The Judicial Committee of the Privy Council Decisions

Privy Council Appeal No. 63 of 1997

 

Zainuddin Dato Seri Paduka Haji Marsal Appellant

v.

(1) Pengiran Putera Negara Pengiran Haji Umar Bin

Pengiran Datu Penghulu Pengiran Haji Apong and

(2) Dato Paduka Haji Awang Alias Bin Sheikh Ahmad Respondents

 

FROM

 

THE COURT OF APPEAL OF BRUNEI DARUSSALAM

 

---------------

JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 18th February 1998

------------------

 

Present at the hearing:-

Lord Goff of Chieveley

Lord Slynn of Hadley

Lord Lloyd of Berwick

Lord Nicholls of Birkenhead

Mr. Justice Gault

  ·[Delivered by Lord Slynn of Hadley]

 

-------------------------

 

1. By writ issued in the High Court of Brunei Darussalam on 5th May 1994 the appellant, a business man, claimed against the respondents, the Commissioner and Assistant Commissioner of the Royal Brunei Police Force that, following a dispute with a police officer at the Brunei International Airport, he had been wrongfully imprisoned from 20th August 1986 to 11th April 1989 and that from 11th April 1989 to 11th April 1990 he had been wrongfully imprisoned between the hours of 10.00 p.m. and 6.00 a.m.  He further alleged against the respondents a conspiracy, negligence and misrepresentation together with a failure to investigate the alleged crime against him which had led to his imprisonment between those dates.  It is not necessary to set out the serious allegations he makes of ill-treatment during these periods in respect of which he claims not only general but also substantial special and exemplary damages. On 30th September 1995 the Senior Registrar of the High Court refused his application to make extensive amendments to his writ and statement of claim and to join six further defendants.  The plaintiff's action was struck out as being barred under the Limitation Act and accordingly frivolous, vexatious and an abuse of the process of the Court.  On 20th April 1996 Mr. Commissioner Penlington dismissed the appellant's appeal against that decision, though to some extent on different grounds, and the Commissioner's order was upheld by the Court of Appeal on 14th April 1997.

 

2. Although the appellant considers that there are many issues which he would like to raise before the Board he accepts in the end that the only issue to be decided by their Lordships is whether the Court of Appeal was right to hold that the respondents had an impregnable limitation defence under the Limitation Act (Cap. 14) of Brunei ("the 1967 Act").

 

3. The issue arises in this way.

 

4. By section 3 of the 1967 Act:-

"Subject to sections 4 to 24 inclusive, every suit instituted after the period of limitation prescribed therefor by the Schedule, if limitation has been set up as a defence, shall be dismissed."

 

5. In the Schedule in respect of claims "For compensation for false imprisonment" the period of limitation was fixed at one year from the time when the imprisonment ends (item 8).  "For compensation for any malfeasance, misfeasance or non-feasance, independent of contract and not herein specially provided for" the period of limitation was fixed at two years from the time when the malfeasance etc. took place (item 19) and "For compensation for injury to the person" three years from the time when the injury was committed (item 92).

 

6. On the basis of those provisions, since his imprisonment came to an end on 11th April 1990 and all the incidents which he relies on as grounds in his other causes of action took place before that date, the claims were statute-barred by 5th May 1994 when he issued his writ.

 

7. New limitation provisions were, however, adopted in the Emergency (Limitation) Order, 1991 ("the 1991 Order") which came into force on 1st September 1991 and repealed the 1967 Act.  By section 2 of the 1991 Order:-

"  (1) This Order shall apply to any action commenced after the date of coming into force of this Order, whether the cause of action accrued before or after that date.

 

  (2) Any action commenced before the date of coming into force of this Order, shall continue in accordance with, and be bound by, the provisions of the Act repealed by section 52 of this Order."

 

8. The time limits prescribed were as follows:-

 

9. By section 6(1) an action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued save that by section 20 claims for negligence, other than those to which section 15 applies, shall not be brought after fifteen years from the act or omission relied on.  Section 15 provided that for actions for damages for negligence, nuisance or breach of duty where the damages consisted of or included damages for personal injury the limitation period should be three years from the date on which the cause of action accrued or the date of knowledge (if later) of the person injured.  The periods were extended where a person was under a disability or where there had been fraud or deliberate concealment or mistake.  The Order provided that nothing therein should operate as a bar to an action unless the Order had been expressly pleaded as a defence thereto.

 

10. This Order must be read with the Interpretation and General Clauses Act (Cap. 4) of Brunei ("the Interpretation Act") which provides in section 2:-

"  (1) Save where the contrary intention appears, the provisions of this Act shall apply to this Act and to any written law now or hereafter in force ..."

