CONSULTATION
PAPER
(LRC
CP 54 - 2009)
©
Copyright
Law Reform
Commission
FIRST
PUBLISHED
July 2009
ISSN
1393-3140
LAW
REFORM COMMISSION’S ROLE
The Law
Reform Commission is an independent statutory body established by the Law
Reform Commission Act 1975. The Commission’s principal role is to keep the law under review and to
make proposals for reform, in particular by recommending the enactment of legislation
to clarify and modernise the law. Since it was established, the Commission has
published over 140 documents containing proposals for law reform and these are
all available at www.lawreform.ie. Most of these proposals have led to
reforming legislation.
The
Commission’s role is carried out primarily under a Programme of Law Reform. Its
Third Programme of Law Reform 2008-2014 was prepared by the Commission following broad
consultation and discussion. In accordance with the 1975 Act, it was approved
by the Government in December 2007 and placed before both Houses of the
Oireachtas. The Commission also works on specific matters referred to it by the
Attorney General under the 1975 Act. Since 2006, the Commission’s role includes
two other areas of activity, Statute Law Restatement and the Legislation
Directory.
Statute Law
Restatement involves the administrative consolidation of all amendments to an
Act into a single text, making legislation more accessible. Under the Statute
Law (Restatement) Act 2002, where this text is certified by the Attorney General it can be relied on
as evidence of the law in question. The Legislation Directory - previously
called the Chronological Tables of the Statutes - is a searchable annotated
guide to legislative changes. After the Commission took over responsibility for
this important resource, it decided to change the name to Legislation Directory
to indicate its function more clearly.
Membership
The Law
Reform Commission consists of a President, one full-time Commissioner and three
part-time Commissioners.
The
Commissioners at present are:
President:
The
Hon Mrs Justice Catherine McGuinness
Former
Judge of the Supreme Court
Full-time
Commissioner:
Patricia
T. Rickard-Clarke, Solicitor
Part-time
Commissioner:
Professor
Finbarr McAuley
Part-time
Commissioner:
Marian
Shanley, Solicitor
Part-time
Commissioner:
Donal
O’Donnell, Senior Counsel
Law
Reform Research Staff
Director
of Research:
Raymond
Byrne BCL, LLM (NUI),
Barrister-at-Law
Legal
Researchers:
Chris Campbell B Corp Law, LLB Diop Sa Gh (NUI)
Frances Colclough BCL, LLM (NUI)
Siobhan Drislane BCL, LLM (NUI)
Claire Murray, BCL (NUI), Barrister-at-Law
Gemma Ní Chaoimh BCL, LLM (NUI)
Bríd Nic Suibhne BA, LLB, LLM (TCD), Diop sa Gh
(NUI)
Jane O‘Grady BCL, LLB (NUI ), LPC (College of Law)
Gerard Sadlier BCL (NUI)
Joseph Spooner, BCL (Law with French Law) (NUI),
Dip. French and
European Law (Paris II), BCL (Oxon)
Ciara Staunton BCL, LLM (NUI), Diop sa Gh (NUI)
Statute
Law Restatement
Project
Manager for Restatement:
Alma
Clissmann, BA (Mod), LLB, Dip Eur Law (Bruges), Solicitor
Legal
Researchers:
John P. Byrne BCL, LLM, PhD
(NUI), Barrister-at-Law
Elizabeth Fitzgerald LLB, M.Sc. (Criminology
& Criminal Justice), Barrister-at-Law
Catriona Moloney BCL, LLM (NUI)
Legislation
Directory
Project Manager for Legislation Directory:
Heather Mahon LLB (ling. Ger.), M.Litt., Barrister-at-Law
Legal Researchers:
Margaret Devaney LLB,
LLM (TCD)
Rachel Kemp BCL (Law and German), LLM (NUI)
Administration
Staff
Head of Administration and Development:
Brian
Glynn
Executive
Officers:
Deirdre
Bell
Simon
Fallon
Darina
Moran
Peter
Trainor
Legal
Information Manager:
Conor
Kennedy BA, H Dip LIS
Cataloguer:
Eithne
Boland BA (Hons), HDip Ed, HDip LIS
Clerical Officers:
Ann Browne
Ann
Byrne
Liam
Dargan
Sabrina
Kelly
Principal
legal researcher for this consultation paper
Joanne Williams LL.B., LL.M.,
Barrister at Law.
CONTACT
DETAILS
Further
information can be obtained from:
Head of Administration and Development
Law Reform Commission
35-39 Shelbourne Road
Ballsbridge
Dublin 4
Telephone:
+353 1 637 7600
Fax:
+353 1 637 7601
Email:
info@lawreform.ie
Website:
www.lawreform.ie
ACKNOWLEDGEMENTS
The
Commission would like to thank the following people who provided valuable
assistance:
David
Clarke, Solicitor,
McCann FitzGerald, Solicitors
Frances
Cooke, Revenue
Solicitor, Revenue Commissioners
John
Geraghty, Solicitor,
Revenue Commissioners
John
O’Sullivan, Barrister
at Law
Full
responsibility for this publication lies, however, with the Commission.
Table of
Legislation
xiii
Table of
Cases
xvii
B The
meaning of “Limitation of Actions”
C The
Statute of Limitations and other legislation on limitation periods
D Overview
of the Statute of Limitations 1957
E Scope
of the Consultation Paper
F Outline
of the Consultation Paper
CHAPTER 1
EVOLUTION OF THE LAW ON
LIMITATION
AND GUIDING PRINCIPLES
B The
Origins of the Statute of Limitations
(2) Common Law
Procedure (Ireland) Act 1853
(4) Reform in the 20th
Century
C Competing
Constitutional Interests
(3) The Public
Interest / The Common Good
(4) Judicial Review:
Restricted Limitation Periods
(5) Balancing the
Various Rights and Interests
D The
European Convention on Human Rights
(1) Right of Access
to the Courts
(2) Right to a
Hearing within a Reasonable Time
(3) Right to respect
for private and family life
(4) Right to an
Effective Remedy
E Conclusion
and Provisional Recommendations
CHAPTER 2
CURRENT LAW OF LIMITATIONS
B The
Statute of Limitations 1957
(5) Actions in
respect of Breach of Trust
(9) Claims for
Equitable Relief
D The
Running of the Basic Limitation Period 132
G Dismissal
for Want of Prosecution
H Postponement
or Extension of the Limitation Period 137
(1) Effect of Expiry
of the Limitation Period
(2) Calculating the
Limitation Period
(3) Set-Offs and
Counterclaims
J General
Problems with the Current Law
(4) Classification
Difficulties
(6) Time-Wasting and
Costliness
K Conclusion
and Provisional Recommendation
CHAPTER 3
MODELS FOR REFORM: a CORE
LIMITATION REGIME?
B What
is a “Core Limitations Regime”?
C Why
Introduce a Core Regime?
E Conclusion
and Provisional Recommendation
CHAPTER 4
A UNIFORM BASIC LIMITATION PERIOD?
B Trends
in the reform of basic limitation periods
(1) Reduction of the
Range
of
Different Limitation Periods
(2) “Catch-All”
Limitation Periods
(3) Uniform Basic
Limitation Periods
(4) Provisional
Recommendation
C Length
of the Uniform Basic Limitation Period 178
(7) A variety of
fixed Lengths: the British
Columbia
model
(9) Provisional
Recommendation
D Running
the Basic Limitation Period
(2) Date of the Act
or Omission giving rise
to
the Action
(4) Alternative
Starting Dates: Accrual or Discoverability
(5) Conclusion and
Provisional Recommendation
CHAPTER 5
A UNIFORM ULTIMATE LIMITATION PERIOD?
B History
of the Ultimate Limitation Period
(1) Advantages of an
Ultimate Limitation Period
(2) Disadvantages of
an Ultimate Limitation Period
(3) Provisional
Recommendation
(1) Actions in
respect of Defective Premises
(3) Actions founded
in Tort & Contract (excluding personal injuries)
(4) Actions in
respect of Non-Sexual Child Abuse
D Appropriate
Length of the Ultimate Limitation Period
(5) Previous
Recommendations (10 or 15 years)
(6) Provisional
Recommendation
E Appropriate
Starting Point of the Ultimate
Limitation
Period
(1) Selected Models
for Reform
(2) Provisional
Recommendation (General)
F Application
to Personal Injuries Actions
(2) Law Reform
Commission of
Western
Australia (1997)
(3) Law Commission
for England and
Wales
(1998/2001)
(4) Scottish Law
Commission (2007)
(5) Provisional
Recommendation (Personal Injuries)
B Evolution
of the Approach taken to Discretion
(1) The Wright
Committee (1936)
(2) The Tucker
Committee (1949)
(3) The Edmund Davies
Committee (1962)
(4) The Orr Committee
Report of 1975 -
personal
injuries
(5) The Orr Committee
Report of 1977 -
Latent
Damage
(6) Law Commission
for England and Wales
(1998,
2001)
D The
Merits and Drawbacks of Judicial Discretion
E Conclusion
and Provisional Recommendations
CHAPTER 7
DISMISSAL OF CLAIMS FOR WANT
OF PROSECUTION
(2) Increased
awareness of the Consequences of Delay
(4) Restrictions in
Personal Injuries litigation
D A
Stricter Approach to Delay
(2) A stricter
approach to delay in other areas
of
the law
E Relationship
with the Statute of Limitations 313
(1) Relevance of the
Expiry of the Limitation Period
(2) The House of
Lords’ Approach
(4) Ireland:
Exceptional Cases
F Conclusion
and Provisional Recommendation
CHAPTER 8
POSTPONEMENT, SUSPENSION AND
EXTENSION OF LIMITATION PERIODS
B The
Plaintiff’s ‘Disability’
(1) “Disability”: the
General Rule
C Acknowledgments
or Part Payment by the defendant
D Fraud
and Fraudulent Concealment
E Actions
seeking relief from the consequences of Mistake
CHAPTER 9
SUMMARY OF PROVISIONAL
RECOMMENDATIONS
TABLE
OF LEGISLATION
|
32 Hen VII, c.2 |
UK |
|
|
Adults with Incapacity (Scotland) Act 2000 |
ASP 4 |
Scot |
|
Age of Majority Act 1985 |
No. 2 of 1985 |
Ireland |
|
Arbitration Act 1954 |
No. 26 of 1954 |
Ireland |
|
Carriage of Passengers by Road Act 1974 |
c. 35 |
UK |
|
Civil Liability Act 1961 |
No. 41 of 1961 |
Ireland |
|
Civil Liability and Courts Act 2004 |
No. 31 of 2004 |
Ireland |
|
Civil Procedure Act 1833 |
3 & 4 Will IV, c.42 |
UK |
|
Common Law Procedure Amendment Act (Ireland) 1853 |
16 & 17 Vic, c.113 |
Ireland |
|
Companies (Consolidation) Act 1908 |
8 Edw. 7, c. 69 |
Ireland |
|
Companies Act 1963 |
No. 33 of 1963 |
Ireland |
|
Company Directors Disqualification Act 1986 |
c.46 |
UK |
|
Criminal Law Act 1997 |
No. 14 of 1997 |
Ireland |
|
Debtors (Ireland) Act 1840 |
3 & 4 Vic, c.105 |
Ireland |
|
Defamation Act 1986 |
c.31 |
UK |
|
Defamation Act 2005 (Victoria) |
No. 75 of 2005 |
Vic |
|
Employment Rights Act 1996 |
c.18 |
UK |
|
European Convention on Human Rights Act 2003 |
No. 20 of 2003 |
Ireland |
|
Family Law (Divorce) Act 1996 |
No. 33 of 1996 |
Ireland |
|
Family Law Act 1995 |
No. 26 of 1995 |
Ireland |
|
Fatal Accidents Act 1846 |
9 & 10 Vic, c.93 |
Ireland |
|
Fatal Injuries Act 1956 |
No. 3 of 1956 |
Ireland |
|
Forfeiture Act 1870 |
33 & 34 Vic, c.23 |
UK |
|
Illegal Immigrants (Trafficking) Act 2000 |
No. 29 of 2000 |
Ireland |
|
Industrial and Commercial Property Act 1927 |
No. 16 of 1927 |
Ireland |
|
Inheritance (Provision for Family and Dependants) Act 1975 |
c.63 |
UK |
|
Interpretation Act 2005 |
No. 23 of 2005 |
Ireland |
|
Irish Land Commission (Dissolution) Act 1992 |
No. 25 of 1992 |
Ireland |
|
Landlord and Tenant Act (Ireland) 1860 |
23 & 24 Vic, c.154 |
UK |
|
Latent Damage Act 1986 |
c.37 |
UK |
|
Law Reform (Limitation of Actions &c.) Act 1954 |
2 & 3 Eliz. 2, c.36 |
UK |
|
Liability for Defective Products Act 1991 |
No. 28 of 1991 |
Ireland |
|
Limitation Act |
RSBC 1996, c.266 |
BC |
|
Limitation Act 1623 |
21 James I, c.16 |
UK |
|
Limitation Act 1935 (Western Australia) |
Act No. 035 of 1935 |
WA |
|
Limitation Act 1939 |
2 & 3 Geo. 6, c.21 |
UK |
|
Limitation Act 1950 |
No. 65 of 1950 |
NZ |
|
Limitation Act 1963 |
c.47 |
UK |
|
Limitation Act 1969 (New South Wales) |
No. 31 of 1999 |
NSW |
|
Limitation Act 1974 (Tasmania) |
No. 98 of 1974 |
Tas |
|
Limitation Act 1975 |
c. 54 |
UK |
|
Limitation Act 1980 |
c. 58 |
Eng |
|
Limitation Act 1981 (Northern Territory |
No. 87 of 1981 |
NT |
|
Limitation Act 1985 (Australian Capital Territory) |
1985-66 |
ACT |
|
Limitation Act 1987 (Manitoba) |
C.C.S.M., c. L150 |
Man |
|
Limitation Act 2005 |
No. 19 of 2005 |
WA |
|
Limitation of Actions Act |
RSA 1980, c.L-15 |
Al'ta |
|
Limitation of Actions Act 1936 (South Australia) |
|
SA |
|
Limitation of Actions Act 1958 (Victoria) |
|
Vic |
|
Limitation of Actions Act 1974 (Queensland) |
|
Qld |
|
Limitation Statutes Amendment Act 2007 |
SA 2007, c.22 |
Al'ta |
|
Limitations Act |
SA 1996, c.L-15.1 |
Al'ta |
|
Limitations Act |
RSA 2000, c.L-12 |
Al'ta |
|
Limitations Act 2002 |
SO 2002, c.24 |
Ontario |
|
Limitations Act 2004 |
SS 2004, c.L-16.1 |
Sask'n |
|
Local Government (Planning and Development) Act 1963 |
No. 28 of 1963 |
Ireland |
|
Lunacy Regulation (Ireland) Act 1871 |
34 & 35 Vic, c.22 |
UK |
|
Malicious Injuries Act 1981 |
No. 9 of 1981 |
Ireland |
|
Maritime Conventions Act 1911 |
1 & 2 Geo 5, c.57 |
UK |
|
Married Women's Property Act 1882 |
45 & 46 Vict, c.75 |
UK |
|
Matrimonial Causes Act 1973 |
c. 18 |
UK |
|
Mercantile Law Amendment Act 1856 |
19 & 20 Vic, c.97 |
UK |
|
Mercantile Marine Act 1955 |
No. 29 of 1955 |
Ireland |
|
Merchant Shipping Act 1947 |
No. 46 of 1947 |
Ireland |
|
Merchant Shipping Act 1995 |
c.21 |
UK |
|
Moneylenders Act 1933 |
No. 36 of 1933 |
Ireland |
|
Planning and Development Act 2000 |
No. 30 of 2000 |
Ireland |
|
Proceeds of Crime Act 1996 |
No. 30 of 1996 |
Ireland |
|
Public Authorities Protection Act 1893 |
56 & 57 Vic, c.61 |
UK |
|
Real Property Limitation Act 1833 |
3 & 4 Will IV, c.27 |
UK |
|
Real Property Limitation Act 1874 |
37 & 38 Vic., c.57 |
UK |
|
Sale of Goods and Supply of Services Act 1980 |
No. 16 of 1980 |
Ireland |
|
Solicitors Act 1974 |
c.47 |
UK |
|
Statute of Frauds Amendment Act 1828 |
9 Geo 4, c.14 |
UK |
|
Statute of Limitations (Amendment) Act 1991 |
No. 18 of 1991 |
Ireland |
|
Statute of Limitations (Amendment) Act 2000 |
No. 13 of 2000 |
Ireland |
|
Statute of Limitations 1957 |
No. 6 of 1957 |
Ireland |
|
Succession Act 1965 |
No. 27 of 1965 |
Ireland |
|
Tortfeasors Act 1951 |
No. 1 of 1951 |
Ireland |
|
Workmen's Compensation Act 1934 |
No. 9 of 1934 |
Ireland |
TABLE
OF CASES
|
UK |
||
|
Allergan Pharmaceuticals (Ireland) Ltd v Noel Deane Roofing and Cladding Ltd |
Ireland |
|
|
Barry v Ireland |
App. no. 18273/04, 15 December 2005, [2005] ECHR 865 |
ECtHR |
|
Birkett v James |
[1978] 1 AC 297 |
UK |
|
Brady v Donegal County Council |
[1989] ILRM 282 |
Ireland |
|
Byrne v Minister for Defence |
Ireland |
|
|
Cahill v Sutton |
[1980] 1 IR 269 |
Ireland |
|
Cartledge v E Jopling & Sons Ltd |
[1962] 1 QB 189 |
UK |
|
Casey v An Bord Pleanála |
[2004] 2 IR 296 |
Ireland |
|
Cormack and Farrell v DPP & Ors |
Ireland |
|
|
Crawford Inspector of Taxes v Centime Ltd |
Ireland |
|
|
Desmond v MGN Ltd |
Ireland |
|
|
Devlin v Roche & Others |
Ireland |
|
|
Doran v Ireland |
App. No. 50389/99, 31 July 2003 [2003] ECHR 417 |
ECtHR |
|
Dowd v Kerry County Council |
[1970] IR 27 |
Ireland |
|
Faherty v Minister for Defence & Ors |
Ireland |
|
|
Firman v Ellis |
[1978] QB 886 |
Eng |
|
Gilroy v Flynn |
Ireland |
|
|
Gleeson v Feehan (No. 2) |
[1997] ILRM 522 |
Ireland |
|
Guerin v Guerin |
[1992] 2 IR 287 |
Ireland |
|
Harding v Cork County Council |
Ireland |
|
|
Hogan v Jones |
[1994] 1 ILRM 512 |
Ireland |
|
In re Article 26 and the Illegal Immigrants (Trafficking) Bill 1999 |
Ireland |
|
|
J MacH v JM |
[2004] 3 IR 385 |
Ireland |
|
J O'C v Director of Public Prosecutions |
[2000] 3 IR 478 |
Ireland |
|
J. O'C. v Director of Public Prosecutions |
[2000] 3 IR 478 |
Ireland |
|
J.A. Pye (Oxford) Ltd v United Kingdom |
App. no. 44302/02, 30 August 2007 |
ECtHR |
|
Jerry Beades Construction Ltd v Dublin Corporation |
Ireland |
|
|
Kategrove (in receivership) v Anglo Irish Bank |
Ireland |
|
|
Kearns & Fallon v McCann Fitzgerald |
Ireland |
|
|
Kelly v Leitrim County Council |
Ireland |
|
|
Kelly v O'Leary |
[2001] 2 IR 526 |
Ireland |
|
KM v HM |
(1992) 96 DLR (4th) 289 |
Can |
|
Maher v Maher |
[1987] ILRM 582 |
Ireland |
|
Marshall v Arklow Town Council |
[2006] 1 ILRM 150 |
Ireland |
|
McDonnell v Ireland |
[1998] 1 IR 134 |
Ireland |
|
McFarlane v Director of Public Prosecutions |
Ireland |
|
|
McGuinness v Armstrong Patents Ltd |
[1980] IR 289 |
Ireland |
|
McMullen v Ireland |
App. no. 42297/98, 29 July 2004, [2004] ECHR 422 |
ECtHR |
|
Moorview Development Ltd v First Active plc |
Ireland |
|
|
Morrissey v Analog Devices BV |
Ireland |
|
|
Moynihan v Greensmyth |
[1977] IR 55 |
Ireland |
|
MPD & Ors v MD |
[1981] ILRM 179 |
Ireland |
|
Murphy v Attorney General |
[1982] IR 241 |
Ireland |
|
Norris v Attorney General |
Ireland |
|
|
Ó Domhnaill v Merrick |
[1984] 1 IR 151 |
Ireland |
|
O'Brien v Keogh |
[1972] IR 44 |
Ireland |
|
O'Brien v Manufacturing Engineering Co. Ltd |
[1973] IR 334 |
Ireland |
|
O'Grady v Southern Health Board & Anor |
Ireland |
|
|
O'Keeffe v Commissioner for Public Works |
Supreme Court, 24 March 1980 |
Ireland |
|
Openneer v Donegal County Council |
Ireland |
|
|
O'Reilly & Ors v Ireland |
App. no. 54725/00, 29 October 2004, [2006] 40 EHRR 40 |
ECtHR |
|
Phinikaridou v Cyprus |
App. no. 23890/02, 20 December 2007 |
ECtHR |
|
Poole v O'Sullivan |
[1993] ILRM 55 |
Ireland |
|
Primor Ltd v Stokes Kennedy Crowley |
[1996] 2 IR 459 |
Ireland |
|
Rainsford v Limerick Corporation |
[1995] 2 ILRM 561 |
Ireland |
|
Roche v Michelin Tyre plc |
Ireland |
|
|
Rojack v Taylor & Buchalter |
Ireland |
|
|
Ryan v Attorney General |
Ireland |
|
|
S v Minister for Justice, Equality and Law Reform |
Ireland |
|
|
Sinnott v Minister for Education |
Ireland |
|
|
Southern Mineral Oil v Cooney |
[1997] 3 IR 549 |
Ireland |
|
Stephens v Paul Flynn Ltd |
Ireland |
|
|
Tate v Minister for Social Welfare |
[1995] 1 IR 418 |
Ireland |
|
Tennyson v Dun Laoghaire Corporation |
[1991] 2 IR 527 |
Ireland |
|
Thompson v Brown |
[1981] 1 WLR 744 |
UK |
|
Toal v Duignan (No. 1) |
[1991] ILRM 135 |
Ireland |
|
Toal v Duignan (No. 2) |
[1991] ILRM 140 |
Ireland |
|
Tolley v Morris |
[1979] 1 WLR 592 |
UK |
|
Tuohy v Courtney |
[1994] 3 IR 1 |
Ireland |
|
White v Dublin City Council |
Ireland |
|
|
Wicklow County Council v O'Reilly & Anor |
Ireland |
|
|
Wolfe v Wolfe |
Ireland |
1.
This Consultation Paper
forms part of the Commission’s Third Programme of Law Reform 2008-2014,[1]
and involves a general examination of limitation periods in civil actions, many
of which are contained in the Statute of Limitations 1957 (as amended).
2.
The Commission has
previously addressed specific aspects of limitation periods in civil actions,
including in its 1987 Report on the Statute of Limitations: Claims in
Respect of Latent Personal Injuries.[2]
The issue was also addressed in the Commission’s 2005 Report on Reform and
Modernisation of Land Law and Conveyancing Law.[3]
Many of the Commission’s recommendations have been implemented by the
Oireachtas, notably in the Statute of Limitations (Amendment) Act 1991 (claims
relating to latent personal injuries) and the Land and Conveyancing Law
Reform Act 2009 (land-related claims).
3.
Given the practical
importance of limitation periods to civil proceedings, the Commission decided
that it was appropriate to include a general review of this area in the Third
Programme of Law Reform 2008-2014. This Consultation Paper builds on and in
many instances incorporates the proposals made in the Commission’s previous
publications on this subject in order to provide a general frame of reference
for the future.[4]
4.
The law concerning
“limitation of actions” refers to the system of rules that limits the period of
time available to a person (“the plaintiff”) to initiate a civil claim (also
known as an “action”) against another person (“the defendant”).
5.
This system of rules
allows the plaintiff a specific amount of time, running from a specified date,
within which to bring an action against the defendant. If the plaintiff
fails to commence proceedings within the time allowed, the defendant has a
defence to the plaintiff’s claim and may argue that the plaintiff is out of
time (“statute-barred”). The defendant must then establish to the court
that the plaintiff commenced proceeding outside the time period allowed. If
the defendant satisfies the court that the plaintiff is statute-barred, the
defendant has immunity from liability, regardless of whether the plaintiff’s
claim was well founded.
6.
The “commencement of
proceedings” is achieved by issuing an originating document in the appropriate
court office. Once the plaintiff commences proceedings, the limitation
clock stops running. The plaintiff need not serve the originating
document on the defendant in order for the clock to be stopped; once the document
is issued, the clock stops running.[5]
7.
The law on limitation
of actions in Ireland is most visibly governed by the Statute of Limitations
1957, as amended in particular by the Statute of Limitations (Amendment)
Act 1991,
and the Statute of Limitations (Amendment) Act 2000.[6]
8.
The 1957 Statute
contains the relevant time limits for initiating many, though not all, civil
actions. With the advent of an increasing amount of legislation that either
involves the statutory codification of the relevant rules of civil liability or
the creation of completely new areas of liability, it has become necessary to
set out new limitation periods for these new types of proceedings. In some
instances, this has involved making amendments to the Statute of Limitations
1957, but in others the relevant limitation period is simply included in
the new legislation without reference to the Statute of Limitations. The
result is that limitation periods are now to be found in a large number of Acts[7]
as well as in the Statute of Limitations.
9.
In approaching the
preparation of this Consultation Paper, therefore, the Commission is aware
that, in reviewing the Statute of Limitations and making proposals for
its reform, it must take account of the reality that some limitation periods
are already to be found in other Acts. The Commission considers that the
inclusion of limitation periods in specific Acts other than the Statute of
Limitations has a clear practical advantage from the point of view of
accessibility, namely that a person with an interest in that area will be able
to see immediately the relevant limitation period for the subject in question
rather than having to search separately in the Statute of Limitations.
The Commission does not, therefore, consider that it would be useful (or
feasible) to remove these limitation periods from specific Acts and to attempt
to compile a Statute of Limitations containing all limitation
periods for all civil actions. Indeed, no Statute of Limitations
has attempted to do this.
10.
While the Statute of
Limitations 1957 does not, therefore, contain a complete statement of the
rules concerning limitation periods, the Consultation Paper concentrates on it
because it continues to set out the limitation periods for many civil claims.
11.
The 80 sections that
make up the Statute of Limitations 1957 involve a complex matrix that
must be understood in its entirety in order to determine the applicable
limitation period, the running of that period and the possibility of the
extension of that period for some reason (such as the potential litigant being
under age at the time of an incident or because of an external factor such as
fraud).
12.
The Statute of
Limitations 1957 contains what might be described as a traditional system
of limitation, in which various civil actions, or causes of action, are
identified and specific periods of limitation are assigned to each. At
present, the Statute contains seven different limitation periods (1, 2, 3, 6, 12, 30 and 60 years) that apply to a wide range of
civil actions. The civil actions to which these limitation periods apply
are divided into four general headings:
A
Common law actions,
notably claims concerning contracts (including debt-related claims) and torts
(including personal injury actions);[8]
B
Actions for the recovery
of land, which take up 30 of the 80 sections in the Statute;[9]
C
Actions in respect of
trust property;[10]
D
Actions to recover the
personal estate of a deceased person, such as the legal right share under the Succession
Act 1965.[11]
13.
As already indicated, Statutes
of Limitation have never attempted to set out limitation periods for all
types of civil actions. The Statute of Limitations 1957 takes this
approach by specifying that it does not apply to the following types of civil
actions:
·
Proceedings in respect
of the forfeiture to the State of a ship or of an interest in a ship under the Mercantile
Marine Act 1955;[12]
·
Actions within the
Admiralty jurisdiction of the High Court that are enforceable in rem;[13]
·
Proceedings under the Proceeds
of Crime Act 1996;[14]
·
Actions for which a
period of limitation is fixed by any other limitation enactment,[15]
such as the Succession Act 1965;
·
Actions to which a
State authority is a party and for which, if that State authority were a
private individual, a period of limitation would be fixed by any other
limitation enactment.[16]
14.
The Commission intends
to follow the approach taken in the 1957 Statute by leaving outside the scope
of this Paper a number of specialist areas of civil actions. Thus, the
Commission does not address the areas already excluded from the scope of the
1957 Statute, such as admiralty actions. Nor does the Paper deal with
limitation periods concerning land, which merit separate treatment.[17]
15.
As the focus of the
Paper is on private law civil proceedings, the Paper does not address
limitation periods in public law litigation, such as judicial review, planning,
asylum or immigration proceedings.[18]
Any discussion of these public law areas in the Paper is intended to assist the
Commission’s approach to reform by reference to relevant general principles.
Nor does the Paper address limitation periods for arbitration, mediation or
conciliation[19]
or the specialised limitation periods that apply to employment-related claims.
16.
Although the Paper does
not address time limits concerning procedural matters that arise after
proceedings have been initiated, the Commission examines the inherent power of
the courts to dismiss civil proceedings, which arise where, for example, civil
proceedings would be unfair to the defendant (because of delay) or for the
(sometimes related) reason that they would involve an abuse of the process of
the courts. Although this power of the courts is not currently dealt with in
the Statute of Limitations, the Commission considers that it is
of such direct relevance as to merit discussion here.
17.
Having excluded certain
areas from the scope of this project, the actual focus of the Commission’s
analysis is on what the Statute of Limitations 1957 describes as common
law actions. This category includes claims involving a breach of contract and
actions concerning debt recovery. It also includes tort actions, notably
personal injuries actions. From a practical point of view, these actions make
up a large portion of the civil business of the courts. This can be
gleaned from the Courts Service’s Annual Report 2007, which provides the
following figures for civil actions in the High Court, Circuit Court and
District Court.
18.
The civil business of
the High Court increased by 25% between 2006 and 2007.[20]
The following is a breakdown of the different actions initiated in 2006
and 2007:
|
Actions commenced in the High Court |
2006 |
2007 |
+ / - |
|
New personal injuries summonses |
2,673 |
5,951 |
+ 122% |
|
Registration of judgments |
2,960 |
3,324 |
+ 12% |
|
New Claims for Liquidated Debts |
1,894 |
2,292 |
+ 21% |
|
New medical negligence claims |
334 |
566 |
+ 70% |
|
Actions under the Companies Acts |
462 |
480 |
+ 4% |
|
Judgment mortgage affidavits |
402 |
471 |
+ 17% |
|
Garda Compensation Act actions |
171 |
317 |
+ 85% |
|
European Arrest Warrant cases |
171 |
207 |
+ 21% |
|
Lis pendens registrations |
127 |
274 |
+ 116% |
|
Judgments on foot of Master’s Order |
157 |
196 |
+ 25% |
|
New cases in the Commercial List [21] |
N/A |
196 |
+ 73% |
|
New family law cases |
112 |
97 |
- 15% |
|
Applications under Solicitors Acts |
48 |
63 |
+ 30% |
19.
The civil business of
the Circuit Court increased by 15% between 2006 and 2007.[22]
The following is a breakdown of the actions initiated in 2007:
|
Actions commenced in Circuit Court 2007 |
Claims |
% of total |
|
Breach of contract / debt collection |
15,481 |
51% |
|
Personal injuries actions |
7,154 |
24% |
|
Other actions |
7,800 |
25% |
20.
The general civil
business of the District Court increased by more than 18% between 2006 and
2007,[23] while the Small Claims procedure[24]
saw an increase of 25% in new applications.[25]
21.
This Consultation Paper
focuses in particular on these civil actions, bearing in mind that they make up
the great majority of the civil business of the courts. The Consultation Paper
also contains a discussion (sometimes brief) of a number of other aspects of
the Statute of Limitations 1957 which may merit reform.
22.
In Chapter 1, the
Commission examines the history and evolution of the modern law on limitation
of actions in order to identify the principles that ought to be applicable to a
modern legislative framework. The Commission considers that a system of rules
governing the limitation of actions must aim to ensure that legal arguments are
resolved in an orderly and timely fashion. Any such system must be designed
with a view to ensuring, to the greatest extent possible, fairness both to the
plaintiff and to the defendant, with due regard to the public interest. The
Commission is mindful, therefore, that a limitations system must take account
of the competing rights and interests of plaintiffs, defendants and the public,
as set out in the Constitution and the European Convention on Human Rights.
23.
In Chapter 2, the
Commission outlines in detail the current general statutory provisions on limitation
of actions in Ireland, as set out in the Statute of Limitations 1957 (as
amended). The Commission also describes some of the difficulties and
complexities arising from the current state of the law. The Commission begins
by discussing the key basic limitation periods in the 1957 Statute, with
particular emphasis on the common law actions (contract, debt-related claims
and tort, including personal injuries claims) that form the focus of this
Consultation Paper. For the sake of completeness, and to illustrate the wide
variety of limitation periods in the 1957 Statute, the Commission also
discusses the basic limitation periods for other forms of actions, even though
it does not propose to make wide-ranging recommendations in respect of those
other actions.
24.
