court by analogy in like manner as the corresponding time limit under any enactment repealed by theLimitation Act 1939 was applied before1st July 1940 . (2) Nothing in this Act shall affect any equitable jurisdiction to refuse relief on the ground of acquiescence or otherwise.”
“An action upon a specialty shall not be brought after the expiration of twelve years from the date on which the cause of action accrued.”
“But the word is generally taken in the law of England, and indeed is here considered, in a more restrained sense, and applied only to an agreement in writing under seal. By covenants therefore are meant those clauses of agreement contained in a deed, whereby either party stipulates for the truth of certain facts, or binds himself to perform, or forbear doing, some thing to the other. For the breach of these covenants the party injured is entitled to relief by (a) an action, or writ of covenant against the covenantor, founded on the deed … “A covenant is not a duty, nor cause of action, till it be broken; so that it is not discharged by a release of all actions: and when it is broken, the action is not founded merely on the specialty, as if it were a duty, but savours of trespass, and sounds in damages, and therefore an accord is a good plea to it.” (Emphasis added.)
“With regard to actions arising by virtue of statutory provisions, to which at present the twenty year period applies as being actions upon a specialty, we recommend that in future the six year period should apply, but this recommendation is not intended to affect any special period of limitation prescribed by any enactment for special classes of action.”
“An action upon a specialty shall not be brought after the expiration of twelve years from the date on which the cause of action accrued: Provided that this subsection shall not affect any action for which a shorter period of limitation is prescribed by any other provision of this Act.”
“For practical purposes, a specialty may be treated as an obligation entered into by deed under seal, a form often used for, among other transactions, major building contracts.”
“This is an action of debt: it professes to be an action upon [the above-mentioned statutes]. I think it is an action upon statute ... But for the act of parliament, no action could be brought by the company against one of its own members. This, therefore, is an action brought in respect of a liability created by statute, and therefore is an action founded upon the statute, and the plea which relies upon the six years’ limitation is no answer to it …” (Emphasis added.)
“It is manifest, upon reading the declaration, that it is a declaration in debt upon these two statutes. Now, a declaration in debt upon a statute, is a declaration upon a specialty; and it is not the less so because the facts which bring the defendant within the liability, are facts dehors the statute: that must constantly arise in actions for liabilities arising out of statutes. … There may, undoubtedly, be cases where a statute enables an action to be brought, which nevertheless is not an action on the act of parliament. But the question is, whether that state of things exists here. I think it manifestly appears that this is an action of debt, and upon the statute, and therefore an action upon a specialty.” (Emphasis added.)
“If the words of section 2(1)(d) are given their ordinary meaning I have no doubt that they cover this case. The sum sued for is only recoverable because it vested in the appellants’ predecessors ‘by virtue of this Act and without further assurance’ (see section 14(1)), and this is an action to recover it. I doubt whether the words of section 2(1)(d) are capable in any context of bearing a meaning which would not cover this case…”
“this distinction seems to me so difficult that it does not surprise me that Parliament should abolish it, and the words of section 2(1)(d) are so clear that I do not think it possible to force on them the interpretation which the appellants put forward.”
“the wording introduced bysection 2(1)(d) of the Limitation Act 1939 , namely, ‘actions to recover any sum recoverable by virtue of any enactment,’ seems to me to be wording which precisely covers the present action. It was an action to recover the sum of£34,500 which was recoverable by virtue of the Act of 1947.
“In my judgment, if and so far as theLimitation Act 1980 applies to a cause of action arising out of the enfranchisement provisions of the Leasehold Reform Act, the applicable provisions are those contained in section 8 and the appropriate period of limitation is 12 years.”
“The obvious and most common case of an action upon a specialty is an action based on a contract under seal, but it is clear that ‘specialty’ was not originally confined to such contracts but extended also to obligations imposed by statute.” (Emphasis added.)
“It seems to me to be quite clear that in the instant case any cause of action which the applicant has derived from the statute and from the statute alone. Apart from the statutory provisions he could have no claim and it is only by virtue of the statute and the regulations made thereunder that there can be ascertained the amount of the price to be paid under the statutory contract the terms of which can be gathered only from the sections of the Act and the Schedules.”
“It is common ground between the parties that a ‘specialty’ includes an Act of Parliament and that prima facie a statutory cause of action created by theInsolvency Act 1986 will be a specialty within the meaning of sections 8 and 9 of the Limitation Act.”
