The Discoverability of Mistakes of Law

Lloyd’s Maritime & Commercial Law Quarterly, pp. 112-137, 2019

26 Pages Posted: 28 Feb 2019 Last revised: 2 Jan 2021

See all articles by Samuel Beswick

Samuel Beswick

Peter A. Allard School of Law, University of British Columbia; Harvard Law School

Multiple version iconThere are 2 versions of this paper

Date Written: February 1, 2019

Abstract

The “mistake of law” category of unjust enrichment might be a more obscure cause of action were it not for s.32(1)(c) of the Limitation Act 1980. That provision postpones the limitation period in cases of “mistake.” Recent landmark judgments have interpreted s.32(1)(c) to extend time for bringing actions in mistake of law until there has been an authoritative judicial pronouncement on the point of law in issue. This understanding of discoverability is arbitrary, jurisprudentially strained, and internally inconsistent. It gives rise to serious problems in doctrine and policy. The courts should revisit their jurisprudence and consider the more coherent understandings of the discoverability principle that others have previously advanced.

Keywords: private law, restitution, mistake of law, Limitation Act, limitation postponement, reasonable diligence, abuse of process, settled view of law, Franked Investment Income Group Litigation, Prudential Assurance, Ipswich Town Football Club v Suffolk Constabulary, AB v Ministry of Defence

Suggested Citation

Beswick, Samuel, The Discoverability of Mistakes of Law (February 1, 2019). Lloyd’s Maritime & Commercial Law Quarterly, pp. 112-137, 2019, Available at SSRN: https://ssrn.com/abstract=3317065

Samuel Beswick (Contact Author)

Peter A. Allard School of Law, University of British Columbia ( email )

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Harvard Law School ( email )

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