The Commission notes
that, in general, the limitation periods under the Statute of Limitations
1957 run from the date of accrual of the cause of action. In this respect,
unless otherwise specified, the accrual of a right of action is governed by the
common law. The Commission also notes that, subject to the specific exceptions
discussed in the Chapter, no general discoverability rule applies in Ireland at
present. The Commission also notes that, subject to the exceptions discussed,
“ultimate” or “long stop” limitation periods are not a common feature of the
current law of limitations in Ireland. The Commission then discusses the
limited provision for judicial discretion to extend or dis-apply statutory
limitation periods and also refers briefly to the (related) inherent discretion
of the courts to dismiss claims where there has been undue delay; this is
discussed in detail in Chapter 7.
25.
The Commission
discusses the provisions of the 1957 Statute that provide for the postponement
of running of the various fixed limitation periods in the event of, for
example, the plaintiff being under age or some external factor such as fraud.
The Commission also discusses some necessary aspects of practice and procedure
of the courts in respect of limitation periods.
26.
The Commission then
provides a summary of the complexities and problems that arise from the current
state of limitations law in the 1957 Statute. The Commission completes Chapter
2 by briefly drawing conclusions from the analysis in the Chapter and makes a
provisional recommendation on the need for reform. In this respect, the
Commission considers that the Statute of Limitations 1957 does not take
account of the relevant principles that should apply to a modern legislative
framework, as it is unnecessarily complex, and the Commission therefore
concludes that it is in need of fundamental reform and simplification. Like
Chapter 1, this Chapter therefore forms an essential background against which
the reforms being proposed by the Commission are to be assessed.
27.
In Chapter 3, the
Commission discusses possible models for reform of the law on limitations,
based on an examination of the approaches taken in a number of other States.
This comparative review shows that a trend has emerged towards the introduction
of a “core limitations” regime. The key features of core limitations regimes in
other States are: a uniform basic limitation period; a uniform commencement
date; and a uniform ultimate limitation period (“long-stop”). Chapter 3
examines these key features in detail, and the Commission concludes by
recommending that a form of core limitation system should be introduced in
Ireland.
28.
In Chapter 4, the
Commission addresses the nature of the basic limitation period that would apply
in a core limitations regime, and explores proposals as to the appropriate
length of a uniform basic limitation period, and the date from which it should
run. The Commission examines three trends in the reform of basic limitation
periods: (a) reduction of the number of different limitation periods
applicable; (b) introduction of “catch all” basic limitation periods; and (c)
introduction of uniform basic limitation periods. The Commission
concludes that a uniform basic limitation period be introduced. The Commission
also examines the duration of the basic limitation period, bearing in mind that
the duration of the various limitation periods that apply at present has been
described as a matter of historical accident. The Commission provisionally
recommends that a choice be made between two suggested options in this respect:
either one basic limitation period of two years, or three basic limitation
periods of one, two and six years. The Commission then examines the
method by which the basic limitation period would run, recommending a date of
knowledge test
29.
In Chapter 5, the
Commission discusses an ultimate limitation period or “long-stop” in the
context of a core limitations regime. This would involve the introduction of a
period of limitation beyond which no action could be brought, even if the cause
of action has not yet accrued or is not yet discoverable. The Commission
examines the history of ultimate limitation periods and also re-examines its
previous recommendations on the introduction of ultimate limitation periods in
specific civil actions. The Commission then examines the range of ultimate limitation
periods enacted in other States, which includes periods of 10, 15 and 30 years’
duration. The Commission also examines the issue of the dates from which the
ultimate limitation period should run, again based on a comparative analysis of
the situation in other jurisdictions. In completing Chapter 5, the Commission
examines the various approaches that have been taken to the application of
ultimate limitation periods in personal injuries actions
30.
In Chapter 6, the
Commission assesses the merits and disadvantages that might arise if a judicial
discretion was introduced which would allow the courts to extend or dis-apply
limitation periods. The Commission examines the evolving approach to such a
discretion in a number of different jurisdictions, noting that there has been
considerable movement in the approach taken to this issue. Having analysed the
merits and drawbacks of introducing such a discretion, the Commission sets out
its conclusions and recommendation that such a discretion would not, in
general, be required in the Commission’s proposed limitations regime.
31.
In Chapter 7, the
Commission discusses the connection between the law on limitation of actions
and the inherent discretion of the courts to dismiss or strike out claims for
failure to progress them (called “want of prosecution”). The Commission
examines the general principles that have guided the courts for many years in
applying this inherent jurisdiction. The Commission notes that a stricter approach
to delay has been applied by the courts having regard to the relevant rights in
the Constitution and the European Convention on Human Rights. The Commission
provisionally recommends that the new limitations regime should be without
prejudice to this inherent discretion of the courts.
32.
In Chapter 8, the
Commission completes the Consultation Paper by addressing what is variously
described as the postponement, suspension, or extension of limitation periods.
The discussion is framed by reference to the general view of the Commission
that a simplified core limitations regime should be introduced to replace the
unduly complex system that applies in Ireland at present. The Commission
addresses the situation that arises where, for example, a plaintiff is under
age. The Commission also questions the continued application of the current
rules governing postponement of limitation periods because of, for example,
part-payments. The Commission also discusses the merits of postponing the limitation
period where the action is based on the fraud of the defendant or is concealed
by fraud. The Commission concludes its analysis by examining the extension of
the limitation period where the plaintiff is seeking relief from the
consequences of a mistake.
33.
Chapter 9 contains a
Summary of the Commission’s provisional recommendations.
34.
This Consultation Paper
is intended to form the basis of discussion and therefore all the
recommendations made are provisional in nature. The Commission will make its
final recommendations on
the law of limitations
following further consideration of the issues and consultation with interested
parties. Submissions on the provisional recommendations included in this
Consultation Paper are welcome. To enable the Commission to proceed with the preparation of its final
Report, those who wish to do so are requested to make their submissions in
writing by post to the Commission or by email to info@lawreform.ie by 30
November 2009.
1.01
As the Commission has
noted in the Introduction to this Consultation Paper, the Statute of
Limitations 1957[26]
contains a wide
range of limitation periods that apply to a great number of civil
actions. The Statute has been in force in Ireland for over 50
years, but the reasons for which one period of limitation applies to a particular action instead of another
can generally be traced back to limitations legislation originating in the 17th
and 18th centuries. The current six-year limitation period
that is generally applicable to actions founded in contract, for example, can
be traced as far back as the
Limitation Act 1623.[27]
1.02
It is questionable
whether the reasons for which the various limitation periods were assigned centuries ago remain applicable today. Thus,
in 1623 communication and information-gathering was carried out in a manner
that would be unrecognisable today. Communication and the retrieval of
information and data are now, of course, infinitely easier and speedier. For
many actions, the reason for which a particular period of limitation period
applies has not been reconsidered for more than a century, if at all.
1.03
In light of the absence
of recent analysis of the foundation for limitations law, the Commission
considers it important, in the context of a general review of limitations law,
to re-evaluate the policies and principles underlying limitations and it is
considered that in order to identify the principles applicable to a modern
statute of limitations, it is appropriate to first examine the history and
evolution of modern limitations law.
1.04
In Part B, the
Commission examines the early origins of the law on limitations of actions.
In Part C, the Commission discusses the guidance which decisions of the
Irish courts on the constitutionality of various limitation periods provides as
to the future of limitations law. In Part D, the Commission discusses the
relevance of case law under the European Convention on Human Rights to
limitation periods. In Part E, the Commission draws conclusions on the analysis
made in the Chapter.
1.05
In the early history of
common law, no time limit applied to the commencement of civil actions; the
only restriction was found in equity, through the doctrines of laches
and acquiescence. Limitation periods were first set by reference to a
fixed period of time rather than a fixed date as of 1540, when an Act of
Limitation 1540 set
limitation periods of 60, 50 and 30 years for actions to recover property.[28]
A statute of limitations dealing with common law actions was first enacted in
England in 1623.[29]
Later limitations enactments dealt with various other aspects of
limitation, including the application of limitation periods to the Crown,[30]
actions upon a specialty,[31]
actions to recover land or money charged on land,[32]
actions against trustees,[33]
and actions against public authorities.[34]
Statutes of limitation have traditionally applied to common law actions, namely
actions founded in tort and simple or quasi-contract as it has generally been
considered that such are amendable to limitations.[35]
1.06
These early statutes of
limitations were based on a system whereby the assigned limitation period began
to run at the date of accrual of the cause of action. Limitation periods
of fixed duration were used; and limitation periods of different lengths were
assigned to defined categories of action. Further features of the early systems
were the suspension of the limitation period where the plaintiff was suffering
from a disability, and the variation of the limitation period because of
agreement or admission. The system was designed to operate as mechanically as
possible, as fixed rules of law;[36]
it was that imperative that led to many of the problems that now haunt the
modern statutes of limitations.
1.07
There were no
limitation periods for actions unrelated to the recovery of land until the Limitation
Act 1623 was introduced to govern the limitation of ‘common law actions’.[37]
The 1623 Act was amended on many occasions,[38]
and became known as a ‘statute of repose’.[39]
It did not address the limitation of actions to recover land, equitable
claims, or actions in respect of trusts. It set a series of fixed
limitation periods, running from a fixed date - generally the date of accrual
of the cause of action. This formulation formed the basis for limitation
statutes throughout the common law world. The limitation periods set by
the Act include the following:
|
LENGTH |
ACTION |
|
2 years |
Actions in the case for words |
|
4 years |
Actions of assault, menace, battery, wounding, and false imprisonment |
|
6 years |
Most other actions. |
1.08
Many of the limitation
periods applicable under the 1623 Act still apply in various common law
jurisdictions.
1.09
The 1623 Act did not
set limitation periods for contracts under seal (i.e. specialties); actions of
account between merchants, their servants of factors; actions brought for debt
under a special statute; or actions brought on a record. It was
eventually supplemented by the Civil Procedure Act 1833,[40]
which prescribed the following limitation periods:
|
LENGTH |
ACTION |
|
2 years |
Actions to recover penalties |
|
6 years |
Actions of debt upon an award |
|
20 years |
Actions on a bond or other specialty |
1.10
The 1623 Act and its
successors were passed in order to give more precise effect to the presumption,
already made by law, that after a long lapse of time, debts have been paid and
rights satisfied.[41]
It is considered that the reasons for this presumption are twofold: first, it
is desirable that there be an end to litigation, and that persons should not be
exposed to the risk of stale demands; and secondly, it may be impossible for
the defendant to prove his case owing to the passage of time, and the loss of
documents or the death of witnesses.[42]
These dual requirements of certainty and fairness remain the crucial factors to
be balanced in limitations law.
1.11
The English Limitation
Act 1623 did not apply to Ireland, but an Irish Statute was
subsequently enacted, containing almost the same provisions.[43]
1.12
The provisions that
were enacted to regulate the limitation of actions in Ireland were generally
drafted in terms identical to the English Acts.[44]
The Common Law Procedure Amendment Act (Ireland) 1853[45]
consolidated and repealed the provisions previously applicable in
Ireland.[46]
Subject to some minor amendments,[47]
the 1853 Act remained in force in Ireland until the Statute of Limitations
1957 came into force on January 1 1959.[48]
1.13
The 1853 Act set the
following fixed limitation periods:
|
Common Law Procedure Amendment Act (Ireland) 1853 |
|
|
2 years |
Actions for words.[49] |
|
Actions for penalties, damages, or sums of money.[50] |
|
|
4 years |
Actions for trespass to the person (assault, menace, battery, wounding, and imprisonment).[51] |
|
6 years |
Actions grounded upon any lending or contract, express or implied, without specialty.[52] |
|
Actions upon any award where the submission is not by specialty.[53] |
|
|
Actions for any money levied on fieri facias.[54] |
|
|
Actions of account or for not accounting (other than for such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants).[55] |
|
|
Actions for direct injuries to real or personal property.[56] |
|
|
Actions for the taking away, detention, or conversion of property, goods and chattels.[57] |
|
|
Actions for libel, malicious prosecution and arrest, seduction, and criminal conversation. |
|
|
Actions for all other causes which would have been brought in the form of action called trespass on the case.[58] |
|
|
20 yrs |
Actions for rent upon an indenture of demise. |
|
Actions upon any bond or other specialty or recognizance.[59] |
|
|
Actions upon any statute staple or statute merchant.[60] |
|
|
Actions upon any judgment. |
|
1.14
All of these limitation
periods ran from the date of the cause of action, with the exceptions of
actions for words, which ran from the date of the words spoken, and actions
upon a judgment, which ran from the date of the judgment.
1.15
The 1853 Act also
regulated the postponement of limitation periods,[61]
and the effect of acknowledgements and part-payments on actions on account of
specialty, upon a judgment, or upon a statute or recognizance[62]
and liabilities on simple contract.[63]
It did not deal with actions to recover land or money charged on land, or
actions for trespass to land, which were dealt with by the Real Property Limitation
Acts 1833 to 1874. Among the primary differences between these enactments
was that whereas the 1853 Act barred the remedy but left the right intact, the
1833 and 1874 Acts barred both the remedy and the right. Moreover, the
limitation periods applicable to land-related actions were substantially
lengthier than those applicable to actions unrelated to land. These
distinctions remain today.
1.16
Until 1540, actions to
recover land were subject to a limitation period that was set by reference to a
fixed date.[64]
Before 1237, this date was the day in 1135 (i.e. the date on which Henry I
died). More recent dates were set in 1237and 1275.[65]
1.17
Fixed limitation
periods were first prescribed for land-related claims under the Act of
Limitation 1540.[66]
Among the limitation periods were:
|
LENGTH |
ACTION |
|
30 years |
Claims based on the possession of the claimant |
|
50 years |
Writs of Mort d’auncestor, Cousinage, Aiel, Writs of Entry or other possessory actions and avowries for rents or services, formedons in remainder and reverter and scire facias on fines. |
|
60 years |
Writ of right. |
1.18
The Limitation Act of
1623[67] reduced the period for writs of formedon
to twenty years, and provided that no person should make entry into any lands
later than twenty years after his right of entry accrued.
1.19
In 1829, the Real
Property Commissioners, reporting to the House of Commons, recommended the
simplification of the limitation periods applicable to land actions, noting
that a 20-year limitation period, being “the limitation which in this country
is generally acted upon”, would “suit the convenience of society”.[68]
A 20-year period was introduced under the Real Property Limitation Act 1833 for actions
relating to land or money charged upon land, subject to some exceptions;[69]
this period was amended with respect to mortgages in 1837[70]
and reduced to 12 years by the Real Property Limitation Act 1874[71]
The 1833 Act did not apply to Ireland, but sections 32 to 36 of the Debtors
(Ireland) Act 1840 (known as “Pigot’s Law”)[72]
were almost identical to those contained in the 1833 Act.[73]
1.20
It was apparent by the
turn of the 20th century that the 1623 Act and its successors no
longer formed a satisfactory basis for limitation law in England. As has
been noted by the Law Reform Commission of New South Wales, those Acts were
“cast in a language explicable only by reference to court procedures, and forms
of landholding, and institutions, which otherwise are rarely of any but
antiquarian interest to the practising lawyer, or to the citizen, of today.”[74]
1.21
The UK Parliament authorised
the Law Revision Committee, chaired by Lord Wright, to consider the reform of
limitations law. The Wright Committee
reported in 1936 that the language of the 1623 Act was “unsatisfactory and
obscure” as it was drafted in terms of old forms of action that had since been
abolished.[75]
The Wright Committee suggested that it might be desirable to adopt a more
flexible system, and to that end it evaluated two options:
i)
The introduction of
judicial discretion to extend a fixed limitation period running from accrual in
appropriate cases, or
ii)
Running a fixed
limitation period from the date on which the plaintiff knows of the existence
of his claim.
1.22
Ultimately, however,
the Committee rejected both of these options, considering that each would
create undue uncertainty.[76]
Instead, it recommended the retention of the traditional approach (i.e. a fixed
limitation period running from accrual). Nevertheless, the Wright Committee’s
consideration of these two options marked the first indication of a trend of
increasing flexibility in limitations law, which
has since marked the general flow of reform of limitations law. The Wright
Committee Report and the ensuing English Limitation Act 1939[77]
paved the way for limitations reform throughout the common law world, over
the next 50 years. The Limitation Act 1939 substantially implemented the
recommendations of the Wright Committee; in fact, it has been suggested that
the reforms introduced by the 1939 Act exceeded the recommendations of that
Committee.[78]
The idea of a fixed limitation period running from accrual, as implemented in
the 1939 Act, formed the basis of limitation law in many common law
jurisdictions, including Ireland, New Zealand, Australia and Canada.
1.23
The Limitation Act
1939 worked simply and was considered a success.[79]
With time, however, it became clear that the traditional approach of a fixed
limitation period running from accrual did not solve all problems and, in
particular, did not address problems such as latent personal injury and latent
damage property. The Act was amended on several occasions as various
difficulties came to light, most notably by the Law Reform (Limitation of
Actions &c.) Act 1954[80]
the Limitation Act 1963[81] and
the Limitation Act 1975[82],
which respectively implemented the recommendations made in the reports of
the Tucker Committee (1949), Edmund Davies Committee (1962) and Orr Committee
(1974). These Acts were consolidated by the Limitation Act 1980, which now regulates
the law of limitation in England and Wales. A new wave of limitation
reform has recently been recommended by the Law Commission of England and
Wales, but these recommendations have not yet been implemented.
1.24
The Commission
considers that in addition to the history of limitations law, guidance as to
the appropriate approach to be adopted for the future in this area may be found
in the judgments of the Irish Courts as to the constitutionality of various
limitation periods over the past 50 years.
1.25
It must be borne in
mind that statutory limitation periods have the potential to extinguish even
the strongest of claims.[83]
Any legislation devising limitation rules must, therefore, strike a balance
between the competing interests involved.[84]
The Commission had previously recognised, and maintains the view, that the
following three key interests must be considered:[85]
a.
The plaintiff’s
Interests and rights;
b.
The defendant’s
Interests and rights; and
c.
The public interest.
1.26
In brief, a limitation
period should support the plaintiff’s right of access to the courts prescribed
by the Constitution, while encouraging plaintiffs to make claims without undue
delay, and thereby protect defendants from the unjust pursuit of stale claims.[86]
It must be accepted that it is difficult to do complete justice to all of
these interests. That said, it must be the aim of all limitations
legislation to strike a fair balance between the interests involved, and to
avoid doing injustice to any party.
1.27
Article 15.4 of the
Constitution prohibits the Oireachtas from enacting laws that are repugnant to
the provisions of the Constitution. In O'Brien v Manufacturing
Engineering Co. Ltd,
Walsh J. noted as follows:
“Rights
conferred by the Constitution, or rights guaranteed by the Constitution, are of
little value unless there is adequate opportunity for availing of them; any
legislation which would create such a situation must necessarily be invalid, as
would any legislation which would authorise the creation of such a situation.”[87]
1.28
It follows that limitation
periods must provide litigants with adequate opportunity to avail of the rights
protected under the Constitution. The following discussion seeks to
illustrate how the Courts have balanced the competing constitutional rights of
litigants.
1.29
The right of
access to the courts is an unenumerated personal right guaranteed by Article
40.3.1° of the Constitution.[88]
As such, it is one of the fundamental rights of Irish citizens,[89]
which the State is obliged to respect, vindicate and defend.[90]
The Courts have recognised that the right to litigate is “a necessary
inference” from Article 34.3.1° of the Constitution, which establishes the full
original jurisdiction of the High Court, and that its existence is confirmed by
the procedure outlined in Article 40.4 for challenging unlawful detention.[91]
Furthermore, the right to litigate is the means through which the personal
rights protected by the Constitution may be asserted and enforced.[92]
1.30
At its broadest, the
right of access to the courts may be expressed as the right to litigate.[93]
This entitles an aggrieved person who has a legitimate civil claim against
another to pursue his claim in the courts.[94]
It has also been described as a right to bring proceedings,[95]
“the right to litigate claims”,[96]
or “to have recourse to the Courts for the purpose of having determined any
justiciable controversies between a citizen and the State”.[97]
Also incorporated are the rights “to have recourse to the High Court to defend
and vindicate a legal right”,[98]
and “to question the validity of any law having regard to the provisions of the
Constitution”.[99]
The right to litigate applies to “every individual, be he a citizen or not”.[100] The Constitution Review Group in
1996 expressed the objective of the right of access as being “to
ensure that these minimum standards of legality and fair procedures are not
otherwise jeopardised.”[101]
1.31
The Supreme Court has
held that in order for a time-limit to be sufficiently wide as to ensure
sufficient access to the courts, consideration must be given to all the
circumstances of the case including language difficulties, difficulties with
regard to legal advice or otherwise.[102]
In addition, plaintiffs must be given a reasonable length of time within which
to ascertain whether or not they have a right of action, and to institute that
action.[103]
1.32
It is noteworthy that
the right to litigate has also been recognised as a property right, which must
be vindicated under Article 40.3.2° of the Constitution.[104]
In O'Brien v Keogh[105]
the parties conceded that this was the case and Ó Dálaigh CJ expressly
stated that counsel on behalf of the Attorney General was correct to concede on
this point and went on to find a provision of the Statute[106] to
be repugnant to Article 40.3.2°. In Moynihan v Greensmyth,[107]
doubts were expressed by the Supreme Court as to the correctness of the concession
made by Ó Dálaigh CJ, and it was suggested that the matter should be reviewed
in an appropriate case. In Cahill v Sutton,[108]
however, Finlay P. in the High Court felt obliged to proceed upon the
assumption, accepted by Ó Dálaigh CJ in O’Brien v Keogh,[109] and in Ó
Domhnaill v Merrick, McCarthy J (in the Supreme Court) also referred to
the decision in O’Brien v Keogh.[110] Furthermore, in Brady v
Donegal County Council, the plaintiffs argued that the right to challenge
the validity of decisions of the respondent Council was a property right within
the meaning of Article 40.3.2°. The Attorney General (who was the second
named respondent in that case) did not contest that the plaintiffs’ claim was a
property right; rather, his case was that there had been no unjust attack.[111]
1.33
In KM v HM,[112]
the Supreme Court of Canada assessed the underlying rationales of limitation
law from the perspective of fairness to the defendant. LaForest J.
distinguished the following three rationales:
(a) The certainty rationale.
Statutes of limitation have long been said to be statutes of repose.
There comes a time when a defendant should be secure in his reasonable
expectation that he will not be held to account for incidents that occurred
many years previously.
(b) The evidence rationale. It is not
desirable to litigate claims that are based on stale evidence. Once the
limitation period has lapsed, the potential defendant should no longer be
concerned about the preservation of evidence relevant to the claim.
(c) The diligence rationale. Plaintiffs
should act diligently and not sleep on their rights.[113]
1.34
The Commission
considers this to be an instructive statement of the law. It also
considers that the constitutional rights to a fair trial and to the private
ownership of property are factors to be weighed in the balance when considering
the law of limitation.
1.35
Limitation periods
are derived from the principle that “[w]hile justice delayed may not always be
justice denied, it usually means justice diminished”.[114]
It is beyond doubt that defendants have a right to a speedy trial; indeed, the
right has been traced remotely from the Assize of Clarendon (1166), but more directly from Magna
Carta (1215).[115] The right to a speedy trial is a facet of the
constitutional right to fair procedures and is protected under Article 38.1 of
the Constitution; it is a right that “cannot be defeated by the operation of a
particular limitation period.”[116]
It is well established that a long delay between the
events alleged and the trial of an action may strip defendants of their
Constitutional right to a fair trial. Stale claims create a risk of
injustice to defendants. As has been noted by the English Court of Appeal,
the delay of justice is a denial of justice[117]
or, in other words, the chances of being able to find out what really happened
are progressively reduced as time goes on, and this “puts justice to the
hazard.”[118]
1.36
A delay in the
commencement of proceeding may equate to a failure to notify the defendant
within a reasonable time of the claim made against him.[119]
When faced with a claim, a defendant is entitled to be provided with
particulars of the wrong alleged, the full nature and extent of the injury and
loss claimed, and the contention alleged between those two factors. This
information is required so that the defendant can assess the extent of the
damages that may be awarded against him.[120]
If the defendant is given insufficient notice of the claim against
him, or where notice is given some significant period of time after the events
giving rise to the claim, it may be more difficult to carry out sufficient
enquiries to enable the defendant to present a full defence. Conversely, where
a defendant is given an early opportunity to know with some precision the case
being made against them, any delay thereafter is less likely to cause serious
prejudice.[121]
1.37
The delay may also give rise to “fading
memories, unavailability of witnesses, through death or for other reasons, the
destruction of evidence or changes in circumstances”.[122] The loss or deterioration of
evidence is a particular problem for defendants who are providers of goods or
services as they will often find it difficult to identify which transactions
will give rise to a cause of action.[123]
Further, the scene of the accident may have changed, medical and other evidence
may have lost sharpness or reality, and money values may have changed out of
all recognition.[124]
These factors may prejudice the ability of a defendant to contest the
plaintiff’s claim.[125]
It may then be unfair to expect the potential defendant to meet the claim.[126]
1.38
In Ó Domhnaill v
Merrick, the Supreme Court considered that it would be “contrary to natural
justice and an abuse of the process of the court” to require a defendant to
meet a claim in respect of an accident that had occurred some 24 years earlier.[127] Here, the plaintiff’s delay was
found to be inordinate and inexcusable, and the Court found that no
countervailing circumstances existed that would swing the balance of justice in
his favour. The Court ruled that in such cases, “it puts justice to the hazard
to such an extent that it would be an abrogation of basic fairness to allow the case to proceed to trial”, as a
trial “would be apt to give an unjust or wrong result, in terms of the issue of liability or the issue of damages, or both”.[128]
1.39
In O'Keeffe v
Commissioners of Public Works,
the plaintiff sought damages in respect of an accident that had occurred
almost 23 years previously. Henchy J. in the Supreme Court ruled that:-
“A hearing in those circumstances would be a parody of justice, for it
would come at a time when the defendants, through no fault of theirs, had been
deprived of any true opportunity of meeting the plaintiff’s case.”[129]
1.40
The effects of delay on
the fairness of civil trials was given by Hardiman J. in his judgment in J.
O'C. v The Director of Public Prosecutions,[130]
which may be summarised as follows:-
(a) A
lengthy lapse of time between an event giving rise to litigation and a trial
creates a risk of injustice;
(b) The lapse of time
may be so great as to deprive the defendant of his capacity to be effectively
heard;
(c) Such lapse
of time may be so great as it would be contrary to natural justice and an abuse
of the process of the court if the defendant had to face a trial in which he or
she would have to try to defeat an allegation of negligence on her part in an
accident that would have taken place 24 years before the trial;
(d) A long lapse of
time will necessarily create inequity or injustice, and amount to an absolute
and obvious injustice or even a parody of justice;
(e) The foregoing
principles apply with particular force where disputed facts will have to be
ascertained from oral testimony of witnesses recounting what they then recall
of events which happened in the past, as opposed to cases where there are legal
issues only, or at least a high level of documentation or physical evidence,
qualifying the need to rely on oral testimony.[131]
1.41
Closely linked to the
defendant’s right to a fair trial is the right “to have some peace of mind and
to regard the incident as closed” which applies both to institutions and to
individual defendants.[132]
Limitation periods must be designed, therefore, to promote “a certainty
of finality in potential claims.”[133]
In the absence of limitation periods, defendants would be subject to
open-ended threats of liability. The finality of claims enables a person
to feel confident, after a certain period of time, that a potential dispute
cannot then arise.[134]
Potential defendants then gain the freedom to arrange their domestic,
commercial or professional affairs, unhindered by “unknown or unexpected
liabilities.”[135]
It is for this reason that the statutes of limitation are also known as
“statutes of repose”.[136]
1.42
The private ownership
of property is a fundamental right guaranteed by Article 43 of the
Constitution. Article 43.1.1° states that this right is a “natural right,
antecedent to positive law”. Article 43.1.2° provides that “[t]he State
accordingly guarantees to pass no law attempting to abolish the right of private
ownership or the general right to transfer, bequeath, and inherit
property.” One of the objects of the Statute of Limitations 1957 is
“to help people to establish title to land”.[137]
It was felt that “it is most desirable that title to [land] may be established
after clear possession for a reasonable period.”[138]
1.43
The imposition of
limitation periods on property or land-related actions necessarily interferes
with the constitutionally-protected right to property. Indeed, the
limitation of land-related actions under the Statute of Limitations 1957 has
particularly grave implications, as the expiry of the 12-year limitation period
leads to the extinction of title to the land. Limitation periods in
respect of other actions (i.e. tort, contract etc) merely bar the right to take
an action. The rationale behind the doctrine of adverse possession, which
underlies the extinction of title, is that land should be marketable, and that
legal title should reflect possession.[139]
1.44
Owing to the grave
consequences of the expiry of the limitation period for land-related actions,
factors “over and above” those generally considered in relation to limitation
periods must be present in order to justify the limitation period imposed in
relation to land-related actions.[140]
The High Court has accepted that a cause of action in common law for damages
for personal injury caused by negligence is a property right and is covered by
the provisions of Article 40.3.2°.[141]
The Supreme Court recognised in Tuohy v
Courtney a
“constitutional right of a defendant in his property to be protected against
unjust or burdensome claims”.[142]
The Supreme Court has also held that if a legislative provision provides for a
limitation period “of unreasonably short duration”, it may be in breach of
Article 40.3.2°.[143]
1.45
The Supreme Court has
recognised that there is a public interest or “requirement of the common good”
in the avoidance of stale or delayed claims.[144]
Limitation periods discourage plaintiffs from sitting on their rights and from
delaying unreasonably in instituting proceedings.[145]
This ensures that the judicial system is not burdened with old claims and
disputes that could reasonably have been sorted out earlier.[146]
Limitations periods, therefore, promote efficiency within the courts system.
1.46
The public interest was
expressed by Peart J. in Byrne v Minister for Defence as follows:
“[…] a
public interest, which is independent of the parties, in not permitting claims
which have not been brought in a timely fashion, to take up valuable and
important time of the courts and thereby reduce the availability of that much
used and need resource to plaintiffs and defendants who have acted promptly in
their litigation, as well as increase the cost to the Courts Service and
through that body to taxpayers, of providing a service of access to the courts
which serves best the public interest.”[147]
1.47
Peart J. held, however,
that while the Statute of Limitations has the capacity to protect the
right of the defendant to an expeditious hearing and to finality, and the
defendant’s right not to be adversely prejudiced in his defence by delay for
which he bears no responsibility, the Statute “serves no purpose in the
protection of the public interest” outlined above.[148]
1.48
There is, arguably, a
clear public interest in achieving justice in judicial decision-making.
Limitation periods promote the expeditious trial of civil actions.
Where a trial is conducted as quickly as possible and as close in point of time
to the events upon which they are based, witnesses’ recollections are still
clear, and their oral evidence will be more precise. The court should
therefore have before it the relevant material upon which it can make its
decision, i.e. accurate oral evidence and complete documentary proof; this
provides a major contribution to the “correctness and justice of the decision”.[149]
1.49
The avoidance of
unnecessary costs and wasteful appeals procedures also falls within the public
interest.[150]
It must also be considered that it is in the public interest that a balance be
struck between the need to discourage delay in seeking redress, and the
consideration that no encouragement should be given to precipitate
legislation. As was noted by the House of Lords in Cartledge v E
Jopling & Sons Ltd, it is undesirable that workmen to be encouraged to
keep their eyes on the courts.[151]
1.50
It is interesting to
note that the New Zealand Law Commission has observed that where a balance is
achieved between the interests of the defendant and those of the plaintiff,
“then the public interest will usually be found to have been taken care of.”[152]
1.51
Economics are a further
relevant consideration when assessing the various aspects of limitation,
especially from the point of view of insurance. It is arguable that if
the finality of potential claims was not ensured by limitation periods, the
burden of insuring against and defending unlimited claims would result in
higher costs of insurance premiums, which would affect all members of society.[153] In Ó Domhnaill v Merrick,
Henchy J. noted that “[a]part from the personal
unfairness that such a trial would thrust on the defendant”, to allow a
trial to proceed 24 years after the alleged accident would be “unfair for being
incompatible with the contingencies which insurers of motor vehicles could
reasonably be expected to provide against.”[154]
1.52
The Law Reform
Commission of Western Australia has also noted that the community’s interests
are served by ensuring that disputes are not dragged on interminably, and by
ensuring that litigation is not delayed by many years.[155]
Similarly, the New Zealand Law Commission has noted that there is a public
interest in protecting defendants from stale claims, as the passage of time may
make trials slower and therefore more expensive to the state as the provider of
a dispute resolution mechanism. That Commission further noted that “[t]he
adverse economic effect on defendants of having potential claims lying round too
long can harm the health of the commercial sector generally.”[156]
1.53
A useful précis of the
weight that may be accorded to the public interest when assessing the
constitutionality of limitation periods was provided by Costello J. in Brady
v Donegal County Council,
as follows:-
“The public interest in (a) the establishment at an early date of
certainty in the development decisions of planning authorities and (b) the
avoidance of unnecessary costs and wasteful appeals procedures is obviously a
real one and could well justify the imposition of stringent time limits for the
institution of court proceedings.”[157]
1.54
Increasingly, short
time-limits are being prescribed by legislation within which judicial review
proceedings in respect of particular decisions and/or decision-makers must be
commenced.[158]
Such short time-limits have generally been introduced where the need for
finality and certainty is considered to be particularly strong.[159] Guidance as to the balancing of the interests
involved in the limitation of actions may be gleaned from a series of cases
decided by the Irish courts with respect to the constitutionality of those
short time-limits.
