Limitation Period and Midnight Deadline

When the deadline is midnight, is there a complete  undivided day following the expiry of the deadline which should be included when calculating the limitation period?

That is the question the Supreme Court decided in a judgment delivered today: Matthew and others (Appellants) v Sedman and others (Respondents) [2021] UKSC 19: Lord Hodge, Deputy President, Lady Arden, Lord Sales, Lord Burrows, Lord Stephens

Giving the unanimous decision of the Court (upholding the Court of Appeal and First Instance Judge) and dismissing the appeal, Lord Stephens observed that it was not surprising that there were conflicting views as to the date upon which the cause of action accrued in a midnight deadline case.

There were potentially different answers to that question.  In Gelmini[1] the issue was decided in different terms both at first instance and in the Court of Appeal.  Lord Stephens preferred the approach of Underhill LJ that “the cause of action arises at, not after, midnight.”

It was not necessary to endorse any of the competing answers to that issue because, as in Gelmini, whether the cause of action accrued at the expiry of 2 June 2011 or at the very start of 3 July 2011, there was no significant difference, in that 3 June 2011 was for practical purposes a complete undivided day.

The reason for the general rule which directed that the day of accrual of the cause of action should be excluded from the reckoning of time was that the law rejected a fraction of a day.

The justification for the rule was straightforward: it was intended to prevent part of a day being counted as a whole day for the purposes of limitation, thereby prejudicing the claimant and interfering with the time periods stipulated in the Limitation Act 1980.

In the present case it was correctly submitted that in a midnight deadline case even if the cause of action accrued at the very start of the day following midnight, that day was a complete undivided day.

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, it would not only be impermissible metaphysics but also, in context, such a minimum period of time did not cross the threshold as capable of being recognised by the law.

Whether the issue was framed in terms of metaphysics, which the common law eschewed, or of principle that the law did not concern itself with trifling matters, the conclusion was the same: realistically, there was no fraction of a day.

That being so, the justification in relation to fractions of a day did not apply in a midnight deadline case.

There was no long-standing authority which excluded a whole indivisible day.  If, in a midnight deadline case, a full undivided day was to be excluded from the reckoning of time, then the limitation period would be six years and one complete day.

That would unduly distort the six-year limitation period laid down by Parliament and would prejudice the defendant by lengthening the statutory limitation period by a complete day.

In the current case because Friday 3 June 2011 was a whole day, it should be included in the calculation of the limitation period.  The Claimant, who brought proceedings on Monday 7 June 2017, therefore did so outside of the six-year period and the claim was statute-barred.

[1] Gelmini v Moriggia [1913] 2 KB 549