 

11. And by section 10:-

"The repeal of any written law shall not -

...

 

(c)affect any right, power, obligation, restriction or liability acquired, accrued, imposed or incurred under any written law so repealed."

 

12. The appellant's case is that he can rely on these new periods  of  limitation  since his action was commenced after the date of coming into force of the Order (section 2(1)) and the new periods apply "whether the cause of action accrued before or after that date".  Adopting a purposive approach to statutory construction he says that it was plain that a considerable increase in the length of the limitation period was intended across the board.  By extending the limitation period for false imprisonment from one year to six years the defendant became liable in respect of a period for which he would previously have been able to plead a time bar.  The appellant relies in particular on a speech of Lord Mustill in L'Office Cherifien v. Yamashita Ltd [1994] 1 A.C. 486, 524, 525, with which the other members of the House agreed, in which Lord Mustill said that the basis of the presumption that Parliament did not intend legislation to have retrospective effect is simple fairness.  On a review of all the factors in that case and adopting a purposive approach to interpretation it was held that Parliament did intend section 13A(2) of the Arbitration Act 1950, as inserted by section 102 of the Courts and Legal Services Act 1990, to have a partially retrospective effect.

 

13. The appellant submits that in the present case fairness requires, and a purposive approach to interpretation produces the result, that he, like someone bringing an action after the 1991 Order came into force in respect of a cause of action arising before that date, should be able to rely on the new limitation provisions.  The purpose of the 1991 Order was to introduce new limitation periods which did not distinguish between pre-existing and new causes of action.

The appellant also relies on the speech of Lord Bridge of Harwich in Arnold v. Central Electricity Generating Board [1988] A.C. 228 with which the other members of the Appellate Committee agreed.  In that case Lord Bridge accepted that the Limitation Act 1963 of England, by the combined effects of sections 1, 6 and 15:-

"... operated retrospectively, when the appropriate conditions were satisfied, to deprive a defendant of an accrued time bar in respect of a claim for damages for personal injuries in which the cause of action had accrued since 4 June 1954 and which had, therefore, been subject to the three year period of limitation introduced by the Act of 1954. (page 268D)"

It is, however, clear that Lord Bridge was looking at the wording of specific sections and that everything must depend on the wording of the sections which are in issue.  Thus Lord Bridge accepted at page 275:-

 

"Consistently with the presumption that a statute affecting substantive rights is not to be construed as having retrospective operation unless it clearly appears to have been so intended, it seems to me entirely proper, in a case where some retrospective operation was clearly intended, equally to presume that the retrospective operation of the statute extends no further than is necessary to give effect either to its clear language or to its manifest purpose.  Construing sections 2A to 2D of the Act of 1939 in the light of section 3 of the Act of 1975, I think that full effect is given both to the language and to the purposes of the legislation if it is held retrospectively applicable to all personal injury actions previously governed by the three year limitation period under the Act of 1954, whether as then enacted or as amended by the Act of 1963.  Conversely, I can find nothing in the language or discernible purposes of the statute which leads clearly, let alone avoidably, to the conclusion that defendants previously entitled to rely on the accrued six year and one year time bars under the original Act of 1939 which the Act of 1963 left intact were intended to be deprived of those accrued rights by the Act of 1975."

 

14. In the present case it is clear that the 1991 Order was intended to have and did have effect in certain respects on existing causes of action.  Thus there can be no doubt that on the day the 1991 Order came into force causes of action arising within the limitation period prescribed by the 1967 Act benefited from the new and longer periods of limitation.  The earlier limitation in force when the cause of action arose was removed.  There is no doubt either, though it is not in issue in this case, that the purpose and effect of section 15 of the 1991 Order was to allow a plaintiff to sue for personal injury during a period of three years from the date of knowledge of the plaintiff if that was later than three years from the date on which the cause of action accrued and the latter three year period was still running at the date when the 1991 Order came into force.  The appellant is clearly right in saying that this Act was intended to benefit the plaintiff.

 

15. "Fairness" however involves also a consideration of the position of the defendant and as Lord Griffiths said in Donovan v. Gwentoys Ltd [1990] 1 W.L.R. 472 at page 479A:- "The primary purpose of the limitation period is to protect a defendant from the injustice of having to face a stale claim, that is, a claim with which he never expected to have to deal."

 

16. On that basis the respondents contend that, where periods of limitation provided by the 1967 Act had expired before the 1991 Order came into effect, the defendants were entitled to assume that no claims then time-barred could be brought.