“On this basis, there is no reason why claims under this section should not be subject to some time limit.”
“The essence of a specialty is a covenant under seal or an obligation imposed by statute”
“However a specialty may also be a debt due under a statute”
“the term ‘specialty’ in section 5(3) of the LAA refers generally to a contract under seal, with a specialty debt being a debt due under seal. It may also extend to debts due under a statute.”
“First, [section 10(1)(d)] only applies to ‘an action to recover a sum’. The Council’s proceedings were not of that character. The proceedings were for declaratory relief, the grant of which always depended upon an exercise of discretion in favour of the Council. An action to recover a sum is apt to describe an action for a debt, rather than declaratory relief depending upon the exercise of discretion.” (Emphasis added.)
“The court’s exercise of its power under section 174 involves the application of equitable principles. ‘Actions to recover any sum recoverable by virtue of any enactment’ is apt to cover claims where a money order is available as a matter of right. That is consistent with the actions in section 4(1)(a) actions in tort or contract, (b) actions to enforce a recognisance and (c) actions to enforce an award. It is not, however, apt to refer to a proceeding where the court is required to weigh equitable considerations and to decide which of a number of remedies best fits the circumstances of the case. When the court in its discretion orders compensation under section 174(2)(b), it is not granting relief which the plaintiff can claim as a matter of right, but has selected that remedy as appropriate to relieve against the unfairly prejudicial conduct.” (Emphasis added.)
“It could apply only to the court’s power to order compensation under section 174(2)(b). There seems no principled reason why money orders under section 174 should be subject to a time limit, but others should not be. Moreover, given the equitable nature of the court’s jurisdiction, it is antithetical that black letter time-bars should apply.”
“It would stand to reason that the applicability of limitation should be determined based not upon the remedy that is being sought, but rather based upon the nature of the cause of action. This, in my judgment, would be the only coherent way to differentiate between different classes of actions and the applicability of limitation thereto. For instance, in an oppression action, it should not matter whether the plaintiff seeks to impose a restraint on the company, for his shares to be bought out, for the company to be wound up, or for a compensatory payment to be made to him. The period of limitation, if any, should be the same, regardless of the remedy sought, for as long as the actions are founded upon the same specific cause of action.”
“A member of a company has no right to petition for relief for unfair prejudice apart from section 994. The right to go to court is not one created either by the common law or by equity. That is illustrated by the instant case in which Zedra’s petition is based upon breach of statutory duties (which codify earlier fiduciary duties) which are owed by the directors to the company rather than to Zedra itself. It follows, in my judgment, that in principle a petition seeking relief under section 994 is subject to the limitation period laid down in section 8.”
“Subject, therefore, to one question, namely whether the word ‘specialty’ as used in theLimitation Act 1939 and the Act of 1980 has assumed a more limited meaning than it originally bore, I have no doubt at all that the applicant’s claim is a claim on a specialty”
“I do not for my part see that it follows that the ancient and accepted meaning of ‘specialty’ as including causes of action based on statute was in any way altered”
“There is a new cause of action created by section 4 … No such cause of action exists apart from the statute”
“The appellant is bringing an action which but for section 4 of the Act he could not bring. The action is therefore brought on a specialty and the limitation period is twenty years.”
“From the point of view of limitation, this regime had two palpable defects. First, where a claim was brought more than six years but less than 12 years after an extortionate credit bargain was made, the extent of the relief which the court could grant depended on what sums the debtor had already paid and what sum was still outstanding. This appears arbitrary. In Rahman v Sterling Credit Ltd… [the] Court of Appeal held that, insofar as the debtor was seeking relief from the obligation to pay amounts still owing, the action had been brought in time as the applicable limitation period was 12 years; but any claim for repayment of sums of money already paid under the credit agreement would be time-barred. Thus, a debtor who had made greater payments under an extortionate credit bargain was disadvantaged in comparison with a debtor who had paid less and accumulated large arrears. It is hard to see any logic in this.”
“For my part, I am reluctant to attribute to Parliament the intention to create in one section of the 1975 Act obligations upon BCC in respect of which two limitation periods are applicable.”
“The court is not limited just to the words of the pleading. The court may look at the substance behind the pleading”
“With regard to actions arising by virtue of statutory provisions, to which at present the twenty year period applies as being actions upon a specialty, we recommend that in future the six year period should apply …” (Emphasis added.)