1.55
Short time limits for
challenging the validity of planning decisions by way of judicial review have
become a general feature of planning legislation. The Supreme Court has
interpreted the purpose of these time limits as follows:-
"[I]t is clear that the intention of the legislature was greatly to
confine the opportunity of persons to impugn by way of judicial review
decisions made by the planning authorities and in particular one must assume
that it was intended that a person who has obtained a planning permission
should, at a very short interval after the date of such decision, in the
absence of a judicial review, be entirely legally protected against subsequent
challenge to the decision that was made and therefore presumably left in a
position to act with safety upon the basis of that decision."[160]
1.56
It is instructive to
consider the approach taken by the Courts as to the constitutionality of the
time limits imposed in planning legislation. In brief, a two-month time
limit was introduced in 1976 under section 82 of the Local Government
(Planning and Development) Act 1963 That
time-limit was found to be unconstitutional by the High Court in 1989 in
the absence of a “saver” allowing for the extension of the period, but that
finding was not endorsed in the Supreme Court. Section 82, as amended,
was found to be unconstitutional by the Supreme Court in 2004. Under the Planning
and Development Act 2000, a new, eight-week time-limit supplemented by a
“saver” was introduced.
1.57
Prior to the 1976, the
position was that a challenge to the validity of a planning decision could be
brought by way of application for certiorari within six months and by
way of an application for declaratory relief within six years after the
decision had been made. The position changed in 1976 when section 82(3A) of the
Local Government (Planning and Development) Act 1963 was introduced.[161] Under section 82(3A), challenges to the
validity of planning decisions had to be made within two months of the decision
being “given”. No ‘saver’ was provided allowing for the extension of the
time-limit.
1.58
The constitutionality
of section 82(3A) was first considered in Brady v Donegal County Council.[162] The approach taken by the High Court in
that case is instructive in terms of the principles guiding the assessment of
limitation periods. Costello J. acknowledged that the Oireachtas is
required to strike a balance between competing interests, as follows:-
“Sometimes the interests which compete are, on the one hand, some
requirement of the common good and, on the other, the interests of holders of
some constitutionally entrenched right (of which the Planning Acts themselves
afford a ready example, involving as they do a balance between the protection
of the environment and the rights of the owners of private property). Sometimes
the competing interests may be those of two different classes of individuals
(as, for example, the interests of prospective plaintiffs in the enactment of
legal claims which the Statute of Limitations Act 1957 sought to
reconcile with the interests of prospective defendants in being protected from
stale claims).”[163]
1.59
Costello J. noted that
a new system had been introduced in 1976 under which objectors had 21 days in
which to appeal to An Bórd Pleanála against a decision of a planning authority.[164] In that context, he considered that
section 82(3A) was inserted for the following purposes:-
(i)
To ensure in the
national interest that uncertainty about development applications should be
dispelled at the earliest possible date, and
(ii) To make applicants for permission
and planning authorities aware at an early date that a permission decision was
being challenged in legal proceedings so as to enable applications for
adjournments of planning appeals to be made and so avoid unnecessary costs and
unnecessary waste of the time of public officials.[165]
1.60
Thus, the Oireachtas
was not seeking to to strike a balance between the rights of property owners
and adjoining property owners; rather, it was balancing the public interest in
the application of the planning code with the right of members of the public to
challenge the decisions of planning authorities.
1.61
Costello J. found the
remarks expressed by Henchy J. in Cahill v Sutton[166]
about the constitutional validity of the then three year limitation period to
be “of considerable relevance.” Costello J. explained the relevance of
those views as follows:-
“The Supreme
Court drew attention to the justice in providing in a Limitation Act a
saver in favour of plaintiffs whose ignorance of their cause of action was not
attributable to any fault of theirs. A fortiorari, a limitation period
which contains no saver of plaintiffs whose ignorance of their cause of action
is attributable to the defendants wrong-doing would appear to be unjust and,
very likely, unconstitutional.”[167]
1.62
Following the example
set by Finlay CJ in Cahill v Sutton,[168]
Costello J. proposed to assess the reasonableness of section 82(3A) by
reference to:-
“(a) ... whether the plaintiffs have shown (and the onus is on them)
that the two-month limitation period is unreasonable having regard to the
competing interest which the Oireachtas was required to reconcile, and in
particular,
(b) whether the absence of a saver clause in the legislation which would
enable the court to lift the two-month bar in favour of a plaintiff whose
ignorance of a cause of action within the two month period was caused or
contributed to by the defendant is unreasonable thus rendering the section
constitutionally invalid.”[169]
1.63
Costello J. noted that
where a very short time-limit is imposed, “considerable hardship” may be caused
to a plaintiff who is deprived of a judicial remedy before he knew he had a
cause of action. He noted that where the defendant’s wrong-doing causes
the plaintiff’s ignorance of his rights during the short limitation period,
there would have to be “very compelling reasons indeed” to justify such a
rigorous limitation on the exercise of a constitutionally protected right.[170] He noted that the public interest must
be a factor to be weighed in the balance and proceeded to balance the
respective interests as follows:-
“Certainly the public interest would not be quite as well served by a
law with the suggested saver as by the present law, but the loss of the public
interest by the proposed modification would be slight while the gain in the
protection of the plaintiff's constitutionally protected rights would be very
considerable.” [171]
1.64
He therefore concluded
in respect of section 82(3A) that “being unreasonable it is unconstitutional”.[172] Giving something of a warning, he
held:-
“Had attention been paid to what the Supreme Court [in Cahill v Sutton]
said about the 1957 Limitation Act and steps taken to amend it I am sure that
other statutes containing limitation periods such as the one I am considering
would have been looked at also and their defects remedied.”[173]
1.65
The respondents
appealed to the Supreme Court, which allowed an appeal from the High Court’s
ruling on constitutionality, and remitted the entire action for retrial by the
High Court, ordering that the issues of fact should be tried before the
constitutional issue. The Supreme Court noted that if the plaintiffs’ case
transpired not to be exceptional, following the trial and a decision on an
issue of fact, the plaintiffs would not have locus
standi to challenge the validity of
section 82(3A).
1.66
Section 50 of the Planning
and Development Act 2000, as amended,[174]
was drafted in the light of growing criticism of section 82(3A) of the Local
Government (Planning and Development) Act 1963. An eight-week time
period now applies to the bringing of judicial review proceedings in respect of
planning decisions, commencing on the date of the decision of the planning
authority.[175]
In order to comply with the time-limit, it is sufficient that the proceedings
be issued and served on all of the statutory parties within the prescribed
period; it is not necessary for the leave application to have been moved before
the High Court, or even listed for hearing.[176]
In addition, the Courts must be satisfied that the applicant for judicial
review has a “substantial interest” in the matter that is the subject of the
judicial review application.[177]
1.67
Section 50(4) was discussed
by the Supreme Court in Harding v Cork County Council.[178]
Kearns J. held that the introduction of that section has significantly
heightened the bar for objectors or aggrieved persons who now seek to bring
judicial review proceedings. He continued as follows:-
“These are onerous conditions which can only be seen as restricting in a
significant way the citizen’s right of access to the court. Perhaps it would be
more accurate to say that the citizen’s entitlement to a judicial remedy is
significantly circumscribed by the Act of 2000. Access to court per se
is not denied, but an applicant has numerous hurdles to clear before obtaining
leave.”[179]
1.68
Kearns J. was of the
view that section 50 was intended “to restrict the entitlement to bring court
proceedings to challenge decisions of planning authorities”, and he noted that
there is “an obvious public policy consideration” driving this “restrictive”
provision, which he expressed as follows:-
“Where court proceedings are permitted to be brought, they may have
amongst their outcomes not merely the quashing or upholding of decisions of
planning authorities but also the undesirable consequences of expense and delay
for all concerned in the development project as the court process works its way
to resolution. The [Planning and Development Act 2000] may thus be seen
as expressly underscoring the public and community interest in having duly
authorised development projects completed as expeditiously as possible.”
1.69
The eight-week
limitation period set by section 50 is not absolute: the High Court may extend
time, but only if the Court is satisfied that:-
(a) there is good and sufficient reason for doing so, and
(b) the
circumstances that resulted in the failure to make the application for leave
within the period do provided were outside the control of the applicant for the
extension.[180]
1.70
The ability of the High Court to
extend time under section 50 remedies the defect in section 82 of the Local
Government (Planning and Development) Act 1963. In Kelly v Leitrim
County Council,
Clarke J. remarked as follows respect to section 50:-
“The period involved, being one of eight weeks, while short is not
unduly harsh. This is so, in particular, in cases where it is likely, as here,
that an applicant will already have the benefit of expert professional advice
prior to the commencement of the time running by the employment of appropriate
professionals in the planning process which led to the decision sought to be
challenged.”[181]
1.71
The Courts have adopted
a particularly strict view with respect to the time-limit imposed by section
50. In Casey v An Bord Pleanála, the applicant was outside the eight-week period
by some 17 hours, which it was submitted was a simple
computational error in calculating 8 weeks which previously was two months.
Murphy J. refused to grant an extension of time, stating as follows:-
“[I]t would seem to go against the statutory
provisions and precedents in relation to judicial review in planning matters to
allow an applicant to circumvent them by allowing
further time to substantiate grounds unless there are good and sufficient
reasons to do so. It does not appear to the Court that the reasons given for
non involvement and for delay amount to sufficient reasons for the Court to
extend time.”[182]
1.72
In Kelly v Leitrim
County Council, Clarke J. refused to extend time owing to a delay of 19
days in issuing and serving the proceedings; he considered that 19 days was
significant in relation to a period of eight weeks, having regard to the
necessity to bring finality to all planning matters. He summarised his
position as follows:-
“[T]here is … a clear legislative policy … which requires that,
irrespective of the involvement of the rights of third parties, determinations
of particular types should be rendered within a short period of time as part of
an overall process of conferring certainty on certain categories of
administrative or quasi judicial decisions. Therefore while it may well
be legitimate to take into account the fact that no third party rights are
involved that should not be regarded as conferring a wide or extensive
jurisdiction to extend time in cases where no such rights may be
affected. The overall integrity of the processes concerned is, in itself,
a factor to be taken into account.”
1.73
In Openneer v
Donegal County Council ,[183] Macken J. accepted that the time limit
set out in section 50 is “a very strict time limit, which, save for exceptional
circumstances, operates as a type of guillotine” but she noted that “the
wording of s. 50 requires only that there be "good and sufficient"
reasons, not necessarily exceptional circumstances”. That notwithstanding, she
refused to grant an extension of time, noting thus:-
“It is very understandable why such time limits
are imposed by the legislation. Planning matters are of their very nature, when
they include a right in third parties to make submissions, such as in the
planning regime, such that those securing permission may wish to rely on the
rights granted, as soon as possible after the expiry of a statutory period
within which a challenge might have been made but was not, in the certain
belief that the right "final". It is one of the very reasons why the
challenge must be made within the time limit provided for, as otherwise the
party with the right vesting in him arising from the permission granted might
be in limbo for an inordinate period of time, and the permission would lack
legal certainty.”[184]
1.74
Although repealed by
the Planning and Development Act 2000, [185] the provisions of the Local Government
(Planning and Development) Acts 1963 to 1999 continue to apply with respect
to planning decisions that were received by the planning authority or An Bord
Pleanála before the repeal of those Acts.[186]
In that context, the constitutionality of section 82(3B) of the 1963 Act, as
amended, was considered by the Supreme Court in 2004.[187]
Section 82 was amended in 1992 but the time-limit remained the same and no
“saver” was introduced.[188]
1.75
In White v Dublin
City Council,
Denham J. noted that more lengthy limitation periods are laid down for civil
actions between private persons or bodies but that there are “obvious
distinctions” between such common law actions and judicial review proceedings.[189] She stressed that the “imperative
of certainty in administrative decisions” must be weighed against the “equally
important” right to litigate.[190]
She cited section 50 of the Planning and Development Act 2000 as “a
useful and relevant indicator of what may be considered fair and just in such
an enactment.”[191]
She noted that it is “not necessarily unconstitutional” for a limitation period
to be absolute where the wrong was not reasonably discoverable within the
longer time allowed but she noted that anxiety, worry and cost for the
defendant are “important elements in those cases”.[192]
1.76
Denham J. ultimately
found the absolute two-month time-limit under section 82(3B) to be repugnant to
the right of access to the courts under Article 40.3 of the Constitution, given
that that the applicants were “deprived of any genuine opportunity to challenge
the legality of the decision within the permitted time.”[193]
She ruled that in exercising its discretion to exclude any power to extend time
for cases such as the present, the legislature undermined or compromised a
substantive right guaranteed by the Constitution.[194]
She added obiter that the Oireachtas might be entitled to fix an
absolute limitation period of a short duration where persons to whom it applied
would in fact have a full opportunity to bring proceedings within that time
limit.[195]
1.77
After the Supreme Court
decision in White, the High Court in Jerry Beades Construction Ltd v
Dublin Corporation[196] was obliged to fall back on the Rules
of the Superior Courts 1986, in the absence of a statutory time-limit.
McKechnie J. assessed whether the applicant had acted “promptly”, in accordance
with Order 84, rule 21 of the Rules of the Superior Courts 1986.
1.78
An even shorter time-limit applies to the
commencement of judicial review proceedings in respect of certain decisions of
the Refugee Applications Commissioner, the Refugee Appeals Tribunal and the
Minister for Justice, Equality and Law Reform during the refugee determination
process and the deportation process.[197] In such cases, a leave
application must be made, in accordance with section 5(2)(a) of the Illegal
Immigrants (Trafficking) Act 2000, within the following
limits:-
“[…] within the period of 14 days commencing on the date on which the
person was notified of the decision, determination, recommendation, refusal or
making of the Order concerned unless the High Court considers that there is
good and sufficient reason for extending the period within which the
application shall be made”.
1.79
This formulation is
similar to that contained in section 50 of the Planning and Development Act
2000, but the time-limit is much shorter. Moreover, the
14-day limit applies from the date on which the applicant is notified of the
specific decision or action that he or she seeks to challenge. Like
section 50, it contains a “saver” allowed for the extension of the limitation
period. It might be surmised that this “saver” was enacted to ensure the
constitutionality of the provision in the light of the warning given by
Costello J. in Brady v Donegal County Council.[198]
1.80
Section 5
(and section 10) of what became the Act of 2000 was referred to the Supreme
Court by the President pursuant to Art. 26.2.1° of the Constitution for a
ruling as to its constitutionality. In In re Article 26 and the Illegal
Immigrants (Trafficking) Bill 1999[199]
it was argued that while there was an express provision allowing for an
extension of time, this was not sufficient to compensate for the restriction
imposed by the 14-day time-limit on the constitutional right of access to the
courts. The Supreme Court acknowledged that asylum seekers face special
problems that may make it particularly difficult for them to seek judicial
review of decisions affecting them but the Court was nevertheless satisfied
that the discretion afforded to the courts to extend time was sufficiently wide
to enable persons who experience language difficulties, communication
difficulties, difficulties with regard to legal advice or otherwise, to have
sufficient access to the courts.[200]
The Supreme Court observed that the objectives of the limitation period, as
inferred from the provisions of the Bill, were based on the need for the
expeditious determination of such applications:-
“There is a well established public policy objective that administrative
decisions, particularly those taken pursuant to detailed procedures laid down
by law, should be capable of being applied or implemented with certainty at as
early a date as possible and that any issue as to their validity should
accordingly be determined as soon as possible.”[201]
1.81
The Supreme Court was
also satisfied that:-
“[…] the early establishment of the certainty of the decisions in
question is necessary in the interests of the proper management and treatment
of persons seeking asylum or refugee status in this country. The early
implementation of decisions duly and properly taken would facilitate the better
and proper administration of the system governing seekers of asylum for both
those who are ultimately successful and ultimately unsuccessful.”[202]
1.82
The Supreme Court
reiterated in S v Minister for Justice, Equality and Law Reform that the stringent 14-day time limit
is balanced by the courts’ discretion to extend time where there is good and
sufficient reason to do so.[203]
1.83
Order 84A of the Rules
of the Superior Courts 1986 was inserted by the Rules of the Superior
Courts (No. 4) (Review of the Award of Public Contracts) 1998,[204] and provides as follows:
"An application for the review of a decision to award or the award
of a public contract shall be made at the earliest opportunity and in any event
within three months from the date when grounds for the application first arose
unless the Court considers that there is good reason for extending such
period."
1.84
As has been noted by
the Supreme Court,[205]
the time constraints in Order 84A reflect the objectives in law and policy of
the European Union under a series of Council
Directives relating to the review of public contract award
procedures. The High Court has remarked that the discretion to extend the
shortened time limits under provisions such as Order 84A was “doubtless” to
meet constitutional concerns such as those addressed in Brady v Donegal
County Council and other cases in which constitutional challenges were
brought to such short time limits.[206]
1.85
Under Order 84, rule 21
of the Rules of the Superior Courts 1986, an application for leave to
apply for judicial review must be made as follows:-
“[…] promptly and in any event within three months from the date when
grounds for the application first arose, or six months where the relief sought
is certiorari, unless the Court considers that there is good reason for
extending the period within which the application shall be made.”[207]
1.86
Thus, the
Courts can refuse to grant leave to seek judicial review even where the
applicant has moved first within the outer limit of three or six months, if
satisfied that in any event the applicant failed to move
"promptly". It has been suggested that this reflects the pre-1986 onus on applicants
to move “with dispatch”.[208] The rule does not operate in the same way as a
limitation period, although it does impose “a preliminary obligation to proceed
with dispatch”.[209]
1.87
It is noteworthy that
in Marshall v Arklow Town Council,[210]
Peart J. held that if proceedings are commenced
within the eight week period provided for under section 50 of the Planning
and Development Act 2000, as amended, the Court cannot refuse leave because
it considers that the applicant did not moved promptly within the eight weeks
allowed. Although he acknowledged that the three and six month time
limits set out in Order 84, rule 21 are outer limits only, he found that
different considerations arise where the applicant is mandated to bring an
application within eight weeks:-
“It must be presumed that the legislature was aware of
the provisions of O. 84, r. 21(1) and decided that in planning matters there
was a need to ensure that applications were commenced within a shorter time
than either three or six months, as the case may be, but it cannot be said that
even though an application is brought within that period of eight weeks, the
court could nevertheless refuse leave because it regarded the applicant as not
having moved promptly within the eight week period. That is a distinction, even
though the question of prejudice to the notice parties is still a very relevant
one within the context of any assessment of the delay on the part of an
applicant beyond that eight week period.”[211]
1.88
Under Article 40.3.2°
of the Constitution, the State is expressly obliged to protect the rights of
every citizen from unjust attack, by its laws, and to vindicate such rights “in
the case of injustice done”. This is qualified, however, by the words "as
best it may." The Supreme Court held in Ryan v Attorney
General that
this “implies circumstances in which the State may have to balance its
protection of the right as against other obligations arising from regard for
the common good.”[212]
Thus, the exercise of personal rights is not unlimited[213]
and the curtailment thereof is not per se unconstitutional;[214] the exercise of constitutional rights
may be restricted by the constitutional rights of others, and by the
requirement of the common good.[215]
1.89
The Constitution also
specifically provides for the delimitation of the right to private property.
Article 43.2.1° recognises that in a civil society, the exercise of the right
ought to be regulated by “the principles of social justice”. Article
43.2.2° allows the State to delimit the exercise of the right by law, with a
view to reconciling the exercise of the right with “the exigencies of the
common good”. Clearly, therefore, it is not unconstitutional, per se,
to impose limitation periods on civil actions concerning property rights.
Such limitation periods must, however, be assessed in light of the protection
afforded by the Constitution.
1.90
The weighing of the
relevant considerations has been held by the Supreme Court to be
“quintessentially a matter for the judgement of the legislator”[216] and as such, is “a matter of policy and
discretion”. [217] Nevertheless, the curtailment
of constitutional personal rights is subject to the scrutiny of the Superior
Courts. The Courts may intervene where the balance of rights and interests
achieved by the Oireachtas is oppressive to all or some citizens, or where
there is “no reasonable proportion between the benefit which the legislation
will confer on the citizens or a substantial body of them and the interference
with the personal rights of the citizen.”[218]
1.91
The key consideration
in the courts’ assessment will be reasonableness.[219]
The courts will consider whether the balance of interests achieved is “unduly
restrictive or unreasonable”,[220]
or “unreasonably or unjustly impose hardship”,[221]
and whether it is “supported by just and reasonable policy decisions.”[222] While it is accepted that
all limitation periods will potentially impose some hardship on some
individual, the extent and nature of such hardship must not be “so undue and so
unreasonable” as to make it constitutionally flawed, having regard to the
proper objectives of the relevant legislation.[223]
The reasonableness of limitation periods will be assessed “in the general
circumstances of the ordinary life of this country prevailing at the time when
the enactment comes into force” but the hypothetical situation of a prospective
litigant having no knowledge of a statutory period of limitation is not
relevant to the assessment of the reasonableness of that limitation period. [224]
1.92
It is a well
established principle of statutory interpretation that any legislative
exception to a constitutional provision must be strictly construed, and must
not be availed of except where it was essential to do so.[225]
Limitation periods, which necessarily constrict the constitutional personal
right to litigate, will therefore be strictly construed.
1.93
A useful summation was
provided in Cahill v Sutton,[226]
where Finlay CJ suggested that in the case before him, he should firstly
examine the Statute against the background of the circumstances of the
ordinary life in the country at the time the Statute was enacted, to
discover whether it provided a reasonable or unreasonable time limit, and then
examine it in the light of the balance which the Oireachtas was required to
hold between the rights of prospective plaintiffs and prospective defendants
with a view to seeing whether the limitation period was a reasonable one.[227]
1.94
Ireland signed the
European Convention on Human Rights (“the Convention”) on November 4 1950, and
ratified it on February 25 1953. The European Convention on Human Rights Act
2003 incorporated the Convention into Irish
law. Section 2(1) of the 2003 Act provides that the Irish courts must interpret
and apply any statutory provision or rule of law in a manner compatible with
the State’s obligations under the Convention provisions, “so far as is
possible, subject to the rules of law relating to such interpretation and
application”. This duty applies, pursuant to section 2(2) of the 2003 Act, to
any statutory provision or rule of law in force immediately before the passing
of the 2003 Act or any such provision coming into force since then.
1.95
Since the 2003 Act came
into force on 31 December 2003, reliance may now be placed on Article 6 of the
Convention in domestic proceedings. The position of the Convention
in domestic law was put succinctly by Gilligan J. as follows:-
“The situation with regard to the European Convention on Human Rights is
that Article 6 was brought into force of domestic law by the European
Convention of Human Rights Act, 2003 on 31st December, 2003, which provides for
a fair and public hearing within a reasonable time. The Act of 2003
operates prospectively only from the date of the coming into force of the
European Convention on Human Rights Act, 2003 but I am satisfied, having regard
to the available jurisprudence, that the European Convention of Human Rights is
an extra factor to be added into consideration by this Court but subject to the
application of existing Irish law and jurisprudence.”[228]
1.96
Article 6(1) of the
Convention reads, in the relevant part, as follows:
“In the
determination of his civil rights and obligations or of any criminal charge
against him, everyone is entitled to a fair and public hearing within a
reasonable time by an independent and partial tribunal established by law.”
1.97
Article 6(1) embodies
the “right to a court”. One aspect of this right is a right of access to
the courts, which comprises the right to institute proceedings before a court
in civil matters.[229]
This right seeks “to protect the individual concerned from living too long
under the stress of uncertainty” and “to ensure that justice is administered
without delays which might jeopardise its effectiveness and credibility.”[230]
1.98
It is well accepted
within the jurisprudence of the European Court of Human Rights that the
Convention is “intended to guarantee not rights that are theoretical or
illusory but rights that are practical and effective”.[231]
Article 6(1) therefore implies an effective right of access to the court and
access to the courts must mean access in fact as well as in principle.[232]
1.99
That notwithstanding,
the right of access is not absolute, and it does not prohibit the
imposition of limitation periods per se.[233]
The European Court of Human Rights has acknowledged that limitation periods are
a common feature of the domestic legal systems of the Contracting States.
The Court has stated as follows, acknowledging the merits of limitation
periods:
“They serve
several important purposes, namely to ensure legal certainty and finality,
protect potential defendants from stale claims which might be difficult to
counter and prevent the injustice which might arise if courts were required to
decide upon events which took place in the distant past on the basis of evidence
which might have become unreliable and incomplete because of the passage of
time.”[234]
1.100
The Court has also
acknowledged that the interest of good administration of justice is served by
the imposition of time limits within which prospective proceedings must be
instituted, that time limits may be final, and that there can be no possibility
of instituting proceedings even when new facts arise after the expiry of the time
limit imposed. [235]
1.101
The European Court of
Human Rights has noted a lack of uniformity among the member State of the
Council of Europe as to the length of civil limitation periods and the date from
which those periods run.[236]
It has observed that in many States, the limitation period begins to run from
the date of accrual, whereas in others it runs from the date of
knowledge. The date of knowledge test is not, therefore is commonly
accepted in European States.[237]
The Court has applied a margin of appreciation to the manner in which
Contracting States organise their limitation periods. In one case, the
Court showed deference to the UK system of limitation, noting that the
legislature had devoted a substantial amount of time and study to the
consideration of its limitation law.[238]
1.102
In applying the margin
of appreciation, the European Court of Human Rights has noted that the right of
access is not absolute and may be subject to limitations.[239]
By its very nature, litigation calls for regulation by the state.[240] Limitations on the right of access must
be for a legitimate aim and must not transgress the principle of
proportionality.[241]
There must, therefore, be “a reasonable relationship of proportionality between
the means employed and the aim sought to be achieved.”[242]
Moreover, the Court has held that while restrictions may be placed on the right
of access to the courts by way of limitation period, such restrictions cannot
function but to such a degree as to impair the essence of the right of access.[243] In other words, “the limitations
applied must not restrict or reduce the access left to the individual in such a
way or to such an extent that the very essence of the right is impaired.[244]
1.103
Article 6(1) of the
Convention guarantees that in the determination of his civil rights and
obligations, everyone is entitled to a hearing “within a reasonable time”.[245] The European Court of Human
Rights has stressed that “it is for the State to organise its legal system as
to ensure the reasonably timely determination of legal proceedings”.[246] Thus, Contracting States must
provide mechanisms to ensure that hearings are held within a reasonable
time. It is for the State to decide what mechanisms to adopt - whether by
way of increasing the numbers of judges, or by automatic time-limits and
directions, or by some other method.[247]
The Court has held that if a State lets proceedings continue beyond the
“reasonable time” prescribed by Article 6(1) without doing anything to advance
them, it will be responsible for the resultant delay.[248]
1.104
It is insufficient, for
the purposes of Article 6(1), for a State to place an onus on litigants to
proceed with due expedition. The Court has consistently held that “a
principle of domestic law or practice that the parties to civil proceedings are
required to take the initiative with regard to the progress of the proceedings,
does not dispense the State from complying with the requirement to deal with
cases in a reasonable time”.[249]
With regard to the conduct of the responsible national authorities, the Court
has noted the following:
“[W]hether or not a system allows a party to apply to expedite
proceedings, the courts are not exempted from ensuring that the reasonable time
requirement of Article 6 is complied with, as the duty to administer justice
expeditiously is incumbent in the first place on the relevant authorities”.[250]
1.105
The European Court of
Human Rights has consistently held that the ‘reasonableness’ of the length of
proceedings will be assessed in the light of the circumstances of the case and
having regard to the criteria laid down in its case-law.[251]
1.106
The UK Privy Council
has noted that the threshold of unreasonableness is “a high one, not easily
crossed.”[252]
According to the jurisprudence of the European Court of Human Rights, the case
must be looked at from a procedural, factual and legal point of view.[253] Of particular relevance are the
complexity of the case,[254]
the importance of what is at stake for the applicant in the litigation,[255] and the conduct of the applicant and of
the relevant authorities.[256]
The Court has held that “applicants are entitled to make use of all procedural
steps relevant to them but they should do so with diligence”[257]
and that applicants “must bear the consequences when such procedural
applications result in delay.[258]
An applicant is “required to refrain from using delaying tactics and to avail
himself of the scope afforded by domestic law for shortening the proceedings.
He is under no duty to take action which is not apt for that purpose”.[259]
1.107
The European Court of
Human Rights has held that the duty under Article 6 §1 applies to that
“all stages of legal proceedings” for the determination of civil rights and
obligations.[260]
The Court will take not only into account the length of time involved starting
with the issue of proceedings but also all stages subsequent to judgment
on the merits.[261]
This will include taxation proceedings and bankruptcy proceedings, which as
both seen as a further stage in the substantive proceedings.[262]
The time-limits given for filing documents are not deducted from the total
length of the delay, but are not counted as delay attributable to the
authorities.[263]
The European Court of Human Rights will, however, deduct any periods of time
during which there were no proceedings before the relevant domestic courts.[264]
1.108
Criticism has been
levelled by the European Court of Human Rights in respect of court
management. Following the finding of a violation of Article 6(1) in
respect of the absence of a system of court management in England and Wales,[265] extensive case management procedures
have now been introduced in those jurisdictions.[266]
Steps have also been taken in respect of case management in Ireland, following
the 28th Interim Report of the Committee on Court Practice and
Procedure.[267]
Order 63A of the Rules of the Superior Courts 1986, which came into
force in 2004,[268]
sets out detailed case management procedures for commercial cases. This
Rule is designed to put pressure on parties to expedite proceedings. Case
management procedures have also been introduced in respect of judicial review
proceedings.[269]
1.109
A further area in which
the European Court of Human Rights has found there to be unreasonable delay is
where there is a backlog of cases pending before the Courts. The Court
has found that the fact that such backlog situations have become commonplace
does not justify the consequently excessive length of proceedings.[270] No liability will arise
under Article 6(1) in respect of a temporary backlog of court business so long
as the State takes “appropriate remedial action with the requisite promptness”,
but where a critical backlog situation persists and it becomes clear that the
expedients taken were insufficient to clear the backlog, “the State must take
other, more effective action”.[271]
1.110
In a number of cases,
Ireland has been found to be in violation of Article 6(1) of the Convention
owing to the failure of the State to prevent excessively lengthy legal
proceedings.
1.111
In Doran v Ireland,[272]
the European Court of Human Rights penalised Ireland for its failure to comply
with the ‘reasonable time’ requirement. The applicants had initiated
their domestic claim in July 1991. The taxation certificate was signed by the
Taxing Master of the High Court in December 1999, thereby ending the
proceedings. The proceedings had lasted nearly 8 ½ years. When the
Supreme Court gave judgment on the applicants’ appeal in March 1998, the
proceedings had already been in being for over 6 ½ years. The European
Court of Human Rights ruled that in these circumstances, “particular diligence”
was required of the judicial authorities that were subsequently concerned with
the proceedings to ensure the speedy determination of the outstanding issues
namely, the assessment and apportionment of damages by the High Court and the
applicants’ costs.[273]
1.112
The Court did not
consider the case to be significantly complex from an administrative or factual
point of view and although there was a “legal novelty”, this could not explain
the length of the proceedings.[274]
Considering the conduct of the State, the Court rejected the explanation
proffered by the Irish government that the President of the High Court, who had
begun hearing the case, was held up by his commitments as chair of a domestic
Tribunal.[275]
1.113
Likewise, the State was
found to be in breach of Article 6(1) in the case of McMullen v Ireland.[276]
The applicant’s case had begun some 16 years previously and was still
continuing as a determination on the taxation of costs remained outstanding.