 

17. Their Lordships consider that the approach to the interpretation of the 1991 Order should be that approved by their Lordships' Board in the opinion prepared by Lord Brightman in Yew Bon Tew v. Kenderaan Bas Mara [1983] 1 AC 553, and approved by the House of Lords in Arnold (supra), where at page 558F it was said:-

"Apart from the provisions of the interpretation statutes, there is at common law a prima facie rule of construction that a statute should not be interpreted retrospectively so as to impair an existing right or obligation unless that result is unavoidable on the language used.  A statute is retrospective if it takes away or impairs a vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability, in regard to events already past.  There is, however, said to be an exception in the case of a statute which is purely procedural, because no person has a vested right in any particular course of procedure, but only a right to prosecute or defend a suit according to the rules for the conduct of an action for the time being prescribed.

 

18. But these expressions `retrospective' and `procedural', though useful in a particular context, are equivocal and therefore can be misleading. ...; and an Act which is procedural in one sense may in particular circumstances do far more than regulate the course of proceedings, because it may, on one interpretation, revive or destroy the cause of action itself.

..."

 

and at page 563A:-

"Their Lordships consider that the proper approach to the construction of the Act of 1974 is not to decide what  label  to  apply to it, procedural or otherwise, but to see whether the statute, if applied retrospectively to a particular type of case, would impair existing rights and obligations.  ...

 

19. In their Lordships' view, an accrued right to plead a time bar, which is acquired after the lapse of the statutory period, is in every sense a right, even though it arises under an act which is procedural.  It is a right which is not to be taken away by conferring on the statute a retrospective operation, unless such a construction is unavoidable.  Their Lordships see no compelling reason for concluding that the respondents acquired no `right' when the period prescribed by the Ordinance of 1948 expired, merely because the Ordinance of 1948 and the Act of 1974 are procedural in character ...  The purpose was not to deprive a potential defendant of a limitation defence which he already possessed."

 

20. Turning to the 1991 Order, section 2(1), it can be said, is in general terms.  It applies to "any action commenced after" 1st September 1991, "whether the cause of action accrued before or after that date".  That section must however be read with the provisions of section 2(1) and 10(c) of the Interpretation Act to the effect that the repeal of the 1967 Act shall not affect any right accrued under any written law so repealed unless the contrary intention appears.

 

21. Their Lordships do not find anything to indicate that section 10 should not apply to the 1967 Act and its repeal by the 1991 Order.  The fact that it is said that some of the provisions are transitional, as the appellant contends, does not mean there is no room for the application of section 10 of the Interpretation Act.  It still applies to section 2 of the 1991 Order.  Acquired rights to rely on a limitation defence are consequently not affected.  Moreover it is quite impossible to say that it is "unavoidable" to construe the 1991 Order as removing rights acquired under the Limitation Act itself.  On the contrary, in the absence of an express provision in section 2(2) of the 1991 Order that existing acquired rights to a limitation defence were removed, the clear presumption must be the other way.  The fact that there is not in this Order, as there was in the English Limitation Act 1980, a provision that:-

 

 

"  (1) Nothing in the provision of this Act shall  -

...

 

(c)enable any action to be brought which was barred by this Act or, as the case may be, by the Limitation Act 1939 before the relevant date ..."

 

does not lead to the conclusion that it was intended in the present case that accrued limitation defences should be removed.  The combined effect of section 2(2) of the 1991 Order and section 10 of the Interpretation Act leads to the same result as that expressly provided in the 1980 Act.

 

22. Nor is this conclusion in any way inconsistent with the decision in Arnold (supra).  In that case the House was concerned with quite different provisions and Lord Bridge's approach was entirely consistent with what was said by Lord Brightman in Yew Bon Tew (supra).

 

23. To accept the appellant's conclusion would, as the Court of Appeal found, have produced the unacceptable result that a plaintiff who began his action before 1st September 1991 could be met by the accrued limitation defence applicable under the 1967 Act: but if he had waited until after 1st September 1991 before issuing his writ he could benefit from the 1991 Order periods of limitation and thereby deprive the defendants of an accrued right of defence.

 

24. Their Lordships do not accept the appellant's argument that because the limitation periods are extended in respect of latent injuries by section 15 of the 1991 Order it follows that all the 1967 limitation periods which have elapsed must also be extended.  Accrued rights fall to be protected.

 

25. Accordingly their Lordships will report to His Majesty the Sultan and Yang di-Pertuan of Brunei their opinion that in this case the Court of Appeal came to the correct conclusion in law and that the appeal should be dismissed with costs.

 

© CROWN COPYRIGHT as at the date of judgment.