I was recently instructed by solicitors to assist an individual who was being pursued by a mortgage company. He denied that there was any outstanding debt on the mortgage after the property was sold, and, being savvy as he was, noted that the proceedings were issued after the 12-year limitation period. He set this out in his defence, and he was met with an application for either a strike-out or summary judgment for the Claimant.
The end result was that the Claimant discontinued and agreed to pay my client’s costs. However, there was an unnecessarily drawn-out dispute because the Claimant believed that they had a defence to the limitation defence.
Claimant’s application
When I was supplied with the Claimant’s application I could see that the Claimant (amongst other things) suggested that my client had acknowledged the debt and relied on a field agent’s report where there was an alleged conversation in August 2019.
What they were relying on was section 29 of the Limitation Act 1980, which creates a fresh accrual of the limitation period if the debtor acknowledges the debt. For a mortgage (as per s20), this was 12 years. If this was correct, the limitaiton defence would be defeated.
The report was actually from 2023, not 2019, and it confirmed that the agent could not contact my client. Further, I noted that even if the agent did make contact with my client, it was insufficient as an acknowledgement of the debt as per s30 Limitaiton Act 1980:-
s30 Formal provisions as to acknowledgments and part payments.
(1)To be effective for the purposes of section 29 of this Act, an acknowledgment must be in writing and signed by the person making it.
(2)For the purposes of section 29, any acknowledgment or payment—
(a)may be made by the agent of the person by whom it is required to be made under that section; and
(b)shall be made to the person, or to an agent of the person, whose title or claim is being acknowledged or, as the case may be, in respect of whose claim the payment is being made.
I prepared a very brief skeleton argument, and on the afternoon before the hearing, my client received an additional application statement. This statement included a redacted telephone attendance note, supposedly from 2019, indicating that my client acknowledged the debt but was unable to start repayments. It also suggested payments were being made up to a certain date.
First hearing
The Judge considered the Claimant’s supplementary witness statement and provided an initial indication that, even if the payments were made by the Defendant (which was both denied and unclear from the documentation whether these payments originated from him), the limitation period from the last payment had expired before proceedings were issued.
My opponent was asked whether the telephone attendance note was intended to be relied on as a written acknowledgment of the debt. My opponent confirmed the same.
The Judge then turned to me. He had not received my skeleton argument. Nevertheless, I set out the basis for my argument that, while an agent with some general authority could acknowledge the debt on behalf of a debt, it must be in writing and signed.
I pointed out that the agent cannot be a stranger to my client, and we do not even know who the author of the telephone attendance note was. It wasn’t signed and therefore did not meet the requirements of s30. I submitted that there was no defence to the limitation defence and that the Court ought to exercise its power to dispose of the matter and find summary Judgment for the Claimant.
The Judge initially questioned my point, but I explained that Clerk & Lindsell would say that the issue of limitation could be dealt with in a preliminary hearing. I said there was no good reason not to dispose of it today.
The Judge was reluctant to dispense with the claim at that hearing and ordered a preliminary hearing on liability, with the Claimant’s application to be adjourned in case the limitation defence failed. He also ordered skeleton arguments to be filed and served within 14 days and reserved costs. He made it clear that he was dubious whether the Court could be convinced that this amounted to a written acknowledgment. I would say this was more than a judicial eyebrow raise.
My client and I could not see how the Claimant would be able to succeed and my client decided to make a without prejudice Calderbank for the Claimant to discontinue and for the parties to bear costs. This was to expire shortly before the skeleton argument deadline.
Skeleton Arguments
With no response to my client calderbank offer, I draftered a more comprehensive skeleton argument. I set out how:-
- The various types of written acknowledgement that would be acceptable
- What amounts to an acknowledgement
- Who can make the acknowledgement
- What is sufficient to amount to a signature
I set out the basis of my submission, that this telephone attendance coudl never be an acknowledgement in accordance with s30.
The document was a telephone note from the Claimant. The alleged acknowledgement was reportedly made during a phone call between the Claimant and my client, which was oral rather than written. The author of the telephone note cannot be considered my client’s agent, as they were a stranger to him. Only someone who is purported to be my client’s agent and has general authority to acknowledge the debt could provide a written acknowledgement. Such an acknowledgement would need to be in writing and signed. Since the telephone note is unsigned and the author cannot be identified, it cannot be sufficient.
Even more surprising was that the Claimant sought an extension on filing and serving its skeleton argument. My client offered 7 days. Those seven days passed with no skeleton argument.
Preliminary hearing and compromise
The day before the hearing, our cost schedules had been served, and then, out of nowhere, the Claimant began to negotiate the discontinuance of their claim. My client stood firm and sought for more of his legal fees to be paid. The agreement took place after 5 pm so both parties agreed that the advocates would attend to file the consent Order (given that I was already there).
It would seem that the new Judge (a family practitioner DDJ) was asking the ushers to speak to my opponent for her skeleton argument. Once it became apparent that we had settled, the Judge brought us in. She indicated that she had already read my skeleton argument (which she said was very helpful) and then apologised for chasing my opponent for a skeleton argument as she was not aware of the compromise.
Comments
This was clearly a case where someone had made an error and not taken steps to issue proceedings in time. At that point, upon realising that there was nothing that would amount to a s29 acknowledgement, the matter should have been left there.
However, the Claimant fee earner issues proceedings on behalf of their client and receives the limitation defence. The fee earner should have been alive to the fact that there was a limitation defence and upon reason s29 and s30, should have been aware that no defence to the limitation defence exists. Instead, the applied for a strike out/summary judgment.
The Claimant’s counsel returns from the hearing and reports the judicial eyebrow raise. The Claimant fee earner receives my client’s calderbank. Why is it that at no point the Claimant has seriously considered that they had no defence to the limitation defence?
It made me wonder. My client was very savvy. How many Defendants had claims brought against them out of time, unaware of the limitation defence and without raising it in their defence, the claim proceeded? Is this why the fee earner (potentially part of a dedicated team dealing with mortgage claims) was completely unaware of what it means for an acknowledgement of the debt within the meaning of s29 of the 1980 Act? Was it simply the case that once the mistake was made, someone somewhere buried their head in the sand and hoped for the best?
Whilst my client was very much confident in his defence, there was a lot of unnecessary stress which has finally been lifted. It should have been lifted sooner. It should never have existed in the first place.
Information
AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026.
From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.