The European Court of Human Rights found that the conduct of the applicant
contributed “in no small part” to the delay in the proceedings.[277] The period of time dedicated to
the applicant’s bankruptcy proceedings concerning was entirely attributable to
the applicant.[278]
The applicant failed to pay the costs established after the issuance of the
taxation certificate.[279]
Nevertheless, the Court ruled that the applicant’s conduct did not, alone,
explain their overall length of the proceedings.[280]
The Court considered the State to be responsible for several periods of delay,
comprising a year between the last date of High Court hearings and the delivery
of the judgment of the High Court; almost two years between the applicant’s
confirmation that all appeal documents had been filed and the first hearing
date for the appeal; and six months for the Supreme Court to re-constitute and
fix a hearing date for the appeal.[281]
1.114
In O'Reilly and Ors
v Ireland,
the State was again found to be in violation of Article 6(1) of the Convention.[282] The applicants had brought
proceedings in 1994 seeking an order of mandamus compelling a local
authority to repair the road on which they lived. The proceedings took
nearly four years and eleven months, ending only in June 1999 with the final
orders of the Supreme Court.[283]
The European Court of Human Rights found that none of the delay was
attributable to the applicants, but that two specific and lengthy delays were
attributable to the domestic authorities, namely one year and four months spent
waiting for the High Court to deliver its judgment, and a material delay of
some three months in the appeal hearing, while the case was adjourned to
accommodate a more urgent case.[284]
As for what was at stake for the applicants, the Court noted that while the
repair works were completed in 1998, the “not insignificant issue” of costs
remained undetermined.[285]
1.115
A further violation of
Article 6(1) was found in Barry v Ireland, which concerned a criminal prosecution.[286] The applicant, then a doctor, was
arrested in 1997 and charged with sexual assault of a former patient. He was
later charged with 237 offences of a sexual nature concerning 43 complainants.[287] He issued judicial review
proceedings seeking to have his prosecution abandoned, and sought
discovery. The prosecution did not proceed until eight years later, in
2005. At the time of the decision of the European Court of Human Rights in
2005, the proceedings in question were not yet completed, and had been in train
for 10 years and 4 months. The Court deemed the date on the first search
of his clinic, home and consulting rooms was carried out (June 2005) was the
date from which the ‘reasonableness’ of proceedings would be assessed.[288] The Court noted that, in 2005,
the applicant was in his 80s and in poor health. He had been denied the
possibility of pursuing his profession, and had for a long period been subject
to “relatively restrictive” bail conditions.[289]
1.116
The European Court of
Human Rights has held that a three-year limitation period for the bringing of
paternity proceedings violated the right to respect for private and family
life, which is protected under Article 8 of the Convention. In Phinikaridou
v Cyprus,
the Court considered an absolute three-year time limit for a child to bring
proceedings for judicial recognition of paternity, running from date on which
he or she reached the age of majority irrespective of his or her awareness of
the parent’s identity. In the case under consideration, the child had
only learned of her father’s identity after the limitation period had expired,
and it was then impossible for her to bring proceedings. The Court found that
the main problem with the application of the inflexible limitation period, to
which there were no exceptions, was its absolute nature rather than its dies
a quo as such.[290]
The Court held as follows:-
“In the Court’s view, a distinction should be made between cases in
which an applicant has no opportunity to obtain knowledge of the facts and,
cases where an applicant knows with certainty or has grounds for assuming who
his or her father is but for reasons unconnected with the law takes no steps to
institute proceedings within the statutory time-limit [citations
omitted].” [291]
1.117
The Court engaged, as
is usual, in the balancing of the interests at stake, and concluded that the
general interests, as well as the competing interests of the presumed father
and his father were accorded greater weight than the applicant’s right to find
out her origins. It found the three year time limit to breach Article 8
on the following basis:-
“The Court ... does not consider that such a radical restriction of the
applicant's right to institute proceedings for the judicial determination of
paternity was proportionate to the legitimate aim pursued. In particular, it
has not been shown how the general interest in protecting legal certainty of
family relationships or the interest of the presumed father and his family
outweighed the applicant's right to have at least one opportunity to seek
judicial determination of paternity.”[292]
1.118
A further provision
that provides guidance as to the State’s obligations when considering the
imposition of limitation periods is Article 13 of the Convention, which
provides:-
“Everyone whose rights and freedoms as set forth in [the] Convention are
violated shall have an effective remedy before a national authority notwithstanding
that the violation has been committed by persons acting in an official
capacity.”
1.119
Article 13 requires
national authorities to provide a domestic remedy to deal with the substance of
an ‘arguable complaint’ under the Convention, and to grant appropriate relief.[293] The national authority with
responsibility under Article 13 does not have to be judicial authority but, in
the case of authorities other than judicial authorities, the European Court of
Human Rights has held that “its powers and the guarantees are relevant in
determining whether the remedy before it is effective.”[294]
1.120
The Court has held that
“[e]ven if a single remedy does not by itself entirely satisfy the requirements
of Article 13, the aggregate of remedies provided for under domestic law
may, in principle, do so.”[295]
The remedy required must be “effective” in practice as well as in law.[296] The ‘effectiveness’ of a remedy
does not depend on the certainty of a favourable outcome for the applicant.[297] A remedy is effective “if
it can be used either to expedite a decision by the courts dealing with the
case, or to provide the litigant with adequate redress for delays that have
already occurred”.[298]
The burden of proving the existence of effective and sufficient remedies lies
upon the State invoking the rule.[299]
1.121
Apart from being
effective, the remedy provided by Contracting States must also be adequate and
accessible.[300]
The European Court of Human Rights has held that “particular attention should
be paid to, inter alia, the speediness of the remedial action itself, it
not being excluded that the adequate nature of the remedy can be undermined by
its excessive duration”.[301]
1.122
The Irish State was
also found to be in violation of Article 13 in the Doran[302] and O’Reilly[303] cases,
discussed above in relation to Article 6 of the Convention.
1.123
Of further relevance to
the imposition of limitation periods is Protocol 1 to the Convention, Article 1
of which governs the rights of every natural and legal person to the peaceful
enjoyment of their possessions. Article 1 provides, in the relevant
section, that:
“No one shall be deprived of his possessions except in the public
interest and subject to the conditions provided for by law and by the general
principles of international law.
The preceding provisions shall not, however, in any way impair the right
of a State to enforce such laws as it deems necessary to control the use of
property in accordance with the general interest or to secure the payment of
taxes or other contributions or penalties.”
1.124
Article 1 of Protocol
No. 1 comprises three distinct rules, namely:-
(1) The right to the peaceful enjoyment of property
(2) The imposition of conditions on the deprivation of possessions.
(3) Contracting States’ entitlement, amongst other things, to control the
use of property in accordance with the general interest.
1.125
The European Court of
Human Rights has held that these rules are not “distinct” in the sense of being unconnected: the second
and third are concerned with particular instances of interference with the
right to the peaceful enjoyment of property and must be construed in the light
of the general principle enunciated in the first rule.[304] Thus, any interference with the peaceful
enjoyment of possessions must strike a “fair balance” between the demands of
the public or general interest of the community, and the protection of the
individual’s fundamental right. In addition, there must be a reasonable
relationship of proportionality between the means employed and the aim sought
to be realised by any measure depriving a person of his possessions.[305]
1.126
In conceptual terms,
the Commission considers that a system of rules governing the limitation of
actions must aim to ensure that legal arguments are resolved in an orderly and
timely fashion. Any such system must be designed with a view to ensuring, to
the greatest extent possible, fairness to the plaintiff and to the defendant,
with due regard to the public interest. The Commission is mindful, in brief,
that a limitations system must strive to strike a balance between the competing
constitutional and Convention rights of plaintiffs, defendants and the public,
as set in this Chapter.
1.127
The Commission
considers the following synopsis set out by the Law Reform Commission of
Western Australia to be particularly apposite:
“[A] limitations system needs to hold the balance fairly between the
competing interests of the plaintiff and the defendant, and should also take
proper account of the interests of society generally. It must be capable of
dealing appropriately with a wide variety of differing circumstances, and be
able to recognise the special cases which merit different treatment from the
norm, without making it necessary to have different rules for each different situation.”[306]
1.128
In light of the analysis in this Chapter, the
Commission has accordingly concluded that the law governing limitation of
actions must ensure that, in resolving civil disputes in an orderly and timely
fashion, it takes into account the competing rights of plaintiffs and
defendants as well as the general interest of the public, within the framework
of the Constitution and the European Convention on Human Rights.
1.129
The Commission
provisionally recommends that the law governing limitation of actions must
ensure that, in resolving civil disputes in an orderly and timely fashion, it
takes into account the competing rights of plaintiffs and defendants as well as
the general interest of the public, within the framework of the Constitution
and the European Convention on Human Rights.
2
2.01
In this Chapter, the
Commission outlines the current general statutory provisions on limitation of
actions in Ireland, as set out in the Statute of Limitations 1957. The
Commission also describes some of the difficulties and complexities arising
from the current state of the law. This Chapter therefore forms an essential
background against which the reforms being proposed by the Commission can be
assessed.
2.02
In Part B, the
Commission discusses the background to the enactment of the Statute of
Limitations 1957. In Part C, the Commission discusses in detail the key
basic limitation periods in the 1957 Statute, with particular emphasis on the
common law actions (contract, debt-related claims and tort, including personal
injuries claims) that form the focus of this Consultation Paper. For the sake
of completeness, and to illustrate the wide variety of limitation periods in
the 1957 Statute, the Commission also discusses the basic limitation periods
for other forms of actions, even though it does not propose to make
wide-ranging recommendations in respect of those other actions.[307]
2.03
In Part D, the
Commission notes that, in general, the limitation periods under the Statute
of Limitations 1957 run from the date of accrual of the cause of action. In
this respect, unless otherwise specified, the accrual of a right of action is
governed by the common law. The Commission also notes that, subject to the
specific exceptions discussed in Part D, no general discoverability rule
applies in Ireland at present. In Part E, the Commission notes that, subject to
the exceptions discussed, “ultimate” or “long stop” limitation periods are not
a common feature of the current law of limitation in Ireland. Part F discusses
the limited provision for judicial discretion to extend or dis-apply statutory
limitation periods. Part G refers briefly to the (related) inherent discretion
of the courts to dismiss claims where there has been undue delay; this is
discussed in detail in Chapter 7.
2.04
In Part H, the
Commission discusses the provisions of the 1957 Statute that provide for the
postponement of running of the various fixed limitation periods in the
event of, for example, the plaintiff being under age or some external factor
such as fraud. In Part I, the Commission discusses some necessary aspects of
practice and procedure of the courts in respect of limitation periods. In Part
J, the Commission provides a summary of the complexities and problems that
arise from the current state of limitations law in the 1957 Statute. In Part K,
the Commission briefly draws conclusions from the analysis in the Chapter and
makes a provisional recommendation on the need for reform.
2.05
Until 1959, the term “Statute
of Limitations” was used to cover a great number of enactments scattered
over the statute book, each of which dealt with a special statutory class of
action. In addition to the Common Law Procedure (Ireland) Act 1853 and
the Real Property Limitation Acts 1833 to 1874, the following were the
main Acts involved:
· The Fatal Accidents Act 1846,[308] and later the Fatal Injuries Act
1956;[309]
· The Landlord and Tenant Act
(Ireland) 1860 (known as Deasy's Act);[310]
· The Maritime Conventions Act 1911;[311]
· The Industrial and Commercial
Property Act 1927;[312]
· The Moneylenders Act 1933;[313]
· The Workmen's Compensation Act
1934;[314]
· The Merchant Shipping Act 1947;[315] and
· The Public Authorities Protection
Act 1893.[316]
2.06
Leave was granted by
the Dáil in December 1954 to introduce the Statute of Limitations
Bill 1954, intended ‘to consolidate with amendments certain enactments
relating to the limitation of actions and arbitrations’.[317]
The Statute of Limitations Bill 1954 was debated in the Dáil in 1956[318] and then in the Seanad,[319] a Special Committee of which reported
in February 1957.[320]
The 1954 Bill was enacted as the Statute of Limitations Act 1957 and
came into force in accordance with its own terms on 1 January 1959.[321]
2.07
During the Dáil
debates, the Minister for Justice stressed that the object of the 1954 Bill was
to consolidate and amend existing legislation, and to tidy up of the law of
limitation in Ireland.[322]
It was reiterated during the Seanad debates that the Bill was designed to
reform, clarify, repeal, amend, overrule and consolidate the law on
limitations.[323]
The law of limitation was, at that stage, “in many respects uncertain and
difficult.”[324]
It was considered that “there are few branches of the law of this country or of
any country that are more difficult to follow, more difficult to understand
than is the law dealing with this question of the limitation of actions.”[325] The Statute was intended
to reflect the increase in the “tempo of life” and the profound changes in the
conduct of business affairs, and to bring limitations law “in conformity with
the requirements of modern society.”[326]
2.08
The Statute of
Limitations 1957 is almost entirely based on the principle of fixed periods
of limitation running from accrual. Discoverability principles apply,
however, to personal injuries actions (including wrongful death actions) and
actions under the Liability for Defective Products Act 1991. A
“long-stop” limitation period of 10 years also applies under the Liability
for Defective Products Act 1991, reflecting its origins in an EU Directive.
The concept of a discretion to extend a limitation period is, in general,
not a feature of traditional limitation Acts such as the Statute of
Limitations 1957, although such a provision is included in the Defamation
Act 2009, which provides for a general one year limitation period which may
be extended to two years on certain conditions.
2.09
The Statute contains
seven different limitation periods, which apply to a wide range of civil actions:
· 1 year - actions in respect of defamation;[327]
· 2 years – certain personal injuries
actions;[328]
actions in respect of defective vehicles; fatal injuries actions; actions for
an account; actions to recover a penalty or forfeiture or any sum by way of
penalty or forfeiture; actions to recover an amount recoverable by one
tortfeasor (person who commits a tort) against another.
· 3 years: - defective products actions.[329]
· 6 years –actions based on simple contract
and quasi contract; actions to enforce a recognisance, to enforce a sum, to
recover a sum recoverable by virtue of any other enactment, to recover seamen’s
wages; actions to recover arrears of interest in respect of a judgment debt;
actions in respect of successive conversions; actions founded on tort subject
to several exceptions; actions to recover arrears of rentcharges, conventional
rent, dower, annuity paid on personal property; actions to recover arrears of
interest on the principal sum secured by a mortgage or charge; actions to
recover arrears of interest due on foot of a chattel mortgage; actions for
breach of trust.
·
12 years – actions based on an instrument under seal, actions to enforce an
award where the arbitration agreement is under seal, actions upon a judgment;
actions to recover land; actions to recover equitable interests in land;
actions to recover future interests in land where the previous owner is not in
possession at the date of accrual; actions claiming sale of land that is
subject to a mortgage;[330] actions claiming
sale of land subject to a judgment mortgage; actions claiming redemption of
land; actions to recover principal money secured by a mortgage or charge;
actions in respect of certain personal rights in or over land.
· 30 years – actions by a ‘State authority’ to
recover land or to recover future interests in land where the previous owner is
not in possession at the date of accrual; actions by a ‘State authority’
claiming sale of land that is subject to a mortgage; actions to recover
principal money secured by a mortgage or charge on specified mortgages or
charges.
· 60 years – actions by a ‘State authority’ to
recover land that is (or was) ‘foreshore’.
2.10
Thus, it is clear that
the more common limitation periods are two and six years. The length of
the existing basic limitation periods has been described as “a matter of
historical accident”.[331]
The Commission discusses below the basic limitation periods that currently
apply, and some of the problems associated with those limitation period.
It will be apparent from this discussion that the law of limitation is complex,
and perhaps unnecessarily so.
2.11
For actions founded on
tort, the limitation period is six years from the date of accrual of the cause
of action, subject to several exceptions.[332]
This uniform limitation period was introduced in 1957. Previously,
actions for assault, battery, menace, wounding and imprisonment had a
limitation period of four years, and actions for slander actionable per se had
a limitation period of two years.[333]
2.12
The date of accrual of
a cause of action in tort is governed by the common law. Where a tort is
actionable per se - that is, without proof of actual damage - the right
of action accrues on the date of the wrongful act. Where the tort is
actionable only on proof of actual damage, time does not begin to run until
some damage actually occurs. These rules of accrual have the result that
time may begin to run before the injured party discovers the damage, and indeed
before the potential plaintiff has been afforded a reasonable opportunity to
discover the damage.
2.13
There remain several
exceptions to the uniform, six-year period, including actions in respect of
defamation, personal injuries, defective motor vehicles, defective products and
fatal injuries. There follows a discussion of the particular rules of
limitation applicable to such actions.
2.14
Prior to 1959, the limitation of
defamation actions in Ireland was governed by the Common Law Procedure Act
(Ireland) 1853, which set a six-year limitation period for
actions for libel and actions for slander actionable on proof of special
damage.[334]
A two-year limitation period for actions for slander actionable per se.
2.15
Until 2009, the
limitation of defamation actions in Ireland was governed by section 11(2) of
the Statute of Limitations 1957, as enacted. Libel and
slander were treated differently. Actions in tort, including libel, were
subject to a six-year limitation period[335]
while a three-year limitation period applied to actions for slander of any kind
- whether actionable per se or on proof of special damage.[336] Actions brought outside of these
periods were statute-barred.[337]
2.16
During the Dáil debate
on the Statute of Limitations Bill 1954, the Minister for Justice
suggested that “there should be a uniform period for all types of slander but
that it should be a shorter period than that provided for in libel and other
torts.”[338]
The Minister proposed that the six-year limitation period applicable in Britain
for all types of slander ought not to be followed. He instead recommended a
two-year uniform limitation period for all slander actions, on the following
basis:[339]
“It must be very seldom, indeed, that slander actions are brought after
two years. Further, a person’s recollection of the exact words spoken in a
particular instance is likely to be uncertain as time goes on: in the case of
libel there is a permanent record.”[340]
2.17
By the time of the
Seanad debates, however, the uniform limitation period for slander had been
changed to three years, in response to concern that two years might be too
short in the case of slanders actionable on proof of special damage.[341] The Minister remarked that “[i]n
the case of slander, there seems no real reason why the action should not be
brought within three years.”[342]
Senator Ó Ciosáin agreed that “after three years it would be fairly difficult
to produce the necessary evidence to sustain the action in a court of law.”[343]
2.18
Under the Statute, as
amended, the limitation periods for libel and slander both ran from the date of
accrual of the cause of action. Libel actions accrued on the date on which the
publication was made to a third party. Actions in respect of slander that were
actionable per se accrued on the date on which the words were spoken.[344] For actions in respect of slander
that required proof of special damage, the action accrued on the date on which
the special damage was sustained.
2.19
In 1991, following
consultation on the matter,[345]
the Commission published a Report on the Civil Law of Defamation[346] in which it recommended that a single
limitation period should be adopted in respect of all defamation actions.[347] The Commission noted that during
the consultation phase, there had been no dissent from, and widespread support
for, the provisional recommendation of a single limitation period of three
years for all defamation actions.[348]
It was therefore recommended that a uniform three-year limitation period be
introduced, running from the date of accrual.[349]
The Commission recommended that the provisions as to the extension or
postponement of limitation periods in cases of disability, fraud and mistake
contained in the Statute of Limitations 1957 should apply to all
defamation actions other than actions in respect of defamation of a deceased
person.[350]
2.20
In 2002, the Minister
for Justice established a Legal Advisory Group on Defamation, chaired by
Hugh Mohan SC. The Group was asked to take account of recent developments
in other jurisdictions since the publication of the Law Reform Commission’s
Reports. The Group had at its disposal proposals for a Defamation Bill that had
been approved by the Government in December 2001. In 2003 it published a Report
containing 23 recommendations (“the Mohan Report”), and also attached a General
Scheme of a Defamation Bill.[351]
2.21
The Mohan Report
addressed, among other issues, the limitation of defamation actions.[352] It noted that the Law Reform
Commission had recommended of the introduction of a general, three-year
limitation period.[353]
After examining recently-enacted defamation legislation in other jurisdictions,
however,[354]
the Report noted “an increasing tendency to opt for even shorter periods of
limitation” accompanied by “safeguard measures whereby a court would have a
discretion to allow defamation proceedings to be taken, notwithstanding that
the limitation period had expired.”[355]
The Report recommended that the limitation period for defamation should be
reduced to one year, considering this to be ample in the vast majority of
cases.[356]
2.22
The Mohan Report
further recommended that the courts should be given the discretion to disapply
the one-year limitation period, in order to cater for exceptional cases.[357] It considered that this would assist
plaintiffs should they become aware of the potentially defamatory material more
than one year after the original publication.[358]
In order to exercise their discretion, the courts would have to be satisfied
that “any prejudice which the plaintiff might suffer if the action were not to
proceed significantly outweighs any prejudice which the defendant might suffer
if the action were to proceed.”[359]
These recommendations were set out in section 37 of the General Scheme of a
Defamation Bill,[360]
under which the courts could only exercise their discretion where this was “in
the interests of justice”.[361]
The courts would be mandated to have regard to the circumstances of the case,
including the length of and reason for the delay and the extent to which the
relevant evidence is likely to be unavailable or less cogent because of the
delay.[362]
2.23
The Group also
considered that a long-stop of six years should apply, running from the date of
accrual,[363]
to avoid any injustice which the one-year limitation period might cause.
No action for defamation could be commenced after the expiration of this
ultimate limitation period.
2.24
It further recommended
that the limitation period should run from the date on which the matter
complained of was first published and, in the case of publication by electronic
means, that date should be the date on which the material was first made
available.[364]
In effect, it recommended the introduction of a single publication rule.[365]
2.25
The Group noted that
the general rules concerning disability, fraud or mistake would still apply,
irrespective of the discretion to dis-apply and the long-stop.[366]
2.26
The Defamation Act
2009 substantially implements the recommendations of the Mohan Report with
respect to the limitation of actions. It amends section 11(2) (c) of the Statute
of Limitations 1957 so as to provide a one-year basic limitation period for
defamation actions,[367]
running from the date of accrual of the cause of action. It also
provides an alternative limitation period of “such longer period as the court may direct not
exceeding 2 years from the date on which the cause of action accrued.” Thus, the maximum limitation period is two
years from accrual. The nature of the discretion allowed under the
alternative limitation period is discussed in Chapter 6, below.
2.27
Under the new section
11(3B), the date of accrual is defined as the date upon which the defamatory
statement is first published. Where the statement is published through the
medium of the internet, the date of accrual is the date on which it is first
capable of being viewed or listened to through that medium.[368]
Under the amended section 11(2) (c), both new limitation periods run from the
date on which the cause of action accrued.[369]
2.28
The 2009 Act also
amends the disability provisions of the 1957 Act so as to allow for the
limitation period to be postponed by reason of disability, by substituting the
words “one year or such longer period as the court may direct not exceeding
two years” for the words “six years”.[370]
2.29
Historically, the
limitation of personal injuries actions was treated in the same manner as all
other actions in tort (six years), while actions for assault, menace, battery,
wounding, and imprisonment had a limitation period of four years.
2.30
At the time of the
enactment of the Statute of Limitations 1957, “roughly half” of all tort
actions were estimated to be personal injuries actions.[371]
The Statute introduced a new, three-year limitation period for personal
injuries actions for negligence, nuisance or breach of duty.[372]
This limitation period applied whether or not the action is against the State
or another public authority.[373]
It represented, at the time, a “fairly important change in the law.”[374] The three year period accorded,
at the time, with the limitation period applicable to fatal injuries actions.[375]
2.31
The constitutionality
of the three-year limitation period for personal injuries actions was
considered in Cahill v Sutton.[376]
The plaintiff argued that the absence of a “saver” in favour of injured persons
who, through no fault of their own, were unaware of relevant facts until after
the expiration of the limitation period had expired, rendered section 11(2)
unconstitutional. At that point, a “saver” of that nature had been
introduced in the UK in its Limitation Act 1963. In the High
Court, Finlay P found the 1957 Statute to be valid. The
plaintiff appealed, but the Supreme Court found it unnecessary to decide the
point as the plaintiff had no locus standi to raise the point, on the
basis that she had been aware of the relevant circumstances before the
limitation period expired. Henchy J (with the agreement of three other
members of the Court) commented that, while the Court did not therefore deal
with the constitutionality point:
“it is proper to point out that the justice and fairness of attaching to
that sub-section a saver such as was inserted by the British Parliament in s.1
of the Limitation Act 1963 are so obvious that the enactment by our
Parliament of a similar provision would merit urgent consideration.”[377]
2.32
McCarthy J. in Norris
v Attorney General[378] construed the remarks of Henchy
J as having indicated that section 11(2) of the Statute was
unconstitutional in the absence of a saver, and comments made by Costello J. in
Brady v Donegal County Council[379] suggested a certain willingness
to construe the provision likewise.
2.33
Following amendments
introduced by the Statute of Limitations (Amendment) Act 1991,[380] personal injuries actions are now
subject to a specialised regime which applies to actions claiming damages in
respect of personal injuries caused by negligence, nuisance or breach of duty,
whether the duty exists by virtue of a contract or of a provision made by or
under a statute or independently of any contract or any such provision. A date
of knowledge test governs the running of the limitation period for such
actions.[381]
2.34
As a result of
amendments introduced by the Civil Liability and Courts Act 2004 which
came into force in 2005,[382] personal injuries actions must be
brought before the expiry of two years from the accrual of the cause of action
or the date of knowledge (if later).[383]
It was originally proposed that a one-year limitation period would be
introduced for personal injuries actions, but this was increased during the
Oireachtas debate on the 2004 Act, primarily on the basis of protests that one
year was too short a period for complex medical negligence claims.[384]
2.35
The Personal Injuries
Assessment Board, which uses the informal title Injuries Board, was established
under the Personal Injuries Assessment Board Act 2003 to reduce
the costs involved in personal injuries claims and to reduce the amount of time
it takes to finalise a claim.[385]
Persons seeking damages for personal injuries may not bring court proceedings
until they have applied to the Board and received authorisation to bring such
proceedings.[386]
2.36
Although a claimant
cannot commence court proceedings in respect of a personal injuries claim until
authorised by the Board, the claimant may apply to the courts for any
interlocutory order provided for by the Rules of Court or inherent in the
courts’ jurisdiction in civil proceedings.[387]
This may include an injunction restraining the transfer of assets to a place
outside of the State, or restraining the dissipation of assets, or requiring
evidence to be preserved. The making of such an application is not
regarded as the commencement of proceedings in respect of the relevant claim
for the purposes of the Statutes of Limitations.[388]
2.37
The period beginning
from “the making of an application” to the Board and ending six months from the
date of issue of an authorisation by the Board is disregarded for the purposes
of the Statutes of Limitation.[389]
As will be outlined below, the following may occur from the date of
making the application:
i)
The respondent has 90
days to consent to the assessment;
ii)
The Board then has nine
months (with a possible six-month extension) to complete the assessment;
iii)
The claimant then has
28 days to reject the assessment;
iv)
If an authorisation is
issued, the claimant has 6 months before the Statute begins to run
again.
2.38
This makes up 19 months
(with the possibility of a six-month extension) during which the running of the
limitation period is frozen.
2.39
The date of making an
application must be clearly defined so that the date on which the running of
the limitation period against the claimant is frozen can be clearly
identified. This is not currently the case. The current situation,
following the introduction of the Board’s Rules in May 2004, is that the Board
issues an acknowledgement in writing of the date of receipt of the completed
application.[390]
The date acknowledged by the Board is the date on which the running of the
relevant limitation period is frozen.
2.40
Under the Rules, the
application must be made in writing or by email, and must contain such
information as may from time to time be specified by the Board. The
application must be accompanied by specified documents[391]
and the applicable application charge.[392]
Difficulties have been experienced in registering applications with the
Board owing to the list of documents required. In particular, claimants
often have difficulties in procuring a medical report. It is also problematic
that the Board is not required to furnish the written acknowledgement of
receipt of the application within any specific period of time. Claimants are,
therefore, left in limbo until receiving the acknowledgement, particularly if
the application is made close to the expiry of the limitation period.
2.41
Once the claimant has
applied to the Board, it must serve notice on the respondent informing him or
her of the application and requesting him or her to state in writing within a
specified period (usually 90 days) whether he or she consents to an assessment
being made in respect of the application.[393]
The Board reported in June 2007 that a surprising number of claims were
settling within this 90-day period, before the formal assessment begins.[394]
2.42
If the respondent
expressly refuses consent, the Board must issue an authorisation to the
claimant to issue court proceedings.[395]
If the respondent consents to the making of an assessment, the Board may
arrange for an assessment to be made,[396]
although in exceptional circumstances it may decline to make an assessment and
instead issue an authorisation.[397]
The Board has a statutory duty to ensure that assessments in respect of
relevant claims are made as expeditiously as may be,[398]
and it is statutorily required to determine a claim within nine months of the
date of consent.[399]
By May 2007, it had an average finalisation period of 7.4 months from the date
of consent to the date of the award, or 10.2 months from the date of application
to the date of the award.[400]
2.43
If there is more than
one respondent, the date may be pushed back further.[401]
This time may be extended by a further six months, or further still with the
claimant’s consent.[402]
2.44
Once the assessment has
been made and notified to the parties, the claimant has 28 days and the
respondent has 21 days from the date of service of the notice to accept or
reject the assessment. If either party refuses to accept the assessment,
the Board must issue an authorisation for court proceeding to be commenced.[403] Certain assessments require court
approval. If those assessments are not approved, the Board must issue an
authorisation.[404]
Once the authorisation is issued, a further six month period elapses before the
Statute of Limitations once again begin to run against the claimant.[405]
2.45
Thus it is clear that
the mechanics of the assessment of claims by the Injuries Board has a
considerable impact on the running of the basic limitation period in personal
injuries cases. This contributes to uncertainty in the operation of the
Statutes of Limitation.
2.46
Under the Sale of
Goods and Supply of Services Act 1980, there is an implied condition in every contract
for sale of a motor vehicle that at the time of delivery of the vehicle under
the contract it is free from any defect which would render it a danger to the
public, including persons travelling in the vehicle.[406]
A right of action may accrue to a person using a motor vehicle with the consent
of the buyer of the vehicle, who suffers loss as a result of a breach of this
implied condition.[407]
Under section 11(2)(d) into the Statute of Limitations 1957[408]a 2-year limitation period
applies to actions in respect of a breach of this implied condition, running
from the date of accrual. A date of knowledge test applies to such of
these actions “which consist of or include damages in respect of personal
injuries to any person.”[409]
2.47
Under the Liability
for Defective Products Act 1991, which implemented the 1985 EC Directive
on Liability for Defective Products, 85/374/EEC, a three year limitation
period applies to defective products actions under the 1991 Act, running from
the date on which the cause of action accrued or the date on which the
plaintiff became aware of the damage, the defect and the identity of the
producer of the defective product.[410]
This is, effectively, a discoverability test. The plaintiff’s knowledge
is construed in accordance with section 2 of the Statute of Limitations
(Amendment) Act 1991.[411]
Under the 1991 Act, and in accordance with the 1985 EC Directive, a long-stop
of 10 years applies from the date on which the product was put into
circulation.
2.48
The time limits
prescribed under sections 9 and 48 of the Civil Liability Act 1961 for actions
surviving against the estate of the deceased and fatal injuries actions,
respectively, do not apply to actions to recover damages in respect of
defective products under the 1991 Act.[412]
It should be noted that actions in respect of defective products may still be
brought outside the terms of the 1991 Act; in other words, the 1985 EC
Directive and the 1991 Act do not completely replace the common law rules of
liability for defective products.
2.49
The Statute of
Limitations (Amendment) Act 2000 regulates the limitation period applicable
to actions by adult plaintiffs in respect of sexual abuse suffered as a
child. This Act inserts a new section 48A into the disability chapter of the
Statute of Limitations 1957. Under section 48A, the running of the
limitation period in respect of an action claiming damages in respect of sexual
abuse suffered as a child is postponed during such period as the plaintiff is
suffering from any psychological injury caused by the defendant’s
acts. No long-stop period applies.
2.50
The special limitation
regime applies to the following actions:
a. Actions founded on tort in respect of an act of sexual abuse suffered
when the plaintiff was not of full age, and
b. Actions against a person (other than the person who committed the act),
claiming negligence or breach of duty, where the damages claimed consist of or
include damages in respect of personal injuries cause by such an act of sexual
abuse.[413]
2.51
Section 48A(1)(a) makes
all actions founded on tort in respect of child sexual abuse subject to the
special disability regime. Thus, actions in respect of trespass to the person
(sexual abuse) and actions in respect of personal injuries are both subject to
the special disability provisions. In practice, this means that the six
year (general tort) and two year (PI) limitation periods do not begin to run
until the plaintiff is deemed not to be suffering from a psychological injury.
2.52
The special limitation
regime applies only if the sexual abuse perpetrated upon the plaintiff, as a
child, resulted in a psychological injury to the plaintiff, as an adult.
In order for a plaintiff to be deemed to be suffering from a psychological
injury, two conditions must be fulfilled; first, the injury must have been
caused, in whole or in part, by the defendant’s act of sexual abuse, or any
other act; and secondly, the injury must be of such significance that the
plaintiff’s will or ability to make a reasoned decision to bring an action is
substantially impaired.[414]
The psychological injury need not have resulted entirely from the child abuse
suffered and its attribution may derive from ‘any other act’ of the defendant,
other than the sexual abuse. Thus, even if the plaintiff is no longer
suffering as a direct result of the abuse itself but his or her will to issue
proceedings remains overborne, for example, by threats from the perpetrator,
the running of the limitation period remains postponed.[415]
2.53
Section 48A(2)(7) of
the Statute of Limitations 1957, as amended, defines “an act of sexual
abuse” so as to include:
·
any act of causing,
inducing or coercing a person to participate in any sexual activity,
·
any act of causing,
inducing or coercing the person to observe any other person engaging in any
sexual activity, or
·
any act committed
against, or in the presence of, a person that any reasonable person would, in
all the circumstances, regard as misconduct of a sexual nature.[416]
2.54
These provisions apply
to acts of sexual abuse perpetrated against persons up to the age of 21, up to
March 1 1985,[417]
and such acts perpetrated against persons up to the age of 18 after that date.[418]
2.55
The 2000 Act does not
affect the courts’ inherent jurisdiction to dismiss a claim the interests of
justice so require, even where the claim is not statute-barred.[419] This is further discussed in
Chapter Seven (see page 313.)
2.56
No special limitation
period applies to actions in respect of non-sexual child abuse. Although the
law is not entirely settled on the subject, it is arguable that civil actions
seeking damages in respect of non-sexual abuse suffered as a child may be classified
as either the following torts:
2.57
Option (a) means that
an adult who wishes to bring a civil action seeking damages in respect of
non-physical abuse suffered as a child under the tort of trespass to the
person has six years running from their 18th birthday to take
the action.[420]
The prospective plaintiff may, therefore, commence proceedings at any
time up to the day of his or her 24th birthday. The
plaintiff’s right to maintain the proceedings will, however, be subject to the
court’s jurisdiction to dismiss for want of prosecution.
