Lord Brightman:

This appeal from the Federal Court of Malaysia raises the question whether claimants, whose cause of action became statute barred in 1973 by virtue of the Public Authorities Protection Ordinance 1948 ("the 1948 Ordinance"), can nevertheless issue a writ in 1975 in reliance upon the Public Authorities Protection (Amendment) Act 1974 ("the 1974 Act") which substituted a limitation period of 36 months for the previous period of 12 months.

On 5 April 1972 a motor bus belonging to the respondents was being driven along a road in the State of Selangor. It collided with a motor cycle driven by the first plaintiff with the second plaintiff as pillion passenger. Both were injured.

The respondents are a statutory body and the accident occurred during the course of the respondents' public duties. Consequently the plaintiffs' cause of action was liable to become statute barred on 5 April 1973 pursuant to the 1948 Ordinance, s. 2 of which reads as follows:

2. Where, after the coming into force of this Ordinance, any suit, action, prosecution or other proceeding is commenced in the Federation against any person for any act done in pursuance or execution or intended execution of any written law or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such written law, duty or authority the following provisions shall effect:

(a) the suit, action, prosecution or proceeding shall not lie or be instituted unless it is commenced within twelve months next after the act, neglect of default complained of or, in the case of a continuance of injury of damage, within twelve months next after the ceasing thereof ...

Unfortunately those advising the plaintiffs did not appreciate that the respondents were a public authority. As a result time slipped by without the institution of proceedings before the 12 month limitation expired on 5 April 1973.

On 5 June 1974 the 1974 Act was passed. It came into force on 13 June. It was expressed to amend the 1948 Ordinance by deleting the words "12 months" wherever appearing in para. (a) of s. 2 and substituting the words "36 months". Immediately before the 1974 Act came into force the plaintiffs' cause of action had been statute barred for 14 months. A further 9 months went by and on 20 March 1975 the plaintiffs issued a writ claiming damages for personal injuries caused by the negligence of the respondent's servant. Three weeks later the 36 month period of limitation, if applicable, expired. The respondents filed a defence in which they pleaded that the appellants were barred from bringing the action by virtue of the 1948 Ordinance. By the time the action came to trial, this had become the only point in the case. Liability was admitted subject to contributory negligence on the part of the first plaintiff, and substantial damages were also agreed. The sole question remained whether the plaintiffs' cause of action was finally statute barred in April 1973 or whether it was revived in June 1974.

There are two other statutory provisions which are relevant. Section 13 of the interpretation and General Clauses Ordinance 1948 provided that:

Where a written law repeals in whole or in part any other written law, then, unless the contrary intention appears, the repeal shall not ...

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any written law so repealed.

This Act was replaced by the Interpretation Act 1967, s. 30(1)(b) of which says the same thing in different words.

Their Lordships turn to consider the propositions that a Limitation Act which is not expressed to extinguish a cause of action is procedural and that a statute which is merely procedural is prima facie retrospective. These two propositions lie at the root of the appellants case.

A statute of limitations may be described either as procedural or as substantive. For example, in English law, at the expiration of the period prescribed for any person