Discoverability Principles and the Law's Mistakes
Law Quarterly Review, vol. 136(1), pp. 139-164, 2020
26 Pages Posted: 26 Mar 2019 Last revised: 24 Jun 2020
Date Written: March 16, 2019
This article makes three novel contributions to English private law jurisprudence. First, it identifies unifying principles within the limitation doctrine of discoverability that can aid the interpretation of several key provisions in the Limitation Act 1980. Secondly, it uses these principles to show how contradictions in the English courts’ approach to the discoverability of mistakes of law should be corrected. The article aims to reconcile lawyers’ understanding of discoverability across errors of fact and law. Thirdly, the article offers a new understanding of the maligned notion of a settled-view-of-the-law, which has so far failed to receive consensus among restitution jurists.
The implications of the article’s thesis suggest that the landmark judgments in Kleinwort Benson Ltd v Lincoln CC, Deutsche Morgan Grenfell v IRC and FII Test Claimants v HMRC misapplied the discoverability provision in s.32(1)(c) of the Limitation Act 1980, erroneously exposing (in the overpaid tax cases) billions of pounds of past-collected revenue to litigation. The time is overdue for the English courts to correct their discoverability jurisprudence.
Note: This material was first published by Thomson Reuters, trading as Sweet & Maxwell, 5 Canada Square, Canary Wharf, London, E14 5AQ, in the Law Quarterly Review as ‘Discoverability Principles and the Law’s Mistakes,’ (2020) 136 Law Quarterly Review 139, and is reproduced by agreement with the publishers.
Keywords: private law, unjust enrichment, 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
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