Limitation Period & Delay by Lenders - Court Of Appealgreenspun.com : LUSENET : Repossession : One Thread
The following extract is from a Court of Appeal case of the 19th April 2000 which may indicate the effect the new Civil Procedure Rules will have on the Lender's habit of delaying commencing proceedings until it suits them to do so:
The full case report (JOANNE ELIZABETH CLARK -and- THE UNIVERSITY OF LINCOLNSHIRE AND HUMBERSIDE)is available at:
" ...... 33. The courts today will be flexible in their approach. Already, prior to the introduction of the CPR the courts were prepared to prevent abuse of their process where there had been an inordinate delay even if the limitation period had not expired. In such a situation, the court could, in appropriate circumstances, stay subsequent proceedings. This is despite the fact that a litigant normally was regarded as having a legal right to commence proceedings at any time prior to the expiry of the limitation period. (See Birkett v James  AC 297)
34. The courts approach to what is an abuse of process has to be considered today in the light of the changes brought about by the CPR. Those changes include a requirement that a party to proceedings should behave reasonably both before and after they have commenced proceedings. Parties are now under an obligation to help the court further the over-riding objectives which include ensuring that cases are dealt with expeditiously and fairly. (CPR 1.1(2)(d) and 1.3) They should not allow the choice of procedure to achieve procedural advantages. The CPR are as Part 1.1(1) states a new procedural code. Parliament recognised that the CPR would fundamentally change the approach to the manner in which litigation would be required to be conducted. That is why the Civil Procedure Act 1997 (Section 4(1) and (2)) gives the Lord Chancellor a very wide power to amend, repeal or revoke any enactment to the extent he considers necessary or desirable in consequence of the CPR.
35. While in the past, it would not be appropriate to look at delay of a party commencing proceedings other than by judicial review within the limitation period in deciding whether the proceedings are abusive this is no longer the position. While to commence proceedings within a limitation period is not in itself an abuse, delay in commencing proceedings is a factor which can be taken into account in deciding whether the proceeding are abusive. If proceedings of a type which would normally be brought by judicial review are instead brought by bringing an ordinary claim, the court in deciding whether the commencement of the proceedings is an abuse of process can take into account whether there has been unjustified delay in initiating the proceedings. ....."
-- Tony Hayter (Tony@Hayter.com), December 19, 2000
This is a very important piece of case law. I would imagine that many repossessees might be able to cite it in their defence should they ever receive a summons. Nice one, Tony.
By the way, there is also a piece of Human Rights Act law which states that civil hearings (which would include proceedings) must be fair and brought within a reasonable time.
If your lender seems to have waited a long time to contact you, for no good reason, then be aware of this ruling and these rights.
-- Eleanor Scott (firstname.lastname@example.org), December 28, 2000.