2.58
Option (b) means that
an adult who wishes to take a civil action seeking damages in respect of
non-physical abuse suffered as a child under the tort of negligence and/or
breach of duty giving rise to personal injuries, has two years running
either from their 18th birthday, or from the date on which they are
deemed to have sufficient ‘knowledge’ of the fundamental facts giving rise to
their cause of action, whichever is later.[421]
2.59
Because no special
limitation period applies to actions in respect of non-sexual child abuse,
potential plaintiffs may find themselves statute-barred. This may occur,
for example, where the abuse suffered as a child has resulted in psychological
or psychiatric illness in adulthood. It is well-documented that persons
who suffer abuse as children may, as adults, suffer from avoidance behaviour,
post-traumatic stress disorder, repressed memory syndrome, psychological
incapacity, and other long-term psychological and psychiatric damage.[422] As a result, as the Commission
noted in a previous Consultation Paper, the adult may be unable to recall the
abuse and/or they may be unaware of the connection between the abuse and the
resulting psychological or psychiatric damage. Even if the adult is armed
with sufficient knowledge of the fundamental facts giving rise to the cause of
action, he or she may nevertheless be immobilised from acting and therefore
unable to institute proceedings.[423]
2.60
Further problems may
arise owing to the unsettled nature of the continued availability of the
discrete tort of negligent trespass to the person in Ireland. In
England, this tort has effectively been subsumed into the tort of negligence,
nuisance or breach of duty, to which a different limitation period applies when
compared to tort actions.[424]
In Ireland, it may still fall under the category of trespass to the person,
instead of falling within the definition of personal injuries provided in the
1991 Act. Its classification is important for limitation purposes.
2.61
The Statute of
Limitations (Amendment) Act 2000 does not apply to actions taken by adults
in respect of non-sexual child abuse. It was suggested during the debates
on the Bill that resulted in the 2000 Act that the scope of its provisions
should be extended to include such actions. This proposal was motivated by the
assertion that physical or sexual abuse, or a combination of both, involves the
use of power and that the intent and effect of this abuse, whether physical,
sexual or a combination of both, can be as traumatic as sexual abuse.[425] It was further proposed that if
someone has been the victim of depravity, whether it is physical or sexual
abuse, a special limitation regime is merited.[426]
The proposal was opposed, however, as it was considered that forms of childhood
abuse other than sexual abuse involved more complex questions. The then
Minister noted:-
“It is very difficult to define precisely what kind of physical abuse
should be actionable and what constitutes physical abuse. […] The issues are
not as clear cut with physical abuse as they are with sexual abuse.”[427]
2.62
In its Consultation
Paper on this matter,[428]
the Commission provisionally recommended that a special limitations regime was
necessary to accommodate the particular problems of the limitation of actions
arising from non-sexual child abuse, but that separate limitation periods
should apply in respect of sexual and non-sexual child abuse.[429]
2.63
The Commission
considered the following four options for reform:
1) A disability test in the mode of the
2000 Act
2) A discoverability test in the mode
of the 1991 Act
3) A presumption of incapability as
introduced in Ontario
4) A statutory fixed limitation period,
running from the age of majority.
2.64
The Commission provisionally
favoured the introduction of a fixed limitation period, which would start to
run once the potential plaintiff reached the age of majority. The
Commission suggested that one of the following two periods should apply:
·
A fixed, 15-year limitation
period running from the age of majority, or
·
A primary, 12-year
limitation period running from the age of majority, subject to extension by no
longer than three years at the discretion of the judge (thus a maximum of 15
years from age of majority).
2.65
The Commission
recommended that a clear, certain, ascertainable and objective definition of
“non-sexual abuse” of children should be set out in legislation so as to
complement the definition of “sexual abuse” set out in the 2000 Act.
2.66
The Commission also
recommended that the proposed limitations regime should be confined to
situations in which there existed, at the time of the alleged abuse, a
relationship of trust and dependency between the child and the defendant.
Additionally, the Commission recommended that actions in respect of vicarious
liability or other associated liability, including the responsibility of
supervisory authorities, for acts of non-sexual child abuse should also be subject
to a special limitations regime.[430]
2.67
At present, actions in
respect of defective premises against builders, vendors and lessors are dealt
with at common law under the tort of negligence. Such actions are,
therefore, subject to the standard six-year limitation period.[431] The date of accrual is governed by the
common law.
2.68
In a Working Paper
published in 1977, the Commission recommended the introduction of statutory
duties concerning the liability of builders, vendors and lessors in respect of
the quality and fitness of premises.[432]
In its subsequent 1982 Report on Defective Premises, which included a
draft Defective Premises Bill, the Commission envisaged two new
statutory duties: first, a duty to build properly and second, a duty to ensure
the safety from personal injuries and damage to property of persons who might
reasonably be expected to be affected by defects in the state of the premises.[433]
2.69
In the 1977 Working
Paper, the Commission recommended the introduction of a 12-year limitation
period for actions in respect of breach of such duties.[434]
In the 1982 Report that followed, the Commission recommended that a
discoverability test should apply to actions in respect of defective premises,[435] subject to personal injuries actions
being dealt with under common law rules.[436]
The Commission recommended against the introduction of a long-stop limitation
period of 10 years in respect of defective premises actions, in the interests
of fairness to the plaintiff.[437]
2.70
The two-year limitation
period that applies to personal injuries actions also applies to medical
negligence claims[438]
(although it should be noted that such claims fall outside of the scope of the Personal
Injuries Assessment Board Act 2003). It was argued forcibly during
the Oireachtas debate on the Civil Liability and Courts Act 2004 that
medical negligence claims need a longer limitation period than two years, and
are instead deserving of a special period of limitation. In favour of a
longer period, several arguments were canvassed including the difficulty of
getting expert witnesses, the trust that many patients repose in their doctors
which may cause them to hesitate before initiating a claim against them, as
well as the fact that the effective suspension of the limitation period during
the PIAB assessment does not apply to medical negligence claims.[439]
2.71
In this regard, Binchy
notes that “forcing lawyers to initiate claims before the case has been
properly prepared compromises the plaintiff, the defendant and the
administration of justice.”[440]
Indeed, the then Minister for Justice, Equality and Law Reform, speaking of the
complexity of medical negligence cases, acknowledged as follows in the Seanad:
“[...] even an enthusiastic solicitor seeking to marshal all the facts
and get all the relevant reports will be hard pressed to get much of the
material lined up so that the barristers can advise the client, if it is a case
that requires advice, on who the appropriate defendant should be and on whether
it was the anaesthetist, the surgeon or the hospital who was responsible for
the medical catastrophe. Also, obtaining medical reports here frequently
requires going outside the country and the laying out of considerable amounts
of money.”[441]
2.72
Nevertheless, the
Minister found “attractive” the argument that “if we have a general limitation
period, it must be generally understood [...] by everybody as a general feature
of our law.” [442] Putting forward a
hypothetical scenario of a pedestrian injured by a negligent motorist and then
treated by a doctor, the Minister argued that an extension of the limitation
period for medical negligence claims to three years would tempt the injured
pedestrian to make an claim for medical negligence in addition to his claim
against the negligent motorist.[443]
Binchy has argued that the Minister’s arguments in this regard are “not fully
convincing”,[444]
and he suggests that the hypothetical situation promulgated by the Minister in
support of his contention is “clearly an exceptional one.”[445]
The Minister further argued:
“Defensive
medicine is also damaging to the national interest. Claiming that the
boat must be put out for victims of medical negligence because they are a
special category ignores that we want doctors to treat people in an effective
and efficient way. It is not a public policy aim to encourage medical
negligence claims and put them in a wholly different category from ordinary
negligence claims. [...] I tend to believe that the pendulum may have swung too
far in favour of liability. If one has a case in medical negligence, then
bearing in mind the new law and the new time period which starts at the point
of knowledge, which is quite generous in its own way, two years should be
sufficient for people with claims against doctors to have those claims
articulated, put in writing and commenced.”[446]
2.73
There remains a degree
of discontent with the application of the two-year limitation period to medical
negligence claims. Binchy, for example, suggests that the Minister’s defence of
the two-year period for medical negligence claims “does not address the
concerns that were advanced in favour of a longer period.” [447]
2.74
In Tate v The Minister for
Social Welfare,
Carroll J. in the High Court held that the word “tort” in the Statute of
Limitations was sufficiently wide to cover breaches of obligations of the
State under European Community law, and that such a breach approximates to a
breach of constitutional duty.[448] The Tate decision was relied upon by one of
the defendants in McDonnell v Ireland[449] as authority for the contention that even though the breach
of a constitutional right is not expressly referred to in the Statute of
Limitations, it is nevertheless a tort, i.e. a civil wrong for which
the normal remedy is an action for unliquidated damages. Carroll J. in the High Court agreed, finding the plaintiff
to be statute-barred. She held that it “flows logically” from her earlier
decision that the limitation period applicable to torts under the Statute of
Limitations 1957 applies to breaches of a constitutional right that are in
the nature of a tort as it does to breaches of obligations of the State under
Community law.”[450]
2.75
The decision was appealed to the
Supreme Court. Keane J[451] asked the following question:-
“Is there any reason why such an action, whatever its
legal parameters, should not be regarded as an action founded on tort within
the meaning of s. 11 (2) of the Act of 1957?”[452]
2.76
Keane J. referred to the “dynamic nature” of the tort
action, setting out its evolution and referring to the emergence of “new species of tortious principles”. He held that there
was no reason to suppose that the Oireachtas legislated in 1957 on the basis
that the law of torts was, at that stage, petrified for all time, albeit that
they may not have envisaged the extent to which the developing constitutional
jurisprudence of the Courts would, in later decades, reinforce the progressive
development of the law of civil wrongs.[453] He
answered his earlier question in the negative as follows:-
“Whatever may be the position in regard to other
possible defences, no one has been able to identify in this case any ground for
supposing that an action for breach of a constitutional right which has all the
indicia of an action in tort should have a different limitation period from
that applicable to actions in tort generally, or indeed no limitation period at
all, other than its origin in the Constitution itself, which is a classically
circular argument. Nor could it be seriously argued that the fact that the
action for breach of a constitutional right frequently takes the form of
proceedings against organs of the State is of itself a reason for treating a
limitation statute as inapplicable.”[454]
2.77
Keane J. then referred to the
various policy considerations that underlie statutes of limitations, citing the
judgment of Finlay CJ in Tuohy v Courtney[455], and
concluded as follows:-
“I can see no reason why
an actress sunbathing in her back garden whose privacy is intruded upon by a
long-range camera should defer proceedings until her old age to provide herself
with a nest egg, while a young man or woman rendered a paraplegic by a drunken
motorist must be cut off from suing after three years. The policy
considerations identified by the learned Chief Justice in the passage which I
have cited are applicable to actions such as the present as much as to actions
founded on tort in the conventional sense.”[456]
2.78
More recently, in Sinnott v
Minister for Education[457] the plaintiffs brought a claim
seeking damages in respect of an alleged breach of the State’s constitutional
obligation to provide adequately for the first plaintiff’s education and
training. Barr J. in the High Court, citing the judgment of Keane J. in
McDonnell, held that claims for damages for breach of
constitutional rights are analogous to common law actions in tort and the Statute
of Limitations 1957 applies to such claims. He found that as there was no
corresponding duty in ‘ordinary’ law, it was appropriate to bring a
constitutional action. Although the Supreme Court allowed the limited
appeals that were brought in that case, it did not overturn the findings of
Barr J. with respect to the Statute of Limitations.
2.79
There are three primary
limitation periods applicable to actions in contract, which run for two, six
and twelve years.[458]
In general, the limitation periods run from the date of accrual, which is
the date on which the breach of contract occurs (not the date on which the
damage is suffered). This is because the essence of a breach of contract
is the breach, and not any resulting damage which may be occasioned by the
breach.[459]
Difficulties arise in determining the date of accrual in the event of a continuing
breach, where a fresh breach occurs at each moment the contract remains
unperformed. Continuing breaches should also be distinguished from a recurring
or successive breach of contract which occurs where a contract
requires recurring performance of a series of dates. In this event, the
cause of action accrues again and again on each occasion that the performance
is not made.
2.80
A two-year limitation
period to actions to recover any penalty or forfeiture, or sum by way of
penalty or forfeiture, recoverable by virtue of any enactment. As with most
contract actions, this limitation period runs from the date of accrual.[460] The present rule reflects the
pre-1959 situation.[461]
2.81
This limitation period
does not apply to actions to recover fines to which any person is liable on
conviction of a criminal offence.[462]
Penalties for the non-payment of duties and taxes under the care and management
of the Revenue Commissioner do not come within the remit of the Statute, as the
non-payment of such duties are in reality criminal offences. The only field of
operation of this limitation period is for the recovery of penalties by ‘common
informers’.[463]
2.82
Under the Tortfeasors
Act 1951,
a jury may apportion damages in respect of a tort among all or some of the
defendants in such proportions as it sees fit.[464]
Any tortfeasor who has paid in excess of the amount apportioned to him or her
may recover the lesser of the following from another tortfeasor who is not
entitled to an indemnity[465]:-
i)
the excess paid by the
claimant tortfeasor, or
ii)
the amount by which the
amount which the contributor has paid falls short of the amount apportioned to
him or her.
2.83
This sum is considered
a simple contract debt and, as such, a two-year limitation period applies to
its recovery, running from the date of accrual.[466]
The date of accrual is the date on which judgment was obtained by the
injured person against the claimant tortfeasor.[467]
2.84
Under the Sale of
Goods and Supply of Services Act 1980, there is an implied condition in the
contract of sale that at the time of delivery of the vehicle it is free from
any defect which would render it a danger to the public, including persons
travelling in the vehicle.[468]
A person using a motor vehicle with the consent of the buyer of the vehicle who
suffers loss as the result of a breach of this implied condition may maintain
an action for damages against the seller in respect of the breach as if he were
the buyer.[469]
Such actions must be taken within two years of the accrual of the cause of
action. [470]
2.85
A six-year limitation
period applies to the following actions:
· Actions founded on simple or
quasi-contract,[471]
· Actions to enforce a recognisance,[472] and
· Actions to recover seamen’s wages.[473]
2.86
This limitation period
runs from the date of accrual. The provisions reflect the law as it stood prior
to the enactment of the Statute.[474]
2.87
A six-year limitation
period applies to actions to recover any sum recoverable by virtue of any
enactment.[475]
Prior to the coming into force of the Statute, the limitation period for
such actions was 20 years.[476]
This limitation period applies to actions for fraudulent trading,[477] but does not apply to actions to
recover:
i)
A penalty or forfeiture
or sum by way of penalty or forfeiture;[478]
ii)
Debts owed by a member
of a company or a contributory thereto;[479]
iii) An amount recoverable by a
tortfeasor under sections 4 or 5 of the Tortfeasors Act 1951;[480] or
iv) Actions requiring persons to remedy
defects in the construction of a dwelling house by completing the construction
in conformity with planning permission[481]
- no limitation period applies in these cases.[482]
2.88
A six-year limitation
period applies to actions to enforce an award where the arbitration agreement
is not under seal, or where the arbitration is under any Act other than the Arbitration
Act 1954.[483] A 12-year limitation period
applies where the agreement is under seal.[484]
The limitation periods both run from the date of accrual, which occurs when the
party against whom the award has been made fails to honour the award. [485]
2.89
Under section 11(4) of
the Statute of Limitations 1957 actions for an account cannot be brought
in respect of any matter that arose more than six years before the commencement
of the action.[486]
This rule reflects the law as it stood prior to the commencement of the Statute
of Limitations 1957,[487]
and was based on comparable provisions in section 2(2) of the UK Limitation
Act 1939. It has long been recognised that the ancient common law action
for an account had become obsolete before the enactment of the 1957 Statute[488] so that the action for account referred
to in the 1957 Statute must refer to the equitable remedy of account.
2.90
Whatever the nature of
the action for an account, it is important to note that this remedy is rarely,
if ever, applied for in its own right. Most claims for account are linked to
another claim, such as a claim for damages (in which the claim for account
assists in calculating the quantum of damages) or arising from, for example, a
breach of fiduciary duty[489]
or a statutory duty. In Tito v Waddell (No.2),[490] the English High Court (Megarry
VC) held that the limitation period in section 2(2) of the UK Limitation Act
1939 (the basis for section 11(4) of the 1957 Statute) did not apply where
the claim for an account was sought in the context of a separate equitable
remedy.
2.91
It is notable that,
since the Tito case, section 2(2) of the UK 1939 Act has been replaced
by s.23 of the UK Limitation Act 1980, which is worded quite differently
from its statutory predecessor, and states: “An action for an account shall not
be brought after the expiration of any time limit under this Act which is applicable
to the claim which is the basis of the duty to account.” Section 23 of
the 1980 Act has the effect of attaching any time limit in the 1980 Act itself
that applies to an action with which the claim for account is connected. In Nelson
v Rye,[491]
the English High Court (Laddie J) noted that the 1980 Act did not contain
any limitation period for claims involving a breach of fiduciary duty. Thus, in
that case, which was a claim for a breach of fiduciary duty brought by the
well-known musician Willie Nelson - and in which a claim for account was
included – the English High Court concluded that the claim was not subject to
the six year time limit in s.23 of the UK Limitation Act 1980.
2.92
The Commission notes in
this respect that where a specific cause of action is not subject to a
limitation period in the 1957 Statute, no limitation period applies to
it, as where claims for account are brought on the basis of breach of a
fiduciary duty, such as the duty of a trustee. The Commission notes later in
this Chapter that, in connection with such duties, the courts developed related
concepts such as laches (delay) and acquiescence to address the procedural
fairness or unfairness that arises in such situations.[492]
Bearing that in mind, the Commission considers that this long-standing approach
of the law should continue to apply. It is, nonetheless, also apparent from
cases such as Tito v Waddell (No.2) and Nelson v Rye that, even
with the changes made by the UK 1980 Act, it is difficult to determine what, if
any, limitation period applies in practice. The Commission has accordingly
concluded that, in the context of a reformed law on limitation of actions, it
should be clear that specific forms of civil litigation, such as claims for
breach of a fiduciary duty, do not fall within the scope of any limitation
period in the legislation on limitations.
2.93
The Commission
provisionally recommends that, in the context of a reformed law on limitation
of actions, it should be clear that specific forms of civil litigation, such as
claims for breach of a fiduciary duty, do not fall within the scope of any
limitation period in the limitations legislation.
2.94
Actions upon a
specialty (i.e. a contract or other obligation contained in an instrument under
seal)[493]
must be brought within 12 years of the date of accrual of the cause of action.[494] This does not apply to actions
to recover:[495]
(i)
arrears of a rentcharge or conventional rent;[496]
(ii)
any principal sum of money secured by a mortgage or other charge on land
or personal property (other than a ship);[497]
(iii)
arrears of interest in respect of a sum of money;[498]
(iv)
arrears of an annuity charged on personal property.[499]
2.95
Prior to the
commencement of the Statute of Limitations 1957, a 20-year limitation
period applied to actions upon a contract brought about by a specific deed
(i.e. registered, stamped and duly executed). It was considered that
those who went to the trouble of drafting such a deed and having it stamped and
registered attached more sanctity to the deed than would ordinarily be attached
to a simple contract. The reduction in the time limit to 12 years was intended
to reflect an increased tempo of modern living.[500]
2.96
The reduction from 20
to 12 years mirrored a reduction implemented in England and Wales under the Limitation
Act 1939. That reduction was the result of the recommendation of the
Wright Committee which considered that there should be a longer limitation
period for actions on a specialty than for actions of simple contract
principally because difficulties of evidence were less likely to arise where
the action was upon a contract under seal as opposed to actions upon a simple
contract, which may not even be in writing. The Wright Committee also
recommendation also reflected that:
“Money is frequently advanced on bonds or debentures or similar
instruments, which is not expected or intended to be repaid for a long period
and on which payment of interest is waived or suspended. It would be an
inconvenience to insist that the lender should call in his lone within six
years or lose his rights.” [501]
2.97
The choice of 12 years
was based in particular on “the desirability of fixing the same period for an
action brought upon a covenant, whether in a mortgage deed, or in a deed
without security, as for an action to recover land.”[502]
2.98
Under the Statute of
Limitations 1957 as enacted a 12-year limitation period applied to actions
to recover “a debt created by subsection (2) of section 14 or section 125 of
the Companies (Consolidation) Act, 1908”. The debt created by section 14(2) of the 1908
Act was a debt owed by a member of a company under the memorandum and articles
of a company,[503]
while the debt created by section 125 was a debt owed by a contributory.[504] Both of those debts were
classified as ‘specialty debts’ under the 1908 Act which was repealed by the Companies
Act 1963.[505] The 1963 Act provides however that
a 12 year limitation period applies to equivalent debts[506]
The Companies Act 1963 does not repeal the relevant section of the Statute
of Limitations 1957.
2.99
The provisions of the Statute
of Limitations 1957 do not apply to any claim for specific performance of a
contract, or for an injunction or for other equitable relief except in so far
as they may be applied by analogy. Such claims may, however,
be barred by laches or acquiescence which are discussed more fully
below.
2.100
The following is a
non-exhaustive examination of the limitation periods applicable to some common
causes of action. As already noted in the Introduction to this Paper, the
Commission intends to focus on the most common forms of civil actions.
The following discussion is, however, intended to reflect some recurring
trends in the principles applicable to limitation periods.
2.101
Where judgment is
obtained from a court of record, a 12-year limitation period applies to actions
upon that judgment. The limitation period begins to run from the date on
which the judgment became enforceable.[507]
In the event of an appeal, the limitation period runs from the date of
the appeal court’s judgment.[508]
2.102
A six-year period
applies to actions to recover arrears of interest in respect of a judgment
debt, running from the date on which the interest became due.[509]
2.103
Conversion is an
unauthorised act by one person which deprives another person of his property
permanently or for an indefinite time. A right of action for conversion
arises on the doing of the unauthorised act. An action for conversion is
one for damages. Wrongful detention occurs where one person detains the
property of another. The right of action arises when a demand of the
owner has been wrongfully refused. The remedy sought in an action for wrongful
detention is restitution of the property.
2.104
Prior to the
commencement of the Statute of Limitations 1957, when the same chattel
was the subject of separate acts of conversion or detention, the fact that the
limitation period had run in favour of the first wrongdoer did not bar an
action against a second or subsequent wrongdoer.[510]
The Statute of Limitations 1957 set a new, six-year limitation period
for actions in the case of successive conversions or detention of a
chattel. The new limitation period runs from the date of accrual of the
cause of action in respect of the original wrongful conversion or detention.[511] This is subject to the provisions
of the Statute which govern actions to recover settled chattels.[512]
2.105
The expiry of the
six-year limitation period for bringing an action for conversion or wrongful
detention extinguishes the title of the chattel concerned.[513]
This represents a change in the law, as it was previously the case that only
the right of action was barred at the expiry of the limitation period.[514]
2.106
Although the Statute
of Limitations 1957 applies to actions to recover seamen’s wages, it does
not apply to any cause of action that falls within the admiralty jurisdiction
of the High Court, which is enforceable in rem (against the ship).[515]
2.107
Salvage claims were
formerly governed by the Maritime Conventions Act 1911, which set a
two-year limitation period for such claims. The limitation period began
to run on the date on which the damage, loss or injury was caused or the
salvage services were rendered.[516]
This provision was however repealed by the Civil Liability Act 1961[517] and replaced with a two-year limitation
period applicable to actions to enforce a claim for damages or lien in respect
of damage caused to a vessel, cargo or property on board a vessel, or loss of
life or personal injury suffered by any person on board. The limitation
period runs from the date on which the damage, loss of life or injury was
caused.[518]
2.108
In an unusual
innovation in terms of limitation periods at that time, the 1961 Act grants the
courts discretion to extend the two-year limitation period to such extent and
subject to such conditions as the courts see fit[519]
(a similar discretionary power is included in s.38 of the Defamation Act
2009). Additionally, if the court is satisfied that there has not been,
during the two-year limitation period, any opportunity of arresting the
defendant vessel within the jurisdiction of the court or within the territorial
waters of the country to which the plaintiff’s vessel belongs or in which the
plaintiff resides or has his principal place of business, the court must extend
the limitation period to an extent sufficient to give the plaintiff this
reasonable opportunity.[520]
2.109
An action for any claim
for contribution in respect of an overpaid proportion of any damages for loss
of life or personal injuries must be commenced within one year from the date of
payment.[521]
2.110
Two or more persons may
be ‘concurrent wrongdoers’ when they are both or all responsible for the same
damage to the injury person.[522]
A concurrent wrongdoer may recover a contribution from any other wrongdoer who
is or would have been liable, if sued, in respect of the same damage.[523] An action for a contribution must
be brought within the greater of the following limitation periods:
i)
Such period of time as
the injured person is allowed by law for bringing an action against the
contributor, or
ii)
Within two years
after the liability of the concurrent wrongdoer who is seeking the contribution
is ascertained, or
iii)
Within two years
after the injured person's damages are paid.[524]
2.111
Section 3 of the Statute
of Limitations 1957 governs the application of the Statute to the
State. Pursuant to section 3(2)(1) of the Statute, the provisions of the
Statute do not apply to the following actions:
·
Proceedings for any sum due in respect of a tax or
duty that is (for the time being) under the care or management of the Revenue
Commissioners, or any interest due on such sums;
·
Proceedings for the recovery of any fine, penalty or
forfeiture incurred in connection with any tax or duty which is for the time
being under the care and management of the Revenue Commissioners;
·
Forfeiture proceedings under the Customs Acts
or the Acts which relate to the duties of excise and the management of those
duties.
2.112
It is beyond the remit
of this Consultation Paper to examine each and every limitation period
applicable to revenue actions. The discussion below is merely a flavour of the
limitation periods that might be most relevant to individual taxpayers. It
should be noted that in other jurisdictions, special considerations have been
found to apply to actions to recover tax such that these actions should not be
subject to a core limitations regime.
2.113
A six-year limitation
period applies to actions to recover penalties incurred.[525]
A three-year limitation period applies to actions to
recover penalties incurred by a person who has since died, running from the
year in which the deceased person died in a case in which a grant of probate or
letters of administration were made in that year. A two year limitation
period applies where such grant was made in any other case. These
limitation periods are subject to the proviso that where the personal
representative lodges a corrective affidavit for the purposes of assessment of
estate duty after the year in which the deceased person died. In such
cases, the proceedings must be commenced within two years of the year in which
the corrective affidavit was lodged.[526]
2.114
A four-year limitation
period applies to the making of an estimation by the Revenue Commissioners in
respect of tax payable by an accountable person, in respect of any taxable
period commencing on or after 1st May, 1998; a six-year limitation
period applies to the making of an estimation in respect of any taxable period
commencing before that period.[527]
This represents a reduction from the six and ten year limitation periods
applicable up to 2003 to those taxable periods, respectively.[528]
2.115
These limitation
periods runs from the end of the taxable period to which the estimate relates
or, where the period in respect of which the estimate is made consists of two
or more taxable periods, the end of the earlier or earliest taxable period
comprised in such period.
2.116
No limitation period
applies in either case to the making of an estimation where any form of fraud or neglect has
been committed by or on behalf of any person in connection with or in relation
to tax; in such cases, an estimation may be made “at any time for any period
for which, by reason of the fraud or neglect, tax would otherwise be lost to
the Exchequer.”[529]
2.117
A four year period
applies in respect of actions by taxpayers seeking a refund of tax. This
represents a reduction from the ten year period that previously applied.[530]
2.118
Under the Malicious
Injuries Act 1981,[531] if damage exceeding a particular sum is
maliciously caused to property in certain circumstances, the person who suffers
the damage is entitled to claim compensation from the local authority.[532] A preliminary notice of intention
to apply for compensation must be served within fourteen days of the damage
being caused.[533]
The date of service of this notice is treated as the date of accrual of the
cause of action,[534]
and proceedings must be commenced within three years of this date.[535] The running of the limitation
period will be postponed in the event of disability in accordance with section
49 the Statute of Limitations 1957.[536]
2.119
The limitation periods
applicable to actions to recover land are governed by section 13 of the Statute
of Limitations 1957. The limitation periods set out in that section apply
to registered land as they do to unregistered land.[537]
Different limitation periods apply depending on whether the action is taken by
a “State authority”[538]
or by a person other than a State authority, and also depending on whether or
not the land is foreshore.[539]
2.120
Actions to recover land
by a person other than a State authority are subject to a 12-year limitation
period, running from the date of accrual.[540]
This reflects the rule that applied prior to the commencement of the Statute.
As seen above, the 12-year period represents a reduction from the 20-year
period that had been fixed under the Limitation Act 1623 and which was
applicable until the coming into force of the Real Property Limitation Act
1874.
2.121
Actions to recover land
(except foreshore) by a Statute authority are subject to a 30-year limitation
period, running from the date of accrual.[541]
This represents a reduction from the 60-year limitation period that applied
prior to the commencement of the Statute.[542]
The Oireachtas initially considered the application of a 40-year limitation
period to such actions, so as to accord with the requirement at that time that
the vendor of land on an open contract show 40 years’ title,[543]
but the 30-year period was introduced so as to be in line with the English
model.[544]
It is notable that the 40 years title requirement has been reduced to 15 years
in the Land and Conveyancing Law Reform Act 2009.
2.122
Actions by a State
authority to recover land that is foreshore are subject to a 60-year limitation
period, again running from the date of accrual.[545]
This is the same period as applied prior to the commencement of the Statute.[546] The retention of this very
lengthy limitation period has been explained in terms of a greater public
interest in the right to recover foreshore.[547]
It is possible that the 60-year limitation
period derives from the pre-1874 situation where all actions by the Crown to
recover land were, under the Nullum Tempus Acts, subject to a 60-year
limitation period, given that a vendor of land on an open contract was obliged,
at that time, to show 60 years’ title.
2.123
Land may, of course,
cease to be foreshore but remain in the ownership of the State. If a
right of action to recover this land accrues before the land ceases to be
foreshore, a dual limitation period applies: the limitation period runs either
for 40 years from the date on which it ceased to be foreshore, or for 60 years
from the date of accrual, whichever period expires first.[548]
2.124
With respect to the
date of accrual of an action to recover land by a State authority, there are
three relevant dates:
i)
Before December 6,
1922: when the action accrued to the Crown;
ii)
Before December 29,
1937: when the action accrued to Saorstát Eireann;
iii)
Before January 1, 1959:[549] when the action accrued to the State. [550]
2.125
In each case, the
action is deemed to have accrued to a “State authority” on the date on which it
accrued to the relevant party, i.e. the Crown, Saorstát Eireann, or the State.
2.126
Given that the longest
period for the commencement of an action to recover land is 60 years, the
accrual of a cause of action before the formation of the State cannot now be
said to be relevant, particularly in the absence of a generally-applicable discoverability
test.
2.127
Despite the convergence
of common law and equity, there remain in Ireland both legal and equitable
estates in land. Likewise, there remain both common law and equitable
remedies. The provisions of the Statute of Limitations 1957 apply
to equitable estates in land, including interests in the proceeds of the sale
of land held upon trust for sale, in the same manner as they apply to legal
estates in land.[551]
Actions to recover equitable estates in land accrue to the person entitled in
possession to an equitable estate in land in the same manner and circumstances
and on the same date as it would accrue if his or her estate were a legal
estate in the land.[552]
These principles also apply to actions to recover settled chattels.[553]
2.128
A six-year limitation
period applies to actions brought or distress made to recover arrears of
rentcharges,[554]
conventional rent,[555]
or annuities charged on personal property.[556]
These limitation periods run from the date on which the arrears fall due.[557]
2.129
The Statute also
sets a six-year limitation period for actions brought or distress made to
recover arrears of dower.[558]
At the time of enactment of the Statute, a widow had a right of dower
over one-third of her husband’s land held for estates of inheritance (i.e. fee
simple, fee tail), provided that her children could inherit them.[559] Dower has since been abolished[560] but the limitation period for
actions to recover arrears of dower remains on the statute-book.
2.130
In addition, the Statute
set a six-year limitation period for the issue of a warrant by the Land
Commission to the relevant county registrar or sheriff to levy arrears of money
due and payable by a defaulter.[561]
The limitation period ran from the date on which the amount of money became due
and payable,[562]
and the warrant would remain in force for a maximum of six years from the
date of issue.[563]
Thus, the warrant would cease to be force after six years and the Land
Commission could not recover any more than six years’ annuities on a warrant
issued. The Land Commission ceased to acquire land in 1983 and was
dissolved on 31 March 1999 pursuant to section 2 of the Irish Land
Commission (Dissolution) Act 1992.[564]
The administrative functions of the Land Commission were transferred to the
Department of Agriculture and its judicial functions were transferred to the
President of the High Court.[565]
The provisions of the Statute of Limitations 1957 governing the
grant of a warrant by the Land Commission have not been repealed.
2.131
Sections 32 to 42 of
the Statute of Limitations 1957 govern the limitation of actions in
respect of mortgages and charges. Under section 2(1) of the Statute, a
‘mortgage’ includes an equitable mortgage and a judgment mortgage. The
term “mortgagor” and “mortgagee” and similar terms are construed
accordingly.
2.132
Part 9 of the Land
and Conveyancing Law Reform Act 2009 makes fundamental changes to the
substantive law in this respect,[566]
by making a charge the sole method of creating a legal mortgage. When the
2009 Act comes into force,[567]
mortgages by conveyance or assignment of the borrower’s estate or interest in
the land, or by demise in the case of leasehold land, will be abolished, so
that it will no longer be possible to create a legal mortgage. Mortgages
created prior to the coming into force of the 2009 Act will continue to be
covered by the pre-2009 law under which the mortgage formed part of the title
to the land.