“issues of limitation are bedevilled by an unarticulated tendency to treat it as an unmeritorious procedural technicality. This is, I think, unjustified. Limitation in English law is generally procedural. But it is not a technicality, nor is it necessarily unmeritorious. It has been part of English statute law for nearly four centuries. It has generated analogous non-statutory principles in equity. Some form of limitation is a feature of almost all other systems of law. And it has been accepted in principle in the jurisprudence of both the Court of Justice of the European Union and the European Court of Human Rights. Limitation reflects a fundamental and all but universal legal policy that the litigation of stale claims is potentially a significant injustice. Delay impoverishes the evidence available to determine the claim, prolongs uncertainty, impedes the definitive settlement of the parties’ mutual affairs and consumes scarce judicial resources in dealing with claims that should have been brought long ago or not at all.”
“994 Petition by company member (1) A member of a company may apply to the court by petition for an order under this Part on the ground— (a) that the company’s affairs are being or have been conducted in a manner that is unfairly prejudicial to the interests of members generally or of some part of its members (including at least himself), or (b) that an actual or proposed act or omission of the company (including an act or omission on its behalf) is or would be so prejudicial.”
“996 Powers of the court under this Part (1) If the court is satisfied that a petition under this Part is well founded, it may make such order as it thinks fit for giving relief in respect of the matters complained of. (2) Without prejudice to the generality of subsection (1), the court’s order may— (a) regulate the conduct of the company’s affairs in the future; (b) require the company— (i) to refrain from doing or continuing an act complained of, or (ii) to do an act that the petitioner has complained it has omitted to do; (c) authorise civil proceedings to be brought in the name and on behalf of the company by such person or persons and on such terms as the court may direct; (d) require the company not to make any, or any specified, alterations in its articles without the leave of the court; (e) provide for the purchase of the shares of any members of the company by other members or by the company itself and, in the case of a purchase by the company itself, the reduction of the company’s capital accordingly.”
“There is therefore, as a result of this decision, no conflict with the ‘specialty’ provision, but the drafting of the section is exceedingly confused.”
“An action upon a specialty shall not be brought after the expiration of twelve years from the date on which the cause of action accrued: Provided that this subsection shall not affect any action for which a shorter period of limitation is prescribed by any other provision of this Act.”
“There is a new cause of action created by section 4 … No such cause of action exists apart from the statute…”
“Upon the question of limitation I agree with the view which is, I believe, shared by all before whom this case has been argued. The appellant is bringing an action which but for section 4 of the Act he could not bring. The action is therefore brought on a specialty and the limitation period is twenty years.”
“Broadly the test is whether any cause of action exists apart from the statute: per Lord Atkin [in Pratt] at p 446. “It seems to me to be quite clear that in the instant case any cause of action which the applicant has derived from the statute and from the statute alone. Apart from the statutory provisions he could have no claim …”
“The obvious and most common case of an action upon a specialty is an action based on a contract under seal, but it is clear that ‘specialty’ was not originally confined to such contracts but extended also to obligations imposed by statute. Under the Statute of Limitations of 1623 (21 Jac 1, c 16) no limit was prescribed for actions on a specialty and it was not until the Civil Procedure Act of 1833 (3 & 4 Will 4, c 42) that a time limit of 20 years was introduced for actions of debt ‘upon any bond or other specialty’: section 3. There was no statutory definition of a specialty but it was established in Cork and Bandon Railway Co v Goode (1853) 13 CB 826 that (to adopt the words of Lord Hanworth MR in Aylott v West Ham Corporation[1927] 1 Ch 30 , 50): ‘where a plaintiff relies and has to rely upon the terms of a statute so that his claim is under the statute the nature of the claim is one of specialty and the 20 years applies.’”
“… I do not for my part see that it follows that the ancient and accepted meaning of ‘specialty’ as including causes of action based on statute was in any way altered … [I]t would, in my judgment, be wrong to deduce … that the word ‘specialty’ where it is used in the Limitation Acts is, as a matter of construction, confined to specialty debts much less to obligations arising specifically under contracts under seal and in no other way.”
“I have no doubt at all that the applicant’s claim is a claim on a specialty.”
