The trustees had until midnight on 2 June 2011 to lodge a claim. They missed the deadline. In the resulting action against them, a single day mattered: did 3 June count as the first of the six years available to sue, even though courts normally exclude the day a cause of action arises?
The appellants are the current trustees and beneficiaries of a trust created by the will of Evelyn Hammond. The respondents, professional trustees, had retired in 2014. The trust owned shares in Cattles plc. After misleading information came to light, Cattles and its subsidiary Welcome Financial Services Ltd promoted court-approved schemes of arrangement. Under the Welcome Scheme, a claim had to be submitted on or before the Bar Date of Thursday 2 June 2011, so a valid claim could be made up to midnight at the end of that day. The respondents made no such claim. The appellants sued for negligence and breach of trust (and submitted that the claim also lay in contract), seeking damages or equitable compensation. This part of the action was called the Welcome Claim. A related Cattles Claim was accepted to be in time.
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The claim form was issued on Monday 5 June 2017. The respondents sought summary judgment on the Welcome Claim, contending that it was statute-barred under sections 2, 5 and 21(3) of the Limitation Act 1980. Those provisions require the relevant action to be brought within six years from the date on which the cause of action or right of action accrued.
Whether 3 June 2011 counted
The issue was whether Friday 3 June 2011, the day beginning at or immediately after midnight, formed part of the six years. If it did, time expired at the end of Friday 2 June 2017 and the claim was late. If it did not, time expired at the end of Saturday 3 June 2017. It was common ground, following Pritam Kaur v S Russell & Sons Ltd, that because the court office is closed at the weekend the claim could then have been issued on Monday 5 June 2017 and would have been in time.
Judge Hodge QC held that the cause of action accrued at the first moment of 3 June 2011, that this day was included, and that the claim was out of time. He granted summary judgment. The Court of Appeal dismissed the appeal. Irwin and Underhill LJJ treated a midnight deadline as a distinct category and held that 3 June 2011 counted, although they differed from the judge, and slightly from each other, on whether the cause of action accrued at midnight or at the first moment of the following day.
Why a midnight deadline is different
Lord Stephens, with whom Lord Hodge, Lady Arden, Lord Sales and Lord Burrows agreed, explained the ordinary rule. Where a cause of action accrues part-way through a day, that day is excluded. The law rejects a fraction of a day so that part of a day is not counted as a whole day and the claimant is not deprived of the full statutory period. The authorities relied on by the appellants, including Mercer v Ogilvy, Lester v Garland, The Goldsmiths’ Co v The West Metropolitan Railway Co and Stewart v Chapman, concerned fractions of a day. They did not decide a midnight-deadline case.
In a midnight-deadline case the position is different. Even if the cause of action is taken to accrue at the very start of the next day, that day is in practical terms a complete, undivided day. The claimant can sue throughout it. Lord Stephens preferred the view that the cause of action arises at, not after, midnight, but said it was unnecessary to choose between the competing descriptions. Either way, there was no legally significant fraction of a day. Excluding the day would turn a six-year period into six years and one full day, lengthening the period laid down by Parliament and prejudicing the defendant. The same point appears if the period is imagined as one day: exclusion would allow two complete days.
Gelmini v Moriggia, concerning a promissory note payable by midnight, was treated as a valid exception for this situation: the day on which proceedings could first be brought throughout is included. Later decisions that declined to follow Gelmini involved causes of action arising part-way through a day and were distinguishable. They did not disapprove the midnight-deadline principle.
3 June 2011 was therefore included. The six years expired at the end of 2 June 2017.
Verdict: The Supreme Court unanimously dismissed the appeal. The whole of 3 June 2011 counted, so the six years expired on Friday 2 June 2017. The Welcome Claim issued the following Monday was out of time. The separate Cattles Claim was unaffected.
Source: Matthew and others v Sedman and others [2021] UKSC 19