2.133
In the event of
non-payment of a mortgage debt by the mortgagor, the mortgagee gains the right
to enforce the security. This includes the right to possess, to appoint a
receiver, and/or to sell.[568]
The mortgagee may also have a personal action for debt against the mortgagor
where a loan has been made.[569]
For the purpose of limitation, there is an important distinction between the
date on which these powers vest in the mortgagee (i.e. the legal date for
redemption), and the date when the mortgagee can exercise those powers, which
is usually when some default by the mortgagor occurs.
2.134
Limitation periods are
established under the Statute in respect of the following actions by
mortgagees to enforce their security:[570]
i.
For delivery of
possession of land;[571]
– 12 years
ii.
Claiming sale of land:
1.
Actions by State
authorities – 30 years[572]
2. Actions by persons other than State
authorities – 12 years[573]
iii.
To recover principal
money secured by:
1. A mortgage or charge on property;[574]
2. Various mortgages involving the
State – 30 years[575]
iv.
To recover arrears of
interest on a mortgage or charge – 6 years[576]
v.
In respect of personal
rights over the land – 12 years[577]
vi.
To recover arrears of
interest on a chattel mortgage – 6 years.[578]
2.135
The Commission has
recommended that the current approach to the mortgagee’s remedies should be
changed to reflect modern practice, and has suggested that in future, the
remedies available to mortgagees should be based firmly on the security
interest of the mortgagee and should not be exercisable unless and until it
becomes necessary to protect that security or to realise it in order to obtain
repayment of the outstanding debt, including interest.[579]
Sections 96 to 111 of the Land and
Conveyancing Law Reform Act 2009, when brought into force, [580] will implement these
recommendations and will govern the obligations, duties and rights of
mortgagees, particularly the remedies available to enforce the mortgagee’s
security.[581]
2.136
Sections 34 and 35 of
the Statute govern the limitation of actions by mortgagors to redeem
mortgaged land that is in the possession of the mortgagee. The legal date
of redemption is generally specified in the terms of the mortgage. The right to
redeem accrues to a mortgagor on the legal date of redemption specified in the
mortgage. Equity plays a particular role in actions of redemption. The
role of equity has been to ensure that the mortgagor can redeem the mortgage
even after the legal date of redemption has passed. It has become common
practice for mortgage deeds to specify a short legal date for redemption (i.e.
3 or 6 months after taking out the mortgage), with the mortgagor thereafter
having to rely on the equity of redemption,[582]
which means that “the mortgagor is entitled to get back him property as free as
he gave it, on payment of principal, interest and costs, and provisions
inconsistent with that right cannot be enforced.”[583]
2.137
Under section 34(1)(a)
of the Statute, a 12-year limitation period applies to actions by a
mortgagor to redeem his title to land. This runs from the date on which
the mortgagee enters into possession of the mortgaged land. Under section 34,
where a mortgagee has been in possession of any of the mortgaged land for 12
years, the mortgagor (or any person claiming through the mortgagor) cannot
bring an action to redeem the land. The mortgagor must, therefore, bring an
action to redeem his title to the land within 12 years of the mortgagor entering into possession thereof. This is an
exception to the general rule that in order for the limitation period to start
running, there must be adverse possession of the land.[584]
2.138
The 12 year limitation
period begins to run anew from the date of acknowledgement by the mortgagee of
the title of the mortgagor,[585]
and/or from the date on which the mortgagee receives any payment in respect of
the principal or interest of the mortgage debt. [586]
2.139
Welsh mortgages are
a form of possessory security whereby the mortgagee retains possession of the
mortgaged land and retains any rents and profits from that land until the
capital is repaid or, alternatively in lieu of the repayment of the capital.[587] A 12 year limitation period applies
in respect of actions to redeem land that was subject to a Welsh mortgage, but
only where that mortgage provided that the rents and profits were to be applied
in reduction of the principal moneys and interest. This limitation period
commences only after all the interest and principal moneys have been satisfied.
It follows that where a mortgagee has been in possession of the land for a
period of 12 years after this date, the mortgagor (or any person claiming
through the mortgagor) cannot thereafter bring an action to redeem the land.
So, the mortgagor must bring an action to redeem the land within 12 years of
all the interest and principal moneys being satisfied.[588]
2.140
Section 88 of the Land
and Conveyancing Law Reform Act 2009, when brought into force,[589] will implement the Commission’s
recommendation to abolish Welsh mortgages,[590]
deeming them “inconsistent with the trust purpose of a mortgage.” [591]
2.141
The accrual of actions
to recover certain interests in land (such as present or future interests) is
governed by sections 14 to 17 of the Statute. These sections set
out the earliest date, in each case, when an action may be brought. It is
from this date that the limitation period is to run.[592]
2.142
Under the Statute,
in order for a right of action to recover the land to have accrued there must
be adverse possession of land.[593]
Put another way, the doctrine of adverse possession dictates that a
limitation period will not begin to run against a plaintiff and in favour of a
defendant until possession that is adverse to that of the owner of land is
taken by some person in whose favour the limitation period can run. As a
general rule, twelve years of uninterrupted adverse possession of land will
result in the dispossession of the original owner of the land. No right
of action will be deemed to have accrued unless and until adverse possession is
taken of the land where: [594]
i)
A right of action to
recover land is deemed to accrued on a certain date, and
ii)
No person is in adverse
possession of the land on that date.
2.143
The definition provided
in the Statute covers all cases of possession.[595]
Adverse possession may be found in non-payment of the rent by a person in
possession of land subject to a rent-charge (adverse possession of the
rent-charge), or receipt of rent under a lease by a person wrongfully claiming the reversion of land (adverse
possession of the land).[596]
This represents a change in the law as it was prior to the coming into force of
the State. Where the land ceases to be in adverse possession after the right of
action has accrued and before the right of action is statute-barred, the right
of action is no longer deemed to have accrued.[597]
Acknowledgements have a significant effect on the rights of the person who is
in adverse possession of land: if someone in adverse possession indicates that
they recognise that the dispossessed person is the lawful owner of the land,
this is inconsistent with their own adverse title to the land. This acknowledgement
destroys their possessory title up to that point, and time begins to run afresh
in their favour.[598]
Part payment of a debt secured on land may start time running again.[599] Thus, it may be said that
very little action on the part of a land-owner is required in order to stop
time running.[600]
2.144
It is noteworthy that
in proceedings before the Grand Chamber of the European Court of Human Rights
in Pye (Oxford) Ltd v United Kingdom, the Irish Government , who
intervened to make submissions in the case, identified the following five areas
of public interest that are served by the doctrine of adverse possession:
i)
In quieting titles,
that is, the desirability of clarifying title where land, whether registered or
unregistered, had remained abandoned and was occupied by another person;
ii)
In cases of failure to
administer estates on intestacy;
iii)
In pursuance of a
policy of using land to advance economic development;
iv)
In perfecting title in
cases of unregistered title, and
v)
In dealing with
boundary disputes.[601]
2.145
The Commission has
previously expressed the view that the doctrine of adverse possession to be
“one of the most controversial features of modern land law.”[602]
The Commission is engaged in a separate project on adverse possession[603] and will deal with this area in more
detail in that context.
2.146
In the event of a
breach of trust, beneficiaries may seek to bring an action against trustees.[604]
Section 2(2) of the Statute of Limitations 1957, as amended,
relates to the interpretation of the term “trustee.”[605]
Both express and constructive trustees are brought within the terms of the Statute.
Personal representatives of deceased personal are not, in that capacity,
“trustees” for the purpose of the Statute.[606]
2.147
The limitation of
actions to recover money or other property in respect of a breach of trust is
regulated by section 43 of the Statute, provided that no other
period of limitation is fixed elsewhere for that action. Such
actions must be brought against a trustee (or another person claiming through
the trustee) within six years from the date of accrual.[607]
The action accrues to a beneficiary entitled to a future interest in trust
property only when the interest falls into the beneficiary’s possession.[608]
2.148
No beneficiary against
whom there would be a good defence under section 43 may derive any greater or
other benefit from a judgment or order obtained by another beneficiary than he
could have obtained if the beneficiary had brought the action and the Statute
had been pleaded in his or her defence.[609]
No limitation period applies to an action against a trustee (or a person claiming
through a trustee) in the following situations:
(a) Where
the claim is founded on any fraud or fraudulent breach of trust to which the
trustee was party or privy, or
(b) Where
the claim is to recover trust property or the proceeds thereof still retained
by the trustee or previously received by the trustee and converted to his own
use.[610]
2.149
This continues the rule
of perpetual liability, which was applicable in equity to express trusts.[611]
2.150
Part 4 (sections 18 to
22) of the Land and Conveyancing Law Reform Act 2009, which implemented
the views of the Commission in this area, [612] greatly simplifies the law
concerning the various ways in which settlements of land can be created. As a
result, the Settled Land Acts 1882 to 1890 are to be repealed in full by
the 2009 Act,[613]
and some consequential changes concerning the 1882 to 1890 Acts are likely to
follow.[614]
2.151
Part XI of the Succession
Act 1965 made
various changes to the law governing the limitation of actions in respect of
the estates of deceased persons.[615]
The limitation periods currently applicable to these succession actions are
generally shorter than the limitation periods applicable to living plaintiffs
and defendants. The courts have noted that there are reasons why the
administration of estates should not be delayed beyond a reasonable time.[616] For example, as noted by the
Supreme Court:-
“Bearing in mind the State's duty to others—in particular those who
represent the estate of the deceased, and beneficiaries—some reasonable
limitation on actions against the estate was obviously required.”[617]
2.152
A testator’s children
are not entitled to a fixed percentage of their parent’s estate.
Nevertheless, parents have a “moral duty” to make proper provision for the
child in accordance with their means, whether by will or otherwise.[618] A testator’s child may apply to
the courts under section 117 of the Succession Act 1965 seeking an order
that provision be made for them out of the estate. Such an order may be
made only if the court is of the opinion that the testator has failed in this
moral duty.[619]
2.153
Initially, the Succession
Act set a 12-month limitation period for the bringing of a section 117
application, running from the date on which representation is taken out on the
estate.[620]
This has since been reduced to six months,[621]
drafted so as to prevent the courts from making an order under section 117 if
proceedings are issued out of time, even if the defendant does not specifically
rely on the limitation defence. Indeed, it appears that both the right
and the remedy are barred after the expiry of the limitation period.[622]
2.154
Almost two decades ago,
following the decision in MPD & Ors v MD[623]
and before the reduction of the limitation period from twelve to six
months, the Commission made proposals for the reform of the limitation period
applicable to section 117, and expressed the view that there is a
distinct possibility that section 117(6) would not withstand a constitutional
challenge. The Commission further observed as follows:-
“Since the
right of a child to apply under s.117 is undoubtedly a property right, it is
difficult to see how the imposition of a one year time limit in the case of an
infant child can be other than an unjust attack on that right.”[624]
2.155
The Commission
acknowledged that the strict (then 12-month) time limit seeks to secure the
desirable aim of ensuring speedy distribution of estates but noted that this
aim has been given priority over the at least equally laudable object of
ensuring that parents cannot opt to fail to provide properly for their children
in their wills. We considered that the need to enable estates to be distributed
without unreasonable delay has been given too great a priority in this
situation.[625]
2.156
The Commission compared
the section 117 limitation period to the unfettered discretion accorded to the
English courts in an analogous situation. While a six-month limitation period
runs from the date on which representation is first taken out, the English
courts may give permission for an application for provision to be made after
that limitation period has expired.[626]
2.157
The Commission rejected
the introduction a longer, fixed limitation period and recommended that the
courts should be given discretion to extend the (then 12-month) limitation
period under section 117(6). The vast majority of submissions received on
the subject favoured this option. The Commission considered that this
discretion should be confined to “the limited number of cases which give rise
to concern, that is, for example, not just because a child did not consult
solicitors in time or was unaware of the time limit.” The Commission
rejected the possibility of the discretion being exercisable only where the
child was under a disability at the time of death.[627]
2.158
The Commission’s
recommendations have not yet been implemented. Instead, as noted above, the
legislature has opted to reduce the limitation period even further. This
increases the urgency of the Commission’s observations and recommendations.
Section 117 protects children against neglect and disinheritance, and ensures
that dependants are provided for and that the State is not burdened with the
cost of supporting them.[628]
The Supreme Court has described this section as “a most important part” of
family law.[629]
2.159
Neither the personal
representative nor the beneficiaries’ solicitor has a duty to inform the
testator’s children when the grant issues.[630]
The children may, therefore, be totally unaware of their right to make an
application under section 117. Moreover, an infant child in the care of a
beneficiary under the will is in a very precarious position because any
pecuniary advantage accrued by the child may reduce the guardian’s own gift
under the will.[631]
2.160
It might, however, be
unwise for a personal representative to notify children of their right to make
an application under s. 117. It has been argued that the personal
representative would be imprudent (particularly if he was a professional
executor) to give such notice, as this “would to some extent frustrate the
directions contained in a will, and would prejudice beneficiaries thereunder to
whom the executor would be accountable.”[632]
2.161
The Commission
previously rejected a submission that the personal representative should have a
duty to inform the children (or their parents or guardians) of their right to
apply under section 117, considering that such an obligation would impose an
unfair burden on personal representatives in that it could require than to make
enquiries of the known next-of-kin as to the possible existence of others.[633] This approach was also taken by
the High Court in Rojack v Taylor & Buchalter.[634]
2.162
Two remedies are
available for this problem: the children, their parents or guardians could seek
an undertaking from the solicitor to notify them when the grant issues or they
could conduct periodic searches in the Probate Office or District Probate
Registry.[635]
2.163
The disability and
infancy provisions of the Statute generally postpone the running of the
limitation period for actions in respect of a claim to the estate of a deceased
person or to any share in such estate[636]
but these safeguards do not apply to section 117 applications.[637] As a result, infants or persons
under a disability are unable to make a section 117 application after six
months from the raising of representation. This creates a potential
injustice, as the infant or disabled person’s next friend – usually a parent or
guardian – may well have a conflicting interest. If the disability
provisions were to apply, the period of limitation would be extended to six months
after the disability or infancy ended. The estate would therefore be open to
claims on behalf of the deceased’s children until six months after the
deceased’s children’s infancy and/or disabilities ended.[638]
2.164
In MPD v MD, Carroll
J. accepted that there are “compelling reasons” why the disability provisions
should mitigated the short section 117 limitation period, but she also noted
that there are good reasons why the administration of an estate should not be
delayed.[639]
Other commentators have suggested that the lack of mitigation of the short
limitation period may have been an oversight.[640]
2.165
The Supreme Court has
stated that the application of disability provisions “could mean that the
administration of an estate might be greatly delayed or, alternatively, that
after many years those entitled on a death might be subjected to a claim for
damages of which there had been no prior notice. Obviously in such
circumstances severe hardship might be caused and injustice done to innocent
people.”[641]
The Court added that “the danger of stale claims being brought would be very
real and could constitute a serious threat to the rights of beneficiaries of
the estate of a deceased.”[642]
2.166
In its 1989 Report
on Land Law and Conveyancing Law, the Commission rejected
submissions that an application could be taken during a period ending a year
after the expiry of a disability.[643]
2.167
According to the
current law of succession, if a testator dies leaving a spouse and no children,
the spouse is legally entitled to one half of the estate, irrespective of the
contents of any will.[644]
If a testator dies leaving a spouse and children, the spouse has a legal right
to one third of the estate, irrespective of the contents of any will.[645] Actions in respect of the legal
right share are subject to a six-year limitation period.[646]
The accrual of the limitation period depends on the time at which the spouse
makes his or her ‘election’ in respect of the legal right share or a benefit
left in the will.[647]
This election must be made within six months of written notification being
received by the spouse from the personal representative of the right to elect,
or within one year of the first taking out of representation to the estate,
whichever is later.[648]
2.168
The limitation period
runs from the date on which the spouse makes an election or the spouse has been
notified of the right to make an election and the time within which an election
may be made has elapsed. It is only at this point that the right to receive the
legal right share accrues.[649]
Where the testator’s will includes no legacy or devise in favour of the
spouse, however, or includes a legacy or devise stated to be in addition to the
legal right share, the spouse has no right of election and the legal right
share is deemed to vest automatically in the spouse on the testator’s death.[650]
2.169
Once a couple is
granted a decree of divorce, the marriage is dissolved and the Succession
Act ceases to function in their regard as a married couple.[651] A divorce does not, however,
necessarily represent a clean break from inheritance rights. Under section 18
of the Family Law (Divorce) Act 1996 the courts may order provision for a
divorced spouse out of the estate of their deceased former spouse, having
regard to the rights of any other person having an interest in the matter, if
it is satisfied that proper provision in the circumstances was not made for the
deceased’s surviving former spouse during the lifetime of the deceased.[652] Applications under section 18 must be
made no longer than six months after representation is first granted in respect
of the estate of the deceased person.[653]
This right also extends to a spouse whose spousal inheritance rights are
extinguished following a judicial separation, pursuant to section 15A of the Family
Law Act 1995.[654] No application can be made
in either case, however, after the re-marriage of the applicant spouse.[655]
2.170
The personal
representative of the deceased spouse has a statutory obligation to “make a
reasonable attempt” to bring his or her death to the attention of the divorced
spouse.[656]
The applicant (divorced) spouse has a statutory obligation to notify the
personal representative within one month of receipt of notice, of his or her
intention to make a section 18 application.[657]
This may be contrasted to the situation in which the children of a deceased
person find themselves, under section 117 of the Succession Act.
2.171
Section 125 of the Succession
Act 1965 regulates the acquisition of title to land of two or more of the
next of kin or others who are entitled to land under a will or the intestacy of
the owner of the land.[658]
This section applies where two or more people are entitled to an (equal or
unequal) share in land comprised in the estate of a deceased person.
2.172
Where any or all of the
beneficiaries enter into possession of the land, they are deemed to have
acquired title by possession as joint tenants (not as tenants in common) with
respect to their own shares and with respect to the shares of those who do not
enter into possession of the land (if any).[659]
In Maher v Maher,
O’Hanlon J. held that this section enacted the common law as it existed at
passing of the Succession Act.[660]
This view boosted by the Supreme Court’s decision in Gleeson v Feehan (No.
2).[661]
2.173
At common law, the
personal representatives of a deceased person could not sue or be sued for any
tort committed against or by the deceased.[662]
This remained the case until the early 20th century.[663] Now, most causes of action vested
in the deceased person on his death will survive for the benefit of or against
the deceased’s estate[664]
and the personal representative may sue or be sued on behalf of the estate for
such actions.[665]
2.174
The limitation of
actions taken by a personal representative in respect of property (whether
realty or personalty) that is alleged to form part of the deceased person’s
estate is governed by the general limitation periods set out in Statute of
Limitations 1957.[666]
Thus, for example, the time-limit for a personal representative to bring an
action to recover property belonging to the estate is twelve years from the
date on which the cause of action first accrued.[667]
The date of accrual is the date of death of the deceased person.[668]
2.175
Actions to recover
arrears of interest in respect of a legacy or damages in respect of such
arrears must be brought within three years from the date on which the interest
became due.[669]
As enacted, the Statute of Limitations set a six-year limitation
period for such actions, but this was reduced by the Succession Act 1965.[670]
2.176
Beneficiaries who are
seeking to establish a share or interest in the estate of a deceased person
must initiate their action within six years of the deceased person’s date of
death.[671]
This applies irrespective of whether the share or interest is claimed under a
will, on intestacy, or as a legal right share under section 111 of the Succession
Act 1965. This limitation period was initially 12 years in length,
but was reduced by the Succession Act 1965.[672]
This limitation period applies to actions in respect of realty and
personalty,[673]
and is subject to postponement in cases of fraud.[674]
It applies to actions by beneficiaries against personal representatives or
against those who were wrongfully paid or who wrongfully received that to which
the beneficiary is entitled.[675]
It does not apply to actions by personal representatives on behalf
of the estate.[676]
2.177
The six year limitation
period applicable to actions by beneficiaries runs from “the date when the
right to receive the share or interest accrued”.[677]
It is not immediately clear at what stage the right to receive a share or
interest accrues.[678]
Where there is a will, and an executor is appointed, time runs from the date of
death, because proceedings may be commenced against an executor from the date
of death.[679]
In the case of intestacy, or a testacy where there is no executor, time runs
from the date of death even if representation has not been raised.[680]
2.178
There are two possible
interpretations of the date of accrual for a beneficiary’s action against a
personal representative. The first option is that the action accrues on
the date of death because the issuing of the grant dates back to this date,
even though no action can be commenced by the beneficiaries during the
“executor’s year” without leave of the court.[681]
If this option is correct, the beneficiaries have six years from the date
of death, and five years from the date of expiry of the “executor’s year”. The
second option is that the action accrues at the date of expiry of the
“executor’s year”, and the six-year limitation period begins to run at that
point.[682]
2.179
The personal
representative of a deceased person has an obligation to distribute the estate
as soon after the date of death as is reasonably practicable.[683] In addition, he or she owes a
duty of diligence to creditors and beneficiaries when administering and
distributing the estate.[684]
Beneficiaries may take an action against personal representatives in respect of
a failure to administer and distribute an estate. A shorter period of time applies to
such actions, however, than that which applies to actions by personal
representatives on behalf of the estate.[685] Actions by beneficiaries against personal
representatives cannot be commenced until the expiry of one year from the date
of death.[686]
Proceedings may only be commenced within this period with leave of the
court.[687]
This twelve-month period is traditionally known as “the executor’s year”.[688] In reality, the personal
representative may not have a year at all, depending on the date of the grant
of probate.
2.180
Creditors of a deceased
person may bring proceedings against the personal representative before the
expiration of one year from the date of death.[689]
2.181
As enacted, the Statute
provided that no limitation period applied to an action against a personal
representative where the claim was founded on any fraud to which the personal
representative was party or privy.[690]
This provision was repealed,[691]
but the limitation period for actions against personal representatives is still
subject to the provisions of the Statute that govern the postponement of
the running of the limitation period in cases of fraud or concealment.[692]
2.182
There appears to be a
lack of consistency in the law governing the limitation of actions by
beneficiaries and actions by personal representatives: a much shorter
time-limit applies to the former when compared with the latter. After six years
have expired after the date of accrual, the beneficiary’s claim is
statute-barred. Nevertheless, the personal representative’s action to
recover the deceased person’s property is not yet statute-barred for a further
number of years. Thus, the personal representative may be able to recover
property without being compellable to account for it to the beneficiaries.[693] This is problematic, particularly given
that personal representatives will often also be beneficiaries. This
“dual-capacity” may create confusion, particularly where the limitation period
has run out for other beneficiaries to bring a claim against the personal representative.[694] There is, therefore, a difficulty
with the law in this respect.[695]
2.183
A personal
representative is not prevented from acquiring a concurrent interest in land
for the purpose of the limitation of actions.[696]
It is possible that a personal representative might be in adverse possession of
land belonging to the estate of the deceased. After twelve years, there is
nothing to stop the personal representative from seeking to obtain title by
adverse possession.[697]
The current six-year limitation period does not allow beneficiaries to prevent
the personal representative from acting in this way. Beneficiaries may remedy
this situation by seeking acknowledgement of their’ interest in the land before
the expiry of the initial six-year period; such acknowledgment gives rise to a
fresh accrual of their right of action against the personal
representative. Alternatively, the beneficiaries may attempt to prove
fraud or concealment on the part of the personal representative; this would
postpone the running of the limitation period, but may be difficult to prove.[698]
2.184
The Commission
published recommendations in 2003 with respect to claims involving a deceased’s
estate,[699]
wherein it recommended that the time limit for bringing actions in respect of
any claim to the estate of a deceased person or in respect of any share or
interest in the estate should begin to run from the date of death. This
recommendation was influenced by the fact that the date of death is fixed,
easily ascertainable, and is not dependent on a range of contingencies.[700]
2.185
The Commission also
recommended that the six-year limitation period applicable to actions by
beneficiaries should be extended to 12 years. This limitation period
would be the same as that applicable to actions by personal representatives,
which would lead to greater simplicity. It would also create consistency
as it would align the limitation of actions to recover land forming part of the
estate of a deceased person with the general law on adverse possession.[701]
2.186
The Commission rejected
the option of reducing the limitation period for all actions for the recovery
of property forming part of the estate of a deceased person to six years.
It was thought that this would confer an unfair advantage on a squatter, who
could obtain title by adverse possession in half the normal time simply because
the owner of the land was deceased.[702]
2.187
Certain
commentators have agreed with the Commission’s proposals.[703]
It has been suggested, however, that a policy of reducing the time limit would
be more in keeping with the general policy against delay in the administration
of estates. Thus, it has been argued that instead of increasing the limitation
period for actions by beneficiaries to twelve years, the limitation period for
actions by personal representatives should be reduced to six years.[704] This proposal was based on the
following experience:
“[…] beneficiaries are not coy when it comes to claiming shares or
interests in estates, and any tardiness by executors or by persons entitled to
apply for grants under the Rules of the Superior Courts may be remedied by the
existent citation process or by action against the personal representatives for
breach of duty to administer the estate; beneficiaries are rarely undone by
sloth.”[705]
2.188
Most causes of action
vested in the deceased person on his death will survive for the benefit of the
deceased’s estate. The Statute of Limitations 1957 and the Civil
Liability Act 1961 set the limitation periods for actions that survive
death. Not all claims survive for the benefit of, or against the
estate. The following ‘excepted actions’ set out in the Civil
Liability Act 1961 - most of which have been abolished - do not
survive death:[706]
(1) Breach of promise to marry (now repealed);[707]
(2) Inducing one spouse to leave or remain apart from the other spouse (now
repealed);[708]
(3) Criminal conversation (now repealed);[709]
(4) Claims for compensation under the (now repealed) Workmen’s Compensation
Act 1934;[710]
(5) Seduction;[711]
(6) Defamation.[712]
2.189
There follows a
discussion of the limitation periods that apply to actions that do survive the
death of the potential plaintiff / defendant.
2.190
Where a person dies as
a result of tortuously inflicted personal injuries[713]
within two years of the injuries being inflicted, an action may be brought for
the benefit of the deceased person’s estate.[714]
The two year limitation period runs from the later of (a) the date of death or
(b) the date of the personal representative’s knowledge.[715]
Even where the personal representative gains knowledge of the personal
injury before his appointment as the personal representative of the deceased,
the date of knowledge is taken to be the date of his appointment,[716] as it is only from this point that he
or she is under a duty to take steps in respect of the right of action.
2.191
Fatal injuries actions
arise where the death of a person is caused by the wrongful action of another,
and the deceased person would have been entitled to maintain an action and
recover damages, but for his death.[717]
In such circumstances, a fatal injuries action may be commenced seeking damages
for the benefit of the dependants of the deceased person.[718]
The limitation period in respect of such actions is two years, running from (a)
the date of death or (b) the date of knowledge of the person for whose benefit
the action is brought, whichever is later.[719]
Until 2004, this limitation period ran for three years.[720]
The current, two-year period accords with the limitation period for personal
injuries actions.[721]
2.192
Only one fatal injuries
action may be brought against the defendant.[722]
The action may be brought by the personal representative of the deceased
person.[723]
If the personal representative has not brought an action within six months
after the death, or no personal representative has been appointed during that
time, an action may be brought by all or any of the dependants.[724]
2.193
Where an action for
fatal injuries is brought for the benefit of multiple dependants, the
limitation period will run separately for each dependant. Thus, the fact
that the limitation period applicable to one dependant has expired will not
prevent an action being taken for the benefit of another dependant in respect
of whom (for example, by reason of disability) the limitation period has not
expired.[725]
2.194
Causes of action
subsisting against the deceased person on the date of his death will survive
against his estate.[726]
Claims surviving against the deceased person’s estate are subject to a two-year
limitation period, running from the date of death or the expiry of the
“relevant limitation period”, whichever expires first.[727]
The “relevant limitation period” is the length of time that has been prescribed
by the Statute of Limitations 1957, or other limitations legislation.[728]
2.195
This limitation period
cannot be postponed in the event of disability or infancy. The constitutionality
of this strict rule was upheld by the Supreme Court in Moynihan v Greensmyth.[729] In the High Court, Murnaghan J.
observed that as a result of his very extensive experience in dealing with
cases in which infants were plaintiffs, he could say with reasonable certainty
that the number of infants who failed to commence their proceedings on time was
“infinitesimal” compared to the number of infant cases commenced on time.[730] Murnaghan J. accepted that if the
two-year limitation period could be postponed in the event of infancy, in an
extreme case this might mean that the winding up of an estate might be held up
for over 20 years.[731]
2.196
Traditionally, statutes
of limitation have not applied to equitable claims. Early limitation
statutes, such as the English Limitation Act 1623, dealt purely with
common law claims. With time, however, the courts of equity developed
doctrines to deal with the running of time. First, equity applied
provisions of the statutes of limitation by analogy. Thus, when an
equitable claim was closely analogous to a common law claim, the courts of
equity sometimes held themselves bound by the limitation period set down in a
limitations enactment in which they were not expressly mentioned.
Limitations enactments applicable to common law actions which were adopted as
“a rule to assist their discretion”.[732]
2.197
The limitation periods
set by section 11 of the Statute of Limitations 1957 do not apply to
claims for specific performance of a contract or for an injunction or other
equitable relief.[733]
The courts are not, however, prevented from applying section 11 by analogy in
the same way as the limitations enactments in force prior to the enactment of
the Statute were applied.[734]
2.198
The Statute does
set some fixed limitation periods for some equitable rights, such as actions by
beneficiaries to recover trust property, or in respect of any breach of trust,
or actions to recover the estates of deceased persons.[735]
It also sets fixed limitation periods for actions to recover land, and
actions by mortgagors to redeem a mortgage.[736]
2.199
Traditionally, where
the application of statutory limitation periods by analogy was not possible,
equitable doctrines were used as a statute-bar of sorts. These emanated from
the equitable maxim that ‘delay defeats equity’. This maxim is enshrined
in the phrase vigilantibus, non dormientibus jura subveniunt – ‘the law
assists the vigilant, not those who not sleep’.[737]
Delay is a discretionary factor that may influence a court’s decision to
grant or withhold equitable relief.[738]
Two concepts must be examined to understand the application of this equitable
maxim in practice: those of laches and acquiescence. These
doctrines were created by equity judges; they are not of statutory origin.
2.200
The doctrine of laches
was developed to allow the courts of equity to refuse relief on the ground
of unreasonable or prejudicial delay. The doctrine is still applicable
to equitable claims that are not governed by a limitations enactment. The
effect of this doctrine is that where there has been unreasonable delay in the
bringing of the proceedings rendering it unjust to grant relief, a plaintiff’s
claim may be barred in equity.[739]
2.201
It is difficult to
identify hard and fast rules as to how the doctrine operates,[740] but in general it may be said
that delay alone is insufficient - there must also be an injustice or prejudice
to the defendant as a result of the delay. In Murphy v The Attorney General,[741]
Henchy J. adopted the definition of laches contained in Snell's
Principles of Equity,[742]
namely that the doctrine “essentially consists of a substantial lapse of time
coupled with the existence of circumstances which make it inequitable to enforce
the claim."[743]
Henchy J. added that “[w]hat is a “substantial lapse of time”
must depend on the circumstances of the particular case.”[744]
Thus, the duration of the equitable limitation period - and the date of its
expiry - is measured by judicial discretion. The court will balance the
claimant’s justification for delay against the prejudicial consequences caused
by the delay to the defendant.
2.202
The primary advantage
of the doctrine of laches is that it guarantees fairness and ensures
that a plaintiff has sufficient knowledge of his or her right of action before
denying him a remedial order in respect of that action. Its simplicity and
common-sense approach also ensures that litigants understand the system. This
means that litigation under the equitable system is straightforward, and rarely
produces expensive appeals.[745]
2.203
The primary disadvantage
of laches is that the slate is never wiped clean for a defendant.[746] Potential defendants can never be sure
that a claim will not be taken against them, even after decades have elapsed
following the occurrence of the act or omission that might give rise to a
claim. Indeed, potential defendants may be completely unaware of the
possibility of a claim until many years have passed after the event, making it
near impossible to successfully mount a defence to a claim then commenced.
2.204
Acquiescence means that where one party
infringes another party’s rights and the latter party seeks no legal redress
for that infringement, equity infers that the latter party has acquiesced in
the former’s actions, and the latter party’s claim may be barred in equity.[747] The plaintiff must either
expressly or impliedly represent that he or she does not intend to enforce a
claim. As a result of this representation, it becomes unjust to grant the
relief which he subsequently seeks.[748]
Acquiescence and laches are often coupled and the courts do not always separate
them; indeed, acquiescence has been referred to as an “element in laches
operating by way of estoppel.”[749]
2.205
For both laches and
acquiescence, the modern approach is to ask whether it would be
unconscionable for a party to be permitted to assert his beneficial
rights. It is not a matter of requiring a plaintiff to overcome a series
of pre-defined hurdles, or making an exhaustive enquiry into whether the
circumstances fit within the principles established in previous cases.[750]
2.206
It is unclear whether
or not the principles of laches and acquiescence may operate in
cases where the statutory limitation period has been applied by analogy.[751]
2.207
Under section 11(1) of
the Statute of Limitations, actions founded on quasi-contract may be
taken up to 6 years from the date of accrual of the cause of action. This body
of law has in recent years come to be known as the law of restitution, which
has been concisely summarised as “the law concerning the rectification of
unjust enrichment.”[752]
This contrasts with the situation in England and Wales, where there is no
parallel provision applicable to this area of the law.