“There is room for a distinction between actions upon a statute and actions to recover a sum of money due under an enactment. Statutes may create a variety of rights, and not all of them will be rights to recover a sum of money. It is only those provisions which do confer such a right that are affected by section 9 of the 1980 Act. Other rights under statute, it is submitted, fall under section 8 as being actions upon a specialty and the appropriate period of limitation is 12 years.”
“even if the contribution, liability for which the court can declare under section 214, could be other than in a sum of money, nevertheless the claim made by the liquidators against [the directors] comes within section 9(1). The decision in the West Riding case supports the view that when the statutory provision relied on for the recovery of a sum enables the court to make an order either to give monetary relief or relief in some other non-monetary form, one should look to what was actually being claimed in the proceedings. An argument that the section would not be satisfied if the relief given need not sound in money was not accepted, Lord Goddard CJ looking to what had actually been sought. In the present case, although the summons by which the section 214 claim was made did not specify a sum for the claimed contribution, it is clear from the liquidators’ affidavit in support of the summons that they were seeking to recover a sum of money. Accordingly section 9(1) is satisfied …”
“[Counsel for Zedra] argued that to apply a six-year limitation period to some claims under section 994 but not to others would create arbitrary distinctions as between different claims under the same statutory provision. [He also] argued, where a petition claimed a number of different remedies, some pecuniary and others not, it would be unworkable to allow some claims to go forward and for others not to … [Those] objections do have more force [than others Lewison LJ had rejected]. But in Hill v Spread Trustee all three members of the court were sanguine about that prospect (although for different reasons). In Rahman Mummery LJ was explicit that different heads of relief claimed under the same statutory provision attracted different limitation periods … The critical distinction was between claims under an enactment for non-monetary relief and those claims under an enactment for monetary relief. In The UB Tiger[2007] 1 WLR 2288 the court specifically contemplated that a limitation period might apply (either directly or by analogy) to one head of relief claimed, but not to another. Likewise, in a case of professional malpractice the same facts may give rise to concurrent claims in contract and tort; each with its own limitation period … In such cases it is for the claimant to choose how to frame his case.”
“if and to the extent that a limitation period is applicable to the claim, it is difficult to see why mere delay should defeat the claim until the limitation period has expired … Equally, however, I can see no reason in principle why, in a case where a limitation period does apply, unjustified delay coupled with an adverse effect of some kind on the defendant or a third party should not be capable of providing a defence in the form of laches even before the expiration of the limitation period.”
“What is, perhaps, more troubling [than imposing a 12-year limitation period for non-monetary relief such as a buy-out order] is if a 12-year limitation period applies to claims for non-monetary relief, whether the court can dismiss a claim brought within the limitation period on the ground of delay. If and to the extent that a limitation period applies to a claim, the claimant has, at least in principle, the full statutory period within which to bring his claim. It would thus normally be inappropriate to strike out the claim merely because of delay. It may be that on particular facts it could be seen that the claimant had acquiesced in the state of affairs of which he complains, with the consequence that the court’s discretion would not be exercised in his favour even if he were to prove all his allegations. In such a case it would, I think, be possible for the court to give summary judgment in the defendant’s favour. Although this question was mentioned in oral argument, it was not the subject of any developed submissions. I therefore prefer to leave that question to a case in which it matters.”
“The issue that has given me significant pause for thought is the one identified by Lewison LJ in para 126 above, namely that it is generally thought to be impossible for a court to strike out or summarily dismiss a claim on the basis of inordinate delay if it is brought within an applicable statutory limitation period: see Birkett v James[1978] AC 297 , 320. It is notorious that many petitions under section 994 can, if unchecked, lead to disproportionately lengthy and expensive trials. Such petitions require robust case management if they are to comply with the overriding objective. Accordingly, the policy of the courts since the relatively early days of the unfair prejudice jurisdiction has been to discourage litigants from dredging up old grievances and to encourage them to focus on a limited number of specific, current complaints … I would not wish this decision to be seen as reversing that trend or providing any encouragement to petitioners to advance stale complaints under section 994. Judges should not be discouraged, in appropriate cases, from striking out or summarily dismissing allegations of historical misconduct if it can clearly be seen, at an interim stage, that even though the petition was presented within the applicable limitation period, no reasonable judge could consider that such matters would justify the exercise of discretion to grant the relief sought at trial. However, as Lewison LJ has indicated, the precise implications of our decision in this respect will need to be worked out in a future case in which it matters.”