2.208
Unjust enrichment
occurs where a defendant was enriched by a benefit gained at the plaintiff’s
expense, in circumstances where it would be unjust to allow the defendant to
retain the benefit received.[753]
Brady and Kerr suggest that a cause of action will accrue when the plaintiff
pays money to the defendant or to the defendant’s use, or where he supplies
goods and services, as the case may be.[754]
2.209
Section 72(1) of the Statute
governs claims arising from mistake (e.g. claims for restitution of money paid
under a mistake of fact). Under this section, the limitation period
begins to run only once the plaintiff has, or could with reasonable diligence
have discovered the mistake.[755]
2.210
The Statute of
Limitations 1957 applies to arbitrations as it applies to actions in the
High Court.[756]
An arbitrator is bound to give effect to any limitation defence. The
arbitration must be commenced within the limitation period.[757]
Arbitrators have no power to dismiss a claim on the grounds of inordinate and
inexcusable delay; this power is available only to the courts.
2.211
The High Court may
order that an arbitration award be set aside, or may order that it cease to
have effect with respect to the relevant dispute. At this point, the
Court may order that the period between the commencement of the arbitration and
the date of the Court’s order is to be excluded from the computation of the
running of the limitation period.[758]
2.212
The reform of the law
of limitation as it applies to arbitrations is outside of the scope of this
Consultation Paper; the Commission has recently published a Consultation Paper
on Alternative Dispute Resolution and is currently preparing a Report on
the subject.[759]
2.213
In general, the
limitation periods under the Statute of Limitations 1957 run from the
date of accrual of the cause of action. Unless otherwise specified, the accrual
of a right of action is governed by the common law.
2.214
Subject to the specific
exceptions set out below, no general discoverability rule applies in Ireland at
present.[760]
2.215
A test setting out a
“date of knowledge” in relation to latent personal injuries, from which a
limitation period of three years runs, was introduced by section 3 of the Statute
of Limitations (Amendment) Act 1991. That Act implemented certain of
the recommendations of the Commission’s 1987 Report on Claims in Respect of
Latent Personal Injuries.[761]
Section 2(1) of the 1991 Act sets out the facts that must be within the actual
or constructive knowledge of the plaintiff before he or she is said to have
“knowledge” of the cause of action such that the limitation period should being
to run against him or her:
a) that the person alleged to have been
injured has been injured
b) that the injury in question was
“significant”
c) that the injury is attributable (in
whole or in part) to the act or omission which is alleged to constitute
negligence, nuisance or breach of duty
d) the identity of the Defendant, and
e) if it is alleged that the act or
omission that caused the injury was that of a person other than the Defendant,
the identity of that person, and the additional facts supporting the bringing
of an action against the Defendant.
2.216
Section 2(1) of the
1991 Act further provides that “knowledge that any acts or omissions did or did
not, as a matter of law, involve negligence, nuisance or breach of duty is
irrelevant”. Section 2(2) provides that a person is fixed with knowledge that
he might reasonably have been expected to acquire from facts observable or
ascertainable by him, or from facts ascertainable by him with the help of
medical or other appropriate expert advice which it is reasonable for him to
seek. This section adds an objective element to the date of knowledge
test. Any harshness that might derive from the objective element of the date of
knowledge test is mitigated, however, by section 2(3), under which a person is
not fixed with knowledge of a fact that is ascertainable only with the help of
expert advice so long as that person has taken “all reasonably steps to obtain
(and, where appropriate, to act on) that advice. Moreover, an injured
person who, as a result of his injury, fails to acquire knowledge of a fact
relevant to his injury, is not fixed with knowledge of that fact.
2.217
The ‘date of knowledge’
test also applies to fatal injuries actions under the Civil Liability Act
1961,[762]
personal injuries actions under section 13(7) of the Sale of Goods and
Supply of Services Act 1980,[763] and defective products actions.[764] Actions in respect of damage by
a dog in an attack on a person, or for injury done by a dog to livestock[765], are considered ‘personal injuries
actions’, and the date of knowledge test therefore also applies to such
actions.[766]
The date of knowledge test is further discussed in Chapter Four (see page 191).
2.218
‘Ultimate’ or ‘long
stop’ limitation periods are not a common feature of the current law of
limitation in Ireland, subject to the exceptions set out below.
2.219
An ultimate limitation
period of sorts applies in respect of a small number of land-related actions,
running for 30 years from the date on which the right of action first
accrued. This applies irrespective of disability or infancy. [767]
2.220
A further variation of
ultimate limitation period applies under the non-statutory National House Building Guarantee Scheme (HomeBond),[768]
which was set up to provide home owners with a warranty against major
structural defects. Dwellings constructed by the members of HomeBond
(builders and developers) come within the scheme. A 10-year liability
period applies for “major structural defects”,[769]
running from the issue of the Final Notice.[770]
A two year liability period applies to water and smoke penetration.
2.221
Under the Liability
for Defective Products Act 1991, which implemented the 1985 EC Directive on
Product Liability, 85/374/EEC, a 10 year ultimate limitation period applies to
actions. Section 7(2)(a) of the 1991 Act, which implements Article 11 of the
1985 Directive, states that this limitation period runs from the date on which the producer put into circulation the actual
product which caused the damage, unless the injured person has in the meantime
instituted proceedings against the producer. This applies regardless of whether
the cause of action has accrued at that time.[771]
This has the effect of extinguishing the injured party’s rights after the
expiry of 10 years from the relevant date, irrespective of the injured party’s
minority or mental capacity, for example. This ultimate limitation period
applies only to actions under the 1991 Act and does not apply to product
liability claims brought under the common law duty of care of manufacturers and
producers (which is not affected by the 1991 Act).
2.222
The Commission
discusses ultimate limitation periods in more detail in Chapter 5.
2.223
Until the enactment of
the Defamation Act 2009, Irish law had contained just one example
(section 46(3) of the Civil Liability Act 1961, discussed above) of a
judicial discretion to extend or dis-apply statutory limitation periods.
2.224
As noted above, the Defamation
Act 2009 amended section 11(2) (c) of the Statute of Limitations 1957 so
as to provide for two alternative limitation periods for defamation periods: a
one-year basic limitation period for defamation actions, running from the date
of accrual or a limitation period running for “such period as the court
may direct not exceeding 2 years”, starting at the date of accrual. In this
way, the Act installed judicial discretion into the law of limitations
in Ireland for the first time.
2.225
The court’s discretion
to extend the limitation period under section 11(2)(c) is not unfettered.
Rather, it is subject to:-
(1) A two-year long-stop, and
(2) Statutory guidelines for the exercise of the discretion.
2.226
The courts have no discretion
to extend the basic limitation period beyond two years running from the date of
accrual of the cause of action.[772]
No defamation action can be commenced after this date, unless extended by the
postponement provisions of the Statute of Limitations 1957. In
this way, the Defamation Act 2009 imposes a two-year ultimate limitation
period. This diverges from the recommendation in the 2003 Report of
the Advisory Committee on the Law of Defamation (the Mohan Committee),
which had recommended a six-year long-stop.
2.227
The 2009 Act also
inserts a new section 11(3A) into the Statute[773]
to provide guidance as to the exercise of the court’s discretion under the
amended section 11(2)(c). Under section 11(3A), the court must be
satisfied, before directing the extension of the basic limitation, that:
a) The interests of justice require the giving of the direction, and
b) The prejudice that the plaintiff would suffer if the direction were not
given would significantly outweigh the prejudice that the defendant would
suffer if the direction were given.
2.228
Part (b) reflects the
balance of prejudice, as recommended by the Mohan Committee, but differs
significantly from the provisions of sections 32A and 33 of the UK Limitation
Act 1980.
2.229
It is also mandatory
under section 11(3A) for the court to have regard, when deciding whether or not
to exercise its discretion, to the reason for the plaintiff’s failure to bring
the action within the limitation period specified in section 11(2) (c).
Additionally, it is mandatory for the court to have regard to the extent
to which any evidence relevant to the matter is, by virtue of the delay, no
longer capable of being adduced.[774]
Though slightly rephrased, this section reflects the recommendation made by the
Mohan Committee.
2.230
The courts have an
inherent discretion to strike out proceedings or dismiss claims where there has
been undue delay in the prosecution of the claim. That discretion may be
exercised even where the statutory limitation period has not yet expired,
although the exercise of the discretion in that manner has occurred only where
lengthy periods have elapse during which the running of the limitation period
was postponed such that the defendant is prejudiced in the presentation of his
defence.
2.231
The Statute of
Limitations 1957 does not refer to or provide any guidance with regard to
the courts’ inherent discretion to dismiss cases. As a result, lay
litigants may be unaware of this discretion, and may be prejudiced by this lack
of knowledge. This jurisdiction or discretion is discussed in Chapter 7 below.
2.232
Part II of the Statute
of Limitations 1957, which sets the length of the fixed limitation
periods applicable to various causes of action, opens with the following
caveat:-
“The subsequent provisions of this Part of this Act shall have effect
subject to the provisions of Part III of this Act which provide for the
extension of the periods of limitation in the case of disability,
acknowledgement, part payment, fraud and mistake.”[775]
2.233
Part III of the Statute
is a crucial component of the traditional limitations system, and an
understanding of postponement is crucial to an understanding of the limitations
system. As is clear from the caveat above, Part III provides the rules
governing the postponement of running of the various fixed limitation periods
in the event of:
· The plaintiff’s age or absence of
capacity (called disability in the 1957 Statute);
· Acknowledgement by the defendant;
· Part-payment by the defendant;
· The defendant’s fraud; or
· Mistake.[776]
2.234
The Commission returns
to discuss these postponement provisions in detail in Chapter 8 below.
2.235
Although it is not
intended to give any great of consideration in this Consultation Paper to the
practice and procedure of the courts in respect of limitation periods, the
Commission considers it relevant to address a small number of pertinent issues
in that respect, with a view to gaining as comprehensive an overview as
possible of the operation of the Statutes of Limitations and the
associated problems.
2.236
Limitations statutes
have, over the centuries, been uniformly interpreted so as to create a defence
for a defendant who successfully asserts such a statute.[777]
The nature of this defence depends on the nature of the action commenced by the
plaintiff. The general rule is that when the limitation period applicable
to a cause of action expires, the remedy may be barred if the defendant pleads
the Statute and may be entitled to a defence. This defence does
not challenge the plaintiff’s claim on its merits; rather, it gives the
successful defendant a complete immunity from any liability under the claim,
regardless of the merits of the claim. If the defendant succeeds, the
plaintiff will no longer be able to enforce the right asserted, relative to the
violation alleged.
2.237
The defendant must
expressly plead the Statute in order to avail of the limitation defence;
the defence is not self-executing upon the expiry of the limitation period.[778] A court will not raise the matter of
time of its own motion. Thus, it is open to a defendant who might otherwise
plead the Statute to choose not to do so. If the defendant elects to
contest the case on its merits or fails to plead the Statute, the
plaintiff may still obtain his remedy, even though the limitation period has
expired. In this way, the Statute has no effect unless and until
pleaded.
2.238
Failure to initiate
proceedings within the relevant period does not extinguish the plaintiff’s
rights. The right asserted will remain intact; it is merely the method of
enforcement of that right that is affected. Thus, where the defendant
chooses to plead the Statute, the plaintiff retains other options to
enforce his or her right outside of the courts. In this sense, the
effects of the Statutes are procedural rather than substantive in nature.
2.239
There are important
exceptions to this general rule, the most important of which applies to actions
to recover land. In such cases, the expiry of the limitation period
extinguishes the title of the property of the legal owner along with the remedy
after the limitation period has expired.[779]
Thus, where a stranger has been in adverse possession of land held on trust for
12 years, the landowner’s title - along with his remedies - will be
extinguished. The effect of extinguishment was not immediately
clear. It was initially thought that the estate or interest of the
dispossessed owner of the land was conveyed to the person who was in adverse
possession. In respect of freehold estates, the person who is in adverse
possession of the land “acquires a title which is as good as a conveyance of the
freehold.”[780]
The situation in respect of leasehold estates was not as straightforward. This
is discussed in the Commission’s 2002 Report on Title by Adverse Possession.[781]
2.240
The Statute applies
to registered land as it applies to unregistered land.[782]
Where a person claims to have acquired a title to registered land by
possession, that person may apply to the Registrar to be registered as the
owner of the land.[783]
The Registrar may cause the applicant to be registered as the owner if
satisfied that the applicant has acquired the title. The Registrar may
register the applicant with absolute, good leasehold, possessory or qualified
title to the land, as the case may require. This registration is without
prejudice to any right not extinguished by such possession. This
registration has the effect of extinguishing the title of the person whose
right of action to recover the land has expired.[784]
2.241
The exception to the
general rule does not apply to actions to recover land held on trust, including
a trust for sale, or actions to recover settled chattels.[785]
At the time of expiry of the limitation period available to a trustee who seeks
to bring an action to recover land, the trustee’s legal interests in the land
is not extinguished so long as the right of action to recover the land of any
person who is entitled to a beneficial interest in the land (i.e. any
beneficiary) has not yet accrued or been statute-barred.[786]
This may be the case, for example, where the beneficiary is a minor or
suffering from a disability when the right of action accrues to the trustee. It
is only when the right of action has accrued to all beneficiaries and the
limitation period has expired for all beneficiaries, that the trustee’s legal
interest in the land is extinguished.[787]
2.242
In sum, a plaintiff who
is owed a statute-barred debt is fully entitled to it if he can obtain
satisfaction otherwise than by legal proceedings, but where a plaintiff seeks
to recover land his title to the land is extinguished after the expiration of
the statutory limitation period.
2.243
In McGuinness v
Armstrong Patents Ltd, McMahon J. held that
the date on which the cause of action accrues is included in the limitation
period.[788]
This is in accordance with what is now set out in section 18(h) of the Interpretation
Act 2005. Section 18 sets out the general rules of
construction of an enactment.[789]
Sub-section (h) provides as follows:-
“Periods of time. Where a period of time is expressed to begin on
or be reckoned from a particular day, that day shall be deemed to be included
in the period and, where a period of time is expressed to end on or be reckoned
to a particular day, that day shall be deemed to be included in the period.”[790]
2.244
This rule contrasts
with that applicable in Britain and Northern Ireland, where the limitation
clock begins to run on the day after such accrual.[791]
The jurisdictions are in agreement, however, that the period is extended to
allow for the issue of a summons on the first day after time expires on which
the relevant court office is open. Thus, according to Morris J. in Poole v
O'Sullivan[792]
in the event that the commencement of proceedings requires an act on the part
of someone in the court office:
“[T]he period envisaged by the Statute of Limitations should be
construed as ending on the next day upon which the offices of the Court are
open and it becomes possible to do the act required.”[793]
2.245
If, however, the
necessary act does not require any action on the part of someone in the court,
time will not be extended.[794]
2.246
The situation is somewhat
different again under the1974 UNCITRAL Convention on the Limitation Period
in the International Sale of Goods. Under that Convention, the limitation
period is calculated in such a way that it expires at the end of the day what
corresponds to the date on which the limitation period began to run. If
there is no such corresponding date, the limitation period expires at the end
of the last day of the last month of the limitation period.[795]
Where the last day of the limitation period falls on an official holiday or
other dies non juridicus which precludes the appropriate legal action
being taken in the relevant jurisdiction, the limitation period is extended
such that it does not expire until the end of the first day thereafter on which
the appropriate legal action can be performed allowing proceedings to be
instituted or a claim to be asserted.[796]
2.247
In Tennyson v Dun
Laoghaire Corporation,[797]
Barr J. held that the time limits for judicial review proceedings apply to the
date on which the initial application for leave is made. For this reason, the
adjournment of an application for leave to a date outside the two month time
limit laid down in relation to planning decisions did not affect compliance
with the time limit in circumstances where the initial application was made
within the relevant time limits.[798]
2.248
For the purposes of the
Statute, “any claim by way of set-off or counterclaim shall be
deemed to be a separate action and to have been commenced on the same date as
the action in which the set off or counterclaim is pleaded.”[799]
Thus, a set-off or counterclaim is considered to be a new action. The date on
which the limitation period stops to run in respect of this new action is the
date of the commencement of the set-off or counterclaim proceedings. The Statute
brought the situation in respect of set-offs and counterclaims into line. Until
1959, the situation was different: time ran against the set-off until the
beginning of the action in which the set-off was raised and time ran against
the counterclaim until the date on which the counterclaim was pleaded.
2.249
The Commission’s
discussion in this Chapter indicates that the array of different limitation
periods and the many rules governing their application leads, almost
inevitably, to some degree of confusion. The limitation periods are
themselves the cause of litigious disputes, and often materially influence the
nature of the cause of action relied upon by plaintiffs. This runs
counter to the recognised principle that, as far as possible, limitation
periods should be clear, logical and of general application.
2.250
The Commission now
turns to discuss and summarise the main problems that affect the application of
statutory limitation periods in Ireland.
2.251
The limitation regime
as it applies at present in Ireland is unnecessarily complex. As can be
seen from the discussion in this Chapter, there are many exceptions to general
rules and a number of complex interpretive issues that continue to be
litigated, some of which have shown up gaps in the law. There is no ‘golden
thread’ running through the limitations system, determining the length,
running, postponement and expiry of the limitation periods. Moreover, some of
the rules, such as those determining the date of accrual, remain governed by
common law and are difficult to ascertain and understand, even for experienced
practitioners.
2.252
The Irish law of
limitations is incoherent, primarily owing to the manner in which the law has
developed since 1540. Little thought has been given in recent times to
the principles underlying the general limitations system applicable under the Statute.
Instead, a piecemeal approach has been taken to tackling problems as
they arise. This has resulted in a disjointed body of limitation periods,
to which different rules and principles have been applied. Long-stop periods,
discoverability rules and judicial discretion feature infrequently and with no
clear basis for their application to some actions, and their dis-application to
others.
2.253
The law of limitation
lacks clarity in a number of areas. It is, for example, unclear what precisely
is included in the category of actions to “recover a sum recoverable by virtue
of any other enactment”.[800]
This makes the law inaccessible and encourages unnecessary litigation. In
sum, the Commission agrees with the sentiment expressed by the Law Commission
for England and Wales that “[s]implification is both necessary and achievable.”[801] Undue uncertainty should be
avoided, as far as possible, in limitation law.
2.254
This lack of clarity is
reinforced by the many, ad-hoc, amendments to the 1957 Statute in the
intervening 50 years since it came into force. This would be allieviated to
some extent by the availability of a formal Restatement (administrative
consolidation) of the Statute. The Commission has included the 1957 Statute in
the list of Acts in its First Programme of Statute Law Restatement.[802]
2.255
Classification
difficulties exist within the law of limitations as it stands at present. The
existence of different limitation period for different categories of action
creates unnecessary confusion and gives plaintiffs an incentive to try to bring
their action within one category rather than another.[803]
Moreover, the design of categories is problematic, and poses difficult
interpretive problems, thereby increasing the risk of inappropriate,
overlapping and ambiguous limitation provisions.[804]
In addition, with ongoing changes in the general law of civil liability, often
in statutory form, and which have no direct connection to limitations
law, there has been an indirect effect on the scope of the categories in
the 1957 Statute because the statutory changes to civil liability law often use
concepts such as “negligence” or “damages” which the 1957 Statute uses in order
to determine a limitation period. The disconnect between these developments
will often make the categories defined by these terms inappropriate and
ambiguous.[805]
2.256
An example of such a classification
difficulty exists in relation to the torts of trespass to the person and
personal injuries. In Devlin v Roche & Others,[806] the plaintiff claimed damages for
assault and battery, negligence, breach of duty and breach of statutory
duty. The Supreme Court held that the phrase “breach of duty" in
section 3(1) of the Statute of Limitations (Amendment) Act 1991 does not
encompass intentional trespass to the person. A distinction has been
made, therefore, for limitation purposes between actions seeking damages for
personal injuries sustained as a result of intentional trespass to the person,
and personal injuries sustained as a result of nuisance, negligence or breach
of duty. Actions for intentional trespass to the person are subject to
the general, fixed six-year limitation period running from the date of
accrual. Thus, no discoverability principles apply, and a plaintiff may
find him or herself statute-barred owing to what might be said to be an artificial
classification. This gives rise to confusion, particularly as the ingredients
of the respective torts are virtually identical. Moreover, there is
potential for further problems because the English decisions on which the Irish
Supreme Court relied in Devlin have, since then, been overruled by the
UK House of Lords in A v Hoare.[807]
2.257
The Commission
considers that ambiguity of this kind is an undesirable feature of a system of
limitation. To the greatest extent possible, such systems should be
unambiguous.
2.258
The Irish limitations
system is based on the traditional method of setting fixed limitation periods,
running from accrual. As seen above, although the rules are set out in a
relatively modern Statute, the length of these limitation periods in many
instances was set in the 17th or 18th century, in an age
before computers, when communication and the retrieval of information were slow
and cumbersome,[808]
when documents and correspondence had to be sent by horse or ship. As
noted by the Alberta Institute of Law Research and Reform:-
“Perhaps the limitations system at law functioned well in England before
the industrial revolution. Since that time, however, industrial, commercial and
government institutions have become exceedingly complex and populations have
grown dramatically. With these changes the law has become larger and more
intricate; additional rights have been recognized and the battery of remedies
available for the infringement of right has been enlarged.”[809]
2.259
It is clear that the
socio-economic environments that existed in England in 1623 and in Ireland in
the early 21st Century are beyond comparison. The limitation periods
that remain applicable in modern times reflect the preservation of traditional
distinctions that are no longer of relevance. One example is the difference
between actions on a simple contract and actions on a specialty. The Statute
also makes reference to some actions and concepts that are now obsolete (e.g.
actions for arrears of dower).[810]
Thus, our present limitations remain firmly rooted in the past. The
Commission considers that it is essential that the law on limitation
periods should be modern, relevant and clear.
2.260
Because the current
limitations system is complex and unclear, litigation as to the meaning of the
law and the classification of actions can be costly and lengthy. The lack
of clarity in the law encourages litigation, which contributes to judicial
workload and slows down litigation in a general sense. This is an
expensive process for the State through expenditure on court resources, and for
the parties involved in civil litigation.
2.261
In addition, failure to
ensure a fixed, readily ascertainable date on which the defendant can no longer
be subject to a claim means that individuals and businesses must, for example,
retain records and maintain indemnity insurance for longer periods for fear
they may be subject to claims many years after the act or omission in
question. This is costly and unnecessary.
2.262
The complexity
and incoherence of the current law of limitations means that the law is
inaccessible even for experienced practitioners, and to a greater extent for
litigants and the wider public. The language used in the 1957 Statute is, in
many places, archaic and highly legalistic, and the rules are unnecessarily
technical. This is unacceptable, particularly as individuals may be
statute-barred owing to lack of knowledge or understanding of the limitation
periods running against them. The Commission considers that a limitations
system should be comprehensible for all persons who may be affected by it,
whether lawyers or laypersons.
2.263
The Commission
considers the limitations system, as it stands, to be unsatisfactory, and is of
the view that a fundamental root-and-branch change is necessary. The law
of limitations should be clear, modern, simple, accessible and fair. It should
limit the time available for the litigation of disputes that must be litigated,
but should not encourage litigation.
The Commission has, accordingly, come to the provisional conclusion that the
principal legislation governing limitation of actions, the Statute of
Limitations 1957 (as amended), is unnecessarily complex and is in need of
fundamental reform and simplification.
2.264
The Commission provisionally recommends that,
since the principal legislation governing limitation of actions, the Statute of
Limitations 1957 (as amended) is unnecessarily complex, it is in need of
fundamental reform and simplification.
3
3.01
Recent years have seen
several law reform agencies undertake a general review of limitation law. In
this regard, the Law Reform Commission of Western Australia noted:-
“No longer are law reform bodies looking to produce a traditional Act
setting out a number of different limitation periods for different causes of
action, all running from the time of accrual: instead, they are suggesting new
concepts such as general limitation periods, the adoption of limitation periods
which run not from accrual but from some other starting-point, and ultimate or
“long stop” limitation periods beyond which no extension of the ordinary period
is possible.”[811]
3.02
A trend that has
emerged from the general reviews carried out in various jurisdictions is the
consideration of what has been called “a core limitations regime”. This Chapter
examines the key features of core regimes recommended and enacted in various
other jurisdictions, and analyses the potential for such a regime to be
introduced in Ireland.
3.03
In Part B, the
Commission examines the key elements of a core limitations regime: a uniform
basic limitation period; a uniform commencement date; and a uniform ultimate
limitation period. In Part C, the Commission examines the main arguments
concerning the desirability of a core limitations regime. In Part D, the Commission
explores in detail the various models for core limitations regimes that have
been recommended, and introduced, in other States. In Part E, the Commission
draws its conclusions from this discussion and makes a key recommendation on
the introduction of a core limitations regime.
3.04
A core regime is
essentially a uniform approach to limitations law, with fairness, clarity and
simplicity at its foundation. The key feature of the various core regimes
recommended by other jurisdictions has been the introduction of the following
three standards for the majority of civil actions:
·
A uniform basic
limitation period
·
A uniform commencement
date
·
A uniform ultimate
limitation period.
3.05
As recommended,
these three standard features apply to all civil action, with limited
exceptions.
3.06
The wide range of
disparate and disjoined provisions set out in Chapter Two show that the Statute
of Limitations 1957 is very complex. This is principally because it
attempts to provide a separate limitation rule for a wide range of actions, and
also because a piecemeal approach has been taken to the reform of limitations
law. The Statute sets one set of rules for various actions in
contract, another for tort actions in general, and another for specific other
tort actions, and so on. The Statute also specifically excludes other
forms of civil litigation entirely. The date on which the various
limitation periods accrue or being to run is not always clear, and problems of
classification frequently arise. Also, the Statute is drafted in
archaic, technical language, and is consequently difficult to understand.
As a result, limitations law is perplexing for practitioners, and inaccessible
for non-lawyers.
3.07
The introduction of a
new Limitations Act in Ireland would allow for a thorough simplification of
limitations law, and would provide an opportunity to rectify anomalies existing
in the current law that have the potential for create injustice to plaintiffs
and defendants. It would also deal appropriately with new problems as they
emerge, increase clarity, and contribute to predictability in limitations law.
It would, further, eliminate problems of classification and categorisation. The
Commission has already made a great number of recommendations in the area of
limitation, some of which have not yet been implemented. Those
recommendations that await implementation could be incorporated into a new
Limitations Act. In addition, the Commission agrees with the Law
Commission of England and Wales that core regime would be “coherent, certain,
clear, just, modern and cost-effective.”[812]
3.08
Fundamentally, the
Commission considers that the flaws that may be attributed to the existing Statute
are not capable of rectification by a modest revision of the law as it
stands. Instead, what is needed is a “root and branch” reform, a goal
that could be met by a break from the traditional model and the introduction of
a conceptually new limitations regime.
3.09
A core limitation
regime has been considered in the following jurisdictions, among others:
(1) Alberta
(2) Western Australia,
(3) England and Wales, and
(4) New Zealand.
3.10
There follows an
analysis of the models recommended and/or enacted in each of these
jurisdictions.
3.11
In the 1970s and `80s,
the Institute of Law Research and Reform of Alberta carried out a study of its
traditional limitations statute, under which the various established causes of
action were identified and specific limitation periods assigned to each.[813] Initially, this study was
undertaken with a view to revising the existing statute of limitations.
Over time, however, members of the Institute developed “a distinct sense of
unease” with the existing statute, and with conventional limitations statutes.
The Institute found that the existing model was “complex, prolix, conceptually
confused” and gave rise to unfair results.[814]
3.12
The report for
discussion published by the Institute in 1986 might be said to be the seminal
work in this area. In that report, the Institute stated:
“Our conclusion is that there is neither a sound theoretical nor
practical foundation for the practice of assigning different limitation periods
to different categories of claim. […] Not only do we think that the use of
different categories of claims serves no useful purpose; we think that the
practice results in limitation periods which are too often unreasonable, either
to claimants or to defendants. […] As law, with its rights and remedies, has
grown more complex, the unusual has become more usual, and claims cannot be
placed into categories with any reliable relevance to their discovery periods,
economic importance, or vulnerability to deteriorated evidence.”[815]
3.13
The Institute therefore
recommended “that only one limitation period is required for all claims subject
to a discovery rule and that this period can be relatively short and still fair
to defendants.”[816]
The Institute chose to engage in a fundamental “root and branch” reform, from
which evolved a systematic new limitations regime. This new regime drew from
and combined elements of the traditional legal and equitable models of
limitation.
3.14
In 1989, the Institute
published a Model Limitation Act,[817] employing a three-prong core limitation
regime. This model has the key advantage of simplicity. Instead of a
number of limitation periods running for various lengths from different dates
of accrual, there is one basic limitation period running from the date of
discovery. Provisions for the judicial extension of the limitation period
were considered unnecessary.[818]
A long-stop period, running from the date on which the cause of action
arose, provides balance by ensuring that there is a point at which the action
is finally barred. Thus, the defendant’s interests are protected.
3.15
The Alberta model also
has the advantage of clarity. It is easily understood by practitioners
and litigants alike, and therefore reduces the possibility of a claimant
finding themselves statute-barred due to their lack of knowledge or
comprehension of limitation law. The uniformity of the Alberta rules also
essentially eliminates problems of classification in that arise where different
limitation periods are ascribed to different categories of claim. In addition,
it reduces the potential for litigation on definitional issues.
3.16
The Institute’s Model
Limitation Act was the foundation upon which a core limitation regime was
introduced in Alberta in 1996, Ontario in 2002 and Saskatchewan in 2004, as
well as the inspiration for the Uniform Law Conference of Canada’s Uniform
Limitations Act, adopted in 2005, a Bill introduced by the New Brunswick
Attorney General’s Office in December 2008,[819]
and a Draft Report for Consultation published by the Manitoba Law Reform
Commission in June 2009.[820]
3.17
The Alberta Limitations
Act [821]
largely enacted the recommendations of the Institute’s Model Limitation Act.
It came into force on March 1, 1999.[822] The
1996 Act was Limitations Act,[823]
and amended in 2002 and 2007.[824]
The Alberta core regime applies to all claims for “remedial orders”,[825] subject to limited exceptions. The core
features of the Alberta core regime, under the revised Act, are as follows:
|
Alberta |
|
|
BLP |
2 years running from discoverability[826] |
|
ULP |
10 years running from date on which claim arose.[827] |
|
Exceptions |
· Claims for ‘declarations’ or ‘enforcement orders’[828] · Claims for habeas corpus;[829] · Actions to recover land (subject to ULP);[830] · Actions by Aboriginal persons against the Crown based on breach of duty (subject to ULP);[831] |
|
Judicial Discretion |
None. |
|
Special Features |
Applies to legal and equitable claims alike. |
|
Allocates burden of proof.[832] |
|
3.18
Actions are
statute-barred at the expiry of the basic limitation period (2 years) or
ultimate limitation period (10 years), whichever occurs earlier.[833] The basic and ultimate
limitation periods begin to run at different times, the former from
discoverability and the latter from the novel formulation of ‘the date on which
the claim arose’. This may be of little consequence, however, as in most
instances, the date of discoverability will be the same as the date on which
the claim arose. The basic and ultimate limitation periods will therefore
generally run from the same date. The impact of this formulation is,
nevertheless, that in the event of latent injury, the claim will be
statute-barred after ten-years from the date on which the cause of action
arose, irrespective of the inability of the plaintiff to discover the cause of
action during that time.
3.19
The courts in Alberta
have been given no discretion to extend or disregard the limitation period. This approach has been criticised being “too rigid” on the basis that
“[f]ailure to discover the existence of the claim is not the only factor which
may delay the issue of a writ”.[834]
3.20
In 2003, the Alberta
Institute published two Reports on specific aspects of limitations law, namely
adverse possession and insurance contracts.[835]
In its report on adverse possession, the Institute
raised the concern that as a result of the repeal of the Limitation of
Actions Act,[836]
the working of the limitation period regarding an
owner’s right for the recovery of possession of land may be unclear. In
particular, concern was expressed that the identification of the starting point
for the 10-year limitation period is now uncertain. The Institute recommended
that clarity should be brought to when the 10-year period begins to run in
cases involving the recovery of possession of land, and to the consequences of
the expiry of the 10-year period. The Limitation Statutes
Amendment Act 2007[837]
was enacted to clarify the law and avoid unnecessary
litigation the area of the recovery of possession of land, and also in cases
involving a conflict of laws between Alberta and another jurisdiction.[838]
3.21
The reform of Ontario’s
limitations law was first considered in 1969.[839]
The Ontario Limitations Act Consultation Group published a report in
1991 that was based almost entirely on the Alberta Institute’s 1989 Model
Limitation Act, proposing a scheme similar to the Alberta model, under
which every claim would be subject to a primary and ultimate limitation period.[840] This resulted in a Limitations
Bill 1992 which, if enacted, would have completely reformed the law of
limitations, with the notable exceptions of limitations in real property
actions.[841]
3.22
Following a prolonged
process of consultation and negotiation,[842]
a core regime was enacted under the Limitations Act 2002,[843] which has since been amended.[844] The following are the features of
this core regime:
|
Ontario |
|
|
BLP |
2 years, running from the date of discovery[845] |
|
ULP |
15 years, running from the day on which the act or omission on which the claim is based took place.[846] |
|
Exceptions[847] |
· Actions in respect of Real Property;[848] · Claims for declarations or enforcement orders; · Certain family law proceedings; · Proceedings to enforce arbitration awards; · Proceedings to recover collateral; · Proceedings based on aboriginal and treaty rights, · Provincial offences proceedings; · Sexual assault cases involving dominion; · Proceedings based on equitable claims by aboriginal peoples against the Crown;[849] · Actions in respect of certain breaches of trusts of land;[850] · Equitable actions;[851] · Environmental claims that have not been discovered.[852] |
|
Discretion |
None. |
|
Features |
Scheduling System |
3.23
While this regime is
modelled on the Alberta Institute’s recommendations, certain differences
apply. Unlike Alberta model, the Ontario ultimate limitation period runs
from the time of the act or omission on which the claim was based, as opposed
to the date on which the claim arose. A further difference is that the
ultimate limitation period runs for 15 years in Ontario, in contrast to
Alberta’s 10 years. Furthermore, in Ontario, a scheduling system is
employed whereas in Alberta, the regime applies to all ‘remedial claims’.
3.24
The Ontario scheduling
system involves the listing, in a Schedule to the Act, of special limitation
periods to which the core regime does not apply. This scheduling system
was first proposed in the Ontario Limitations Bill 1992, which provided
that any limitation period set out in another Act would be ineffective unless
the provision establishing it was specified in the schedule to the proposed Limitations
Bill 1992.
3.25
The Schedule contained
in the 2002 Act contains a list of the special limitation periods contained in
other statutes which remain in force.[853]
Limitation periods set by any Act that is not listed in the Schedule are not
longer of any effect. The special limitation periods set out in the
Schedule are, however, subject to some of the principles established by the
core regime, including the provisions concerning postponement, dispute
resolution and the ultimate limitation period.
3.26
In 1989, the
Saskatchewan Law Reform Commission (SLRC) published Proposals for a New
Limitation of Actions Act.[854]
This contained a draft Act which if enacted, would have brought wide
ranging changes to the law of limitations in the province. In 1997, the
SLRC compared its draft 1989 Act with the Uniform Limitations Act adopted
by the Uniform Law Conference of Canada in 1982.[855]
The SLRC found that the differences between the two were relatively minor and
concluded that both models remained a valid basis for the reform of limitations
law. In 2003, the Department of Justice of Saskatchewan handed down Proposals
for Reform in relation to limitation, similar to those adopted in Alberta
and Ontario.[856]
This resulted in the Limitations Act 2004,[857]
which was amended in 2007.[858]
3.27
The core features of
the Saskatchewan core limitation regime are as follows:
|
Saskatchewan |
|
|
BLP |
2 years, running from the date of discovery.[859] |
|
ULP |
15 years, from date on which the act or omission on which the claim is based took place.[860] |
|
Application |
All claims commenced by statement of claim, or by originating notice.[861] |
|
Exceptions |
· Actions in respect of real property; · Appeals or Judicial review proceedings;[862] · Proceedings based on existing Aboriginal and treaty rights of the Aboriginal peoples;[863] · Habeus Corpus proceedings;[864] · Claims for which a limitation period is set by another Act or by an international convention or treaty adopted by an Act; [865] · Actions on a judgment or order for the payment of money;[866] · Claims for declarations or enforcement orders; · Proceedings to enforce arbitration awards; · Proceedings to recover collateral; · Claims by the Crown for unpaid fines;[867] · Actions in respect of assaults or sexual assaults, involving dominion.[868] |
|
Judicial Discretion |
None |
3.28
The Act applies to
private individuals and to the Crown alike.[869]
As with the Alberta model, the Saskatchewan Act expressly allocates the burden
of proof.[870]
It does not employ a scheduling system, as seen in the Ontario model.
3.29
The Uniform Law
Conference of Canada (“ULCC”) seeks to promote uniformity of legislation among
the Canadian provinces, and prepares model and uniform statutes.[871] It has adopted three model
Limitation Acts. The first Uniform Limitation of Actions Act,
adopted in the early 1930s, was well received and adopted in seven
jurisdictions.[872]
The ULCC Uniform Limitations Act of 1982 contained a uniform limitation period running from the date of the act
or omission giving rise to the action. This model was not very
well received, and was adopted in only one jurisdiction.[873]
3.30
In 2004, the ULCC set
up a Working Group on Limitations and at its 2005 Conference adopted a Uniform Limitations Act based on limitations
legislation enacted in Alberta, Saskatchewan and Ontario since 1982.[874] The central features of the Uniform
Limitations Act are as follows:
|
Uniform Limitations Act 2005 (ULCC) |
|
|
BLP |
2 years, running from discoverability[875] |
|
ULP |
15 years, running from the day on which the act or omission on which the claim is based took place.[876] |
|
Exceptions |
· Claims in respect of assault, battery or trespass to the person involving dominion;[877] · Actions in respect of real property; · Environmental Claims; · Insurance Claims.[878] · Proceedings for declaratory judgments; · Appeals and judicial review proceedings.[879] |
|
Judicial Discretion |
None. |
|
Special Features |
Scheduling System |
3.31
The ULCC core regime is
consistent with the Alberta model except that it employs a scheduling system
along the lines of the model enacted in Ontario in 2002.[880]
3.32
The ULCC acknowledged
that it was arguably arbitrary to assign a two and 15 year periods to the basic
and ultimately limitation periods respectively. It was agreed, however,
that two years was a sufficient time period within which to seek legal advice,
consider the available options, and institute proceedings, once a claim is
discovered.[881]
The ultimate limitation period was considered necessary to ensure that the
interests of the defendant for finality and closure were not overlooked.
The ULCC adopted the “arguably arbitrary” 15-year period simply because this
was the period recommended by the Alberta Law Reform Institute.[882]
3.33
Until 2005, the Limitation
Act 1935 (Western Australia)[883] governed the law of limitation in
Western Australia. That Act was a consolidation of English Statutes
dating from 1623 to 1878.[884]
Many difficulties were associated with the Act, including the use of an archaic
drafting style, the retention of obsolete legal concepts, the perpetuation of
out-of-date distinctions, and a failure to reflect modern legal distinctions.[885]
3.34
In 1997, the Law Reform
Commission of Western Australia published a Report on Limitation and Notice
of Actions,[886]
in which it found that the 1935 Act was “too firmly rooted in its 19th
century English origins for it to be possible to eliminate its defects and
convert it into a satisfactory piece of legislation merely by amending it.”[887] The Commission made the following
suggestion:
“What is required is a new Act, one which takes into account the
reformed Acts in other jurisdictions and the latest thinking about the concepts
of limitations law developed by law reform commissions and similar bodies in
Australia and elsewhere.”[888]
3.35
It might be said that
the criticisms levelled at the Western Australia Limitations Act 1935 are
equally applicable to the Irish Statute of Limitations 1957, which is
similarly rooted in the English statutes of the 18th and 19th
centuries. Equally, the LRC of Western Australia’s propositions for reform have
resonance in this jurisdiction.
3.36
The Commission of
Western Australia recommended the adoption of a modern limitation statute, in
the form of a core regime. The central features of the recommended core regime
are as follows:
|
Proposed Core Regime: Western Australia |
|
|
Core Limitation Period |
3 years, running from date of discoverability |
|
Long Stop |
15 years, from date on which the claim arose |
|
Exceptions |
· Actions to recover land;[889] · Actions in respect of mortgages;[890] · Actions to recover tax paid.[891] |
|
Judicial Discretion |
In exceptional cases |
3.37
The recommendations of
the Commission of Western Australia have not been implemented.
Nevertheless, a new and updated limitations system was introduced under the Limitation
Act 2005 , and limitations enactments receding this Act were repealed.[892] This Act has introduced
some of the features of a core limitations regime, to the exclusion of others.
3.38
The 2005 Act introduced
one basic limitation period that runs for six years from the date of accrual.[893] This is known as the “default
limitation period.”[894]
It applies to all causes of action apart from those specified in Division
3 of the Act which lists sixteen specific limitation periods which are either
longer or shorter than the default limitation period. Subject to these
exceptions, the six-year limitation period applies to all civil proceedings in
a court, whether the claim is under a written law, at common law, in equity or
otherwise.[895]
It also applies to arbitrations.[896]
Like the Alberta model, the Western Australia Act establishes the burden of
proof.[897]
3.39
The Act provides
alternative limitation periods for equitable actions, namely either a six-year
limitation period running from accrual, or a three-year period from when time
started running, on equitable principles, for the commencement of the action.[898] These alternative limitation
periods apply only to equitable actions that are not analogous to other actions
and for which the limitation period would therefore not be determined in equity
by analogy to the limitation period for any other kind of action.[899]
3.40
Particularly detailed
provisions are provided governing the extension of the limitation period for
minors,[900]
and persons with a mental disability.[901]
The Act makes provision for the judicial extension of the limitation period in
cases of fraud and improper conduct,[902]
personal injuries and fatal injuries actions,[903]
defamation cases,[904]
or in cases where the court considers that it was unreasonable for the guardian
of a minor plaintiff or the guardian of a person with a mental disability not
to commence the action within the limitation period for the action.[905]
3.41
There is also something
of an ultimate limitation period, as the Act provides that notwithstanding the
rules governing the postponement of the limitation period in the event of
mental disability, no cause of action can be brought by a person under
disability more than 30 years after the cause of action accrued.[906] This might more properly be seen
as a limited outer bar, but it has the same effect as an ultimate limitation period.
3.42
A selection of the
special limitation periods, to which the six year limitation period does not
apply, is as follows:-
|
SPECIAL LIMITATION PERIODS |
||
|
LENGTH |
ACTIONS |
RUNNING FROM |
|
1 year |
Defamation actions |
Date of publication[907] |
|
Actions to recover tax mistakenly paid |
Date of payment[908] |
|
|
2 years |
Actions for contribution |
Date of accrual[909] |
|
3 years |
Personal Injuries |
Date of accrual[910] |
|
Fatal Injuries |
Date of death[911] |
|
|
Trespass to the Person |
Date of accrual[912] |
|
|
12 years |
Actions founded on a deed |
Date of accrual[913] |
|
Actions to recover land |
Date of accrual[914] |
|
|
Actions to recover possession from a mortgagor |
Date of accrual[915] |
|
|
Actions for foreclosure |
Date of accrual[916] |
|
3.43
The date of accrual of a cause of action, with
is governed by Part 4 of the Act,[917] still differs for different causes
of action. Different rules apply depending on the nature of the cause of
action. The concerns outlined in the Western Australia LRC’s Report with
respect to the lack of uniformity between the limitation periods therefore
remains to be addressed.
3.44
The Law Commission for
England and Wales published a Consultation Paper in 1998 and a Report in 2001,
on the subject of the Limitation of Actions.[918]
The Law Commission found that this area of law requires simplification and
rationalisation because it is “uneven, uncertain and unnecessarily complex”.[919] Further, as it stands, this area
of law lacks coherence owing to its ad hoc development over a long
period of time, is unfair and outdated, and lacks relevance for modern life.[920] The Law Commission therefore
found the case for a wide-ranging reform to be compelling, and recommended the
introduction of “a law of limitations that is coherent, certain, clear, just,
modern and cost-effective.”[921]
3.45
The central features of
the recommended core limitations regime are as follows:
|
Proposed Core Regime: Law Commission for England and Wales |
|
|
BLP |
3 years running from the “date of knowledge”[922] |
|
ULP |
10 years running from accrual or, for certain claims,[923] the date of the act or omission giving rise to the cause of action. No ULP for personal / fatal injuries actions.[924] |
|
Application |
· The majority of tort claims; · Contract claims; · Restitutionary claims; · Claims for breach of trust & related claims; · Claims on a judgment; · Claims on an arbitration award; · Claims on a statute; · Equitable remedies for a cause of action, where the core regime would apply to common law remedies for that cause of action · Specified claims in company law.[925] |
|
Actions subject to modified regimes |
· Certain tort actions;[926] · Personal / fatal injuries actions; · Defective products actions; · Actions to recover land & related actions;[927] · Actions surviving for the benefit of the estate of a deceased person; · Claims by a subsequent owner of damaged property; · Claims for conversion; · Claims in relation to mortgages and charges; · Claims in respect of companies and insolvency. |
|
Judicial Discretion |
Personal Injuries actions only.[928] |
3.46
The Government accepted
the Law Commission’s recommendations in principle in 2002.[929]
In 2003, the Court of Appeal warmly recommended the recommendations,
noting as follows:
“Early
statutory implementation of it would obviate much arid and highly wasteful
litigation, turning on a distinction of no apparent principle or other merit.”[930]
3.47
The Court of Appeal
again noted in 2006 that the Report “has been in Parliament’s hands for nearly
five years following a comprehensive law reform study conducted at considerable
public expense.” The Court asserted that:-
“[J]ustice would be far more simply achieved in claims like this in
future if Parliament were to simplify the law along the lines the Commission
recommended. In the meantime, the House of Lords itself may be able to remedy
some of the very serious deficiencies and incoherencies in the law as it stands
today in a way that we cannot.”[931]
3.48
In 2007, the Ministry of Justice stated that the
Government would public proposals for consultation as soon as such a detailed
examination of the impact of the proposals was complete.[932] A Draft Legislative Programme
published in May 2008 announced that one of four bills being considered for
publication in draft in 2008-2009 was a “civil law reform bill – to implement
reforms to the law relating to damages, limitation periods, claims against
insurers by people other than the insured person, trusts in relation to the
rules against perpetuities and excessive accumulations and the operation of the
forfeiture rule in the law of succession.[933]
In October 2008 the Secretary of State for Justice stated that
preparations were ongoing for a consultation on a draft bill to implement the
Law Commissions’ recommendations to reform the law of limitation. She
said that the consultation would take full account of the ruling of the House
of Lords in A v Hoare, including the exercise of the court’s discretion
to extend the limitation period and the way in which the claimant’s date of
knowledge is defined in abuse cases. [934] In December 2008 it was announced that a number of
Bills including a Civil Law Reform Bill would be published in draft form
in 2009 before being introduced in Parliament as a formal Bill. This
format is used to enable consultation and pre-legislative scrutiny before a
Bill is issued formally. At the date of publication of this Paper the draft
Bill has not yet been published but the Office of the Leader of the House of
Commons has announced that when published the draft Civil Law Reform Bill
will include proposals for the reform of the Limitation Act 1980.[935] In July 2009 the Ministry of
Justice announced that the Bill would be published in draft form by the end of
2009.[936]
3.49
Leading authors have
suggested that in many ways, the proposals put forward by the Law Commission
represent an improvement on and simplification of the present law, in line with
modern trends. Moreover, it is suggested that the proposed reforms will help to
resolve cases more quickly.[937]
3.50
Like the Irish Statute
of Limitations 1957, the New Zealand Limitation Act 1950 is
largely based on the Wright Committee’s Report of 1936 and the English Limitation
Act 1939. The New Zealand Law Commission (“NZLC”) considers the 1950
Act to be “incomplete, misleading, and inaccessible”, and has asserted that
“piecemeal attempts” by the Courts to cure its difficulties have resulted in a
“lack of harmony.”[938]
The New Zealand judiciary also considers the Act to be unfit for purpose
and in need of a complete overhaul.[939]
3.51
The idea of a core
regime was first recommended in a report of the NZLC of 1988.[940] That recommendation was not acted
upon. By the time of publication of a second report in 2000, the problems
of the existing law had worsened, and so the NZLC confined its recommendations to
urgently needed changes expressed as amendments to the existing Limitation
Act 1950.[941]
In 2007, the Government of New Zealand indicated that it wished to advance
legislation on the limitation of actions. The NZLC therefore commissioned
an Update Report, which reviewed the 1988 and 2000 Reports and drew
attention to subsequent developments in limitation law.[942]
The Update Report stressed that amendment of the existing legislation
was insufficient, and that a modern and more accessible limitation statute was
required.[943]
The Update Report recommended the introduction a new Act of wide
application. It was made available to the Ministry of Justice to assist in
settling the policy.
3.52
Thereafter, the NZLC
produced a consultation draft of a Limitation Defence Bill, which it
published in December, 2007.[944]
3.53
The Bill reflects the
recommendations made by the Commission in its previous papers in 1988 and 2000,
and in the Update Report of 2007. If enacted, the Bill will replace the Limitation
Act 1950 with a clearer, more accessible limitation regime, with the
following central features:
|
Proposed Core Regime: New Zealand |
|
|
BLP |
6 years[945] running from the date of the act or omission giving rise to the cause of action, subject to extension upon discoverability principles. |
|
ULP |
15 years from date of the act or omission giving rise to the cause of action. |
|
Exceptions |
· Actions in respect of abuse or bodily injury.[946] · Certain actions to recover land.[947] · Actions for specific performance of a contract, injunctions or equitable relief.[948] · Other limitation enactments.[949] |
|
Judicial Discretion |
Available for claims in respect of bodily injury[950] |
|
Special Features |
· List of “qualifying claims” in a “claims table”[951] · Applies to claims for public law damages.[952] |
3.54
The regime is intended
to apply to the Crown and individuals alike, [953] to specified land actions,[954] and to arbitrations.[955]
Special rules are provided for successive conversions and wrongful detention of
goods.[956]
3.55
In 2007, the NZLC
asserted that the simplified and modernised Limitation Defences Bill
would “reduce the costs and risks of injustice associated with litigation that
are caused by the use of stale evidence to determine disputes” and “encourage
claimants to act diligently, consequently protecting the quality of the
evidence and reducing the potential for injustices to occur.”[957]
3.56
The proposed core
regime applies to “qualifying claims” that are listed in Column 1 of the
“Claims Table” contained in the first Schedule to the draft Bill.[958]. There are three categories of
qualifying claim, categorised by the following:
a) The underlying act or omission of the claim or its effects;
b) The legal description of the claim;
c) The relief sought. [959]
3.57
All qualifying claims
have a “primary” limitation period. The duration of the primary periods
applicable to the qualifying claim varies according to differences in the
claims. Most primary periods are of 6 years’ duration. Defendants can
establish that the claim is out of time (the “primary defence”) by proving that
the date on which the claim was filed is after the last day of the primary
period for the claim.[960]
The Claims Table set out in Schedule 1 to the Bill consists of the
following six columns:
|
Kind of Claim |
BLP: Start Date |
BLP Duration |
Late Knowledge Extension |
ULP: Start Date |
ULP: Duration |
|
e.g. Tort |
Date of act or omission |
6 years
|
3 years |
Date of act or omission |
15 years |
3.58
The rules applicable to
the Claims Table are set out in the draft Bill.[961]
3.59
Submissions on the
consultation draft raised significant issues and the Law Commission responded
in 2008 by convening a working group of key submitters and stakeholders to
review the exposure draft and identify and address technical issues. The
working group's review resulted in the proposed new rules being restructured,
refined, and made simpler and clearer. In November 2008 a redraft of the Bill was
completed. The Bill was considered by the Government for inclusion on the
2009 Legislative Programme. In 2009 the Government published Limitation Bill 33-1 (2009) which is intended to come
into force on 1 July 2009. The Bill is said to embody the Law Commission's recommendations
based on the further work of the Reference Group.[962] It will repeal and replace the Limitation
Act 1950. Its purpose is stated as being “to
encourage claimants to make claims for monetary or other relief without undue
delay by providing defendants with defences to stale claims.”[963]
3.60
Part 1 of the Bill
deals generally with “money claims” while certain specified non-money claims
are dealt with separately. “Money claims” include any claim for monetary
relief at common law, in equity or under an enactment. This is a broad
definition but the Bill specifically excludes certain claims from its
ambit. The Bill provides civil limitation “defences” to certain claims,
including claims in respect of land or goods. The Bill adopts as the starting
date for the primary limitation period for most claims the date of the act or
omission on which the claim is based. This is because the date of accrual
was accepted to be sometimes difficult to identify.[964] Special starting dates are
provided for certain actions such as land actions, claims under the Contracts
(Privity) Act 1982 and actions in respect of personal property, accounts,
wills, contribution and judgments or awards.[965]
3.61
A general, six year
limitation period applies to most claims under the Bill, while general
provisions cover minority, incapacity, acknowledgement or part-payment, and
fraud.[966] The courts will have a discretion to provide
relief in child sexual abuse claims and a discretion to extend limitation
periods in cases of incapacity (for example, incapacity arising at or towards
the end of a limitation period). [967]
3.62
A three-year “late
knowledge” test will apply to money claims and certain other claims. This
replaces the concept of “reasonable discoverability”. The plaintiff’s
“late knowledge date” is the
date (after the close of the start date of the claim's primary period) on which
the claimant gained knowledge (or, if earlier, the date on which the claimant
ought reasonably to have gained knowledge) of specified key facts that the
claimant must know in order to make the claim. The Bill provides that a
claimant does not have “late knowledge” of a claim unless it is proven that, at
the close of the start date of the basic limitation period, the claimant
neither knew, nor ought reasonably have known, all of the specified key facts.
It also clarifies that the absence of actual or constructive knowledge may be
attributable to a mistake of fact or a mistake of law other than a mistake of
law as to the effect of the Bill itself.[968]
3.63
A 15 year long stop or
ultimate limitation period will prevent such claims being taken indefinitely;
that period will run from the date of the act or omission giving rise to the
cause of action. Defamation cases are subject to a two-year limitation
period; the Bill does not re-enact the current provision that allows a court to
permit relief on a defamation claim commenced within six years of the date of
accrual. The date of knowledge test will apply, however, where the
defamation action is a money claim.[969]
3.64
Based on the comparative analysis in this
Chapter, the Commission considers that a root-and-branch reform is needed so as
to simplify the
law, create uniformity between the rules governing the limitation of various
causes of action, and to remedy any anomalies existing in the present
law. The Commission accordingly has concluded that it is appropriate to
introduce new “core regime” legislation governing limitation of actions, based
on a set of limitation periods that would apply to various civil actions and
which would remedy a number of anomalies in the current law. The
Commission also provisionally recommends that the new legislation governing
limitation of actions should apply to the majority of civil actions, with
limited exceptions which would provide for special limitation periods.
3.65
The Commission provisionally recommends the
introduction of new “core regime” legislation governing limitation of actions,
based on a set of limitation periods that would apply to various civil actions and which
would remedy a number of anomalies in the current law. The Commission
also provisionally recommends that the new legislation governing limitation of
actions should apply to the majority of civil actions, with limited exceptions
which would provide for special limitation periods.
4
4.01
This Chapter addresses
the nature of the basic limitation period,[970]
and makes proposals as to the appropriate length of a uniform basic limitation
period, and the date from which it should run.
4.02
In Part B, the
Commission examines three trends in the reform of basic limitation periods: (a)
reduction of the number of different limitation periods applicable; (b)
introduction of “catch all” basic limitation periods; and (c) Introduction of
uniform basic limitation periods. The Commission concludes that a uniform
basic limitation period be introduced. In Part C, the Commission examines the
duration of the basic limitation period, bearing in mind that the duration of
the various limitation periods that apply at present has been described as a
matter of historical accident. The Commission provisionally recommends that a
choice be made between two suggested options in this respect: either one basic
limitation period of two years; or three basic limitation periods of one, two
and six years. In Part D, the Commission examines the method by which the
basic limitation period would run, preferring a date of knowledge test.
4.03
There have, since the
early 20th century, been three clear trends in the reform of basic
limitation periods:
(i) Reduction of the number of different limitation periods applicable;
(ii) Introduction of “catch all” basic limitation periods; and
(iii) Introduction of uniform basic limitation periods.
4.04
Difficulties arise
where large numbers of limitation periods of different lengths apply to
different causes of action. As far back as 1937, the Law Revision Committee in
England (“the Wright Committee”) suggested that the reduction of the number of
different limitation periods would result in the simplification of limitations
law.[971]
The Committee did not feel able to recommend the reduction of all limitation
periods to a single period as it considered that there were reasons -
particularly in an accrual-based system - why the limitation period should be
shorter for some causes of action than for others.[972]
Nevertheless, it recommended the abolition of the distinctions between the
limitation periods applicable to different torts, and the introduction of one
primary limitation period of six years for all actions founded in tort or
simple contract, and a variety of other actions.[973]
This recommendation was enacted in section 2 of the English Limitation Act
1939, which has, for the most part, been re-enacted under the English Limitation
Act 1980.
4.05
The idea of a uniform
limitation period for tort and simple contract matters has since been
implemented in other common law jurisdictions, including Ireland.[974] There has also been a corresponding
reduction, across various jurisdictions, in the number of limitation periods
applicable to various actions. In general, however, despite the
increasing homogeneity of the limitation periods applicable to various actions,
separate limitation periods have been maintained for a wide range of different
actions, in particular for actions of equitable origin such as actions for
breach of trust, actions for the recovery of land, and actions enforcing the
obligations created by a mortgage.
4.06
A further general trend
has been the introduction of shorter limitation periods for actions in respect
of personal injuries, defamation, latent defects and latent property damage.
This reflects the fact that improved communications and information flows
enable plaintiffs to discover the existence of causes of action more readily
than was previously the case.[975]
This trend has further complicated limitations law and has added to -
rather than reduced - problems associated with different dates of accrual and
with the classification of actions. In this way, although attempts have
been made to reduce the number of limitation periods, modern limitation
statutes, including the Statute of Limitations 1957, continue to contain
a large number of different limitation periods applicable to different forms of
action.
4.07
A further trend across
various jurisdictions has been the introduction of “catch-all” limitation
periods. “Catch-all” limitation periods apply to forms of action that are
not otherwise covered by a limitation period specified within a statute of
limitations. Such provisions make it unnecessary to specify limitation
periods for contract, tort and various other actions for which specific
limitation periods are generally provided by other limitation acts.[976] This guarantees comprehensiveness and reduces
the number of categories based on problematic characterisations.[977]
4.08
“Catch-all” limitation
periods were not a feature of statutes of limitation until 1931, when the
Uniform Law Conference of Canada’s Uniform Limitation of Actions Act incorporated
such a provision.[978]
This was widely adopted by the various Canadian jurisdictions[979] and analogous provisions were
introduced outside of Canada soon afterwards. ‘Catch-all’ provisions are
not currently a feature of Irish limitations law.
4.09
The reduction of the
number of limitation periods and the introduction “catch-all” limitation
periods have culminated in a new trend - the recommendation and / or
introduction of a single “basic” or “primary” limitation period (for
example two, three or six years) applicable to a wide range of civil actions
without distinction, subject only to limited exceptions.
4.10
As seen above, the idea
of a uniform basic limitation period first emerged from research published by
the Alberta Institute of Law Research and Reform in 1986. The Institute
concluded that “there is neither a sound theoretical nor practical foundation
for the practice of assigning different fixed limitation periods to different
categories of claim.”[980]
It noted that the practice of applying different, fixed limitation periods to
different causes of action is based on the argument that there is a period
during which the plaintiff usually discovers the existence of the cause of
action, that some claims are of greater economic importance than others, that
some claims are less likely to be disputed than others, and that evidence
deteriorates more quickly in some situations than others. The Institute firmly
rejected these arguments.[981]
4.11
Though not without its
difficulties, the spotlight of recent reform proposals has shone on the idea of
a streamlined, simplified limitation system. No jurisdiction has yet managed to
reduce all of its limitation periods to one set period of duration, but many
have accepted arguments for eliminating longer limitation periods (for example
for deeds, judgments etc) and applying the same period to the great majority of
claims.[982]
Even in light of a desire for simplicity, some categorisation may be inevitable
if a limitation scheme is to deal fairly with all the issues that arise.
4.12
The Law Commission for
England and Wales has endorsed the introduction of a uniform basic limitation
period, noting that the different limitation periods that exist at present
“cannot be defended and are products of the ad hoc development of the law of
limitations.”[983]
The Law Commission noted that a uniform limitation period would have the
advantage of increasing the coherence of the law on limitation and making it
more accessible (both to lawyers and the public.[984]
4.13
The Commission provisionally recommends the introduction of a
uniform basic limitation period of general application, which would apply to a
wide range of civil actions, subject to a limited number of exceptions.
4.14
The duration of the
various limitation periods that apply at present has been described as “a
matter of historical accident”.[985]
To some extent, the selection of the duration of a limitation period is always
an arbitrary decision. There is no way to strike the appropriate balance
between the competing interests with scientific accuracy. A limitations
system will never operate perfectly and will inevitably produce injustice on
occasion. Nevertheless, it is clear that there are certain matters for
which time must be allowed.
4.15
The length
of the basic limitation period must take account of the need to do justice to
the plaintiff and to the defendant. The following imperative has been
expressed by the Alberta Institute:-
“Although a limitations system should prevent a claimant from bringing a
claim unduly late, it should not require him to bring one with undue haste.”[986]
4.16
The Law Commission for
England and Wales has summarised the relevant considerations as follows:-
“The limitation
period chosen needs to provide sufficient time for claimants to consider their
position once the facts are known, take legal advice, investigate the claim and
negotiate a settlement with the defendant, where this is possible. At the same
time it should not be so long that the claimant is able to delay unreasonably
in issuing proceedings.”[987]
4.17
The Law Commission has
expressed the view that the chosen duration of the basic limitation period
should allow the plaintiff sufficient time to start preparing the case, but
should not allow all the time which may be necessary to draft the pleadings
required in the action. Regard must also be had to the complexities
involved in preparing different actions, from straightforward road traffic
accident claims to complex contractual claims.[988]
4.18
Guidance may be gleaned
from the practice of various other jurisdictions to recommend and / or
introduce uniform basic limitation periods:
|
Uniform Basic Limitation Periods |
Running from: |
|
|
Alberta |
2 years |
Discoverability |
|
England and Wales (LC) |
3 years |
Discoverability |
|
Ontario |
2 years |
Discoverability |
|
Saskatchewan |
2 years |
Discoverability |
|
ULCC |
2 years |
Discoverability |
|
Western Australia |
3 years |
Discoverability |
|
New Zealand (LC) |
6 years |
Date of the act or omission, or “reasonable discoverability”[989] |
4.19
Clearly, there is a
trend towards adopting a short limitation period running from discoverability.
Each of these basic limitation periods apply to a wide range of civil actions,
and are subject to few, limited exceptions.
4.20
A twelve-month fixed
limitation period, running from discoverability, was introduced in England in
1963 for personal injuries actions.[990]
This period was considered very short for the plaintiff to carry out the usual
investigations, obtain legal advice, negotiate and settlement, apply to a judge
for leave to issue the writ, and to finally initiate proceedings.[991] The limitation period was
extended following a Law Commission Report in 1970,[992]
to allow an action to be brought within three years of the “date of knowledge”
and a similar period was allowed for claims arising out of the injured person’s
death, with additional reference to the claimant’s date of knowledge.[993]
4.21
The Alberta Institute
was not in favour of the introduction of a 12-month uniform basic limitation
period on the following basis:
“We agree that a claimant who acts promptly
should be able to bring a claim within 12 months after discovery.
However, we do not believe that a 12-month limitation period beginning with
discovery will give the parties an adequate period of time in which to attempt
to settle their differences without litigation. A limitation period threatening
such an immediate bar could encourage the hasty commencement of litigation
which, with more time available, might be compromised.”[994]
4.22
The Institute
reiterated that although limitation systems are designed to encourage the early
litigation of controversies that must, unfortunately, be litigated, limitation
systems are not designed to encourage litigation.[995]
4.23
A one-year limitation
period has been introduced in England and Wales and across Australia for
defamation and malicious falsehood actions. This is subject to the
courts’ discretion to extend or dis-apply the one-year period, however, where
the justice of the case so requires. The Defamation Act 2009 provides
for a one year period in Ireland, again subject to judicial discretion.
This has been discussed in Chapter 2, above.
4.24
The proposed
introduction of a one-year period for personal injuries actions, which was
floated during the drafting of the Courts and Civil Liability Bill, was
not generally welcomed. The Committee on Court Practice and Procedures
indicated that the introduction of such a short limitation period could give
rise to significant practice difficulties and may result in inconsistencies -
particularly having regard to the limitation period applicable to personal
injuries actions made against the estate of deceased persons.[996] The Committee more recently
acknowledged that defamation is a case apart insofar as in the majority of
cases, the damage done to reputation by libel is more or less instantaneous.[997]
4.25
A two-year limitation
period now applies to a variety of different actions in Ireland. In O’Brien
v Manufacturing Engineering Co. Ltd,[998]
the Supreme Court held:-
“In the view of the Court a period of 12 months or, where there are
substantial grounds for not initiating within 12 months, a period of 24 months
is not unreasonably short to enable a person not suffering from any disability
to ascertain whether or not he has a common-law action and to institute that
action.”[999]
4.26
This decision left the
impression that the constitutionality of the provision might fail should
disability provisions not apply. Nevertheless, in Moynihan v Greensmyth,[1000] the Supreme Court upheld the
constitutionality of the two-year limitation period applicable to actions
against the estate of a deceased person under section 9(2) of the Civil
Liability Act 1961, even where disability provisions did not apply.
4.27
The Alberta Institute
recommended the introduction of a two-year basic limitation period, running
from the date of discoverability, supplemented by an ultimate limitation period
of ten years, running from the date of accrual. The Institute was of the
view that for the great majority of claims, the basic limitation period would
expire first, and that the ultimate limitation period would not strike down
many claims.[1001]
4.28
The Committee on Court
Practice and Procedure recently stated that the reduction of the limitation
period for personal injuries actions from three years to two is “consistent
with the desired objective of developing an efficient and effective system of
personal injuries claims determination”.[1002]
4.29
A three-year limitation
period was introduced for personal injuries actions in England and Wales
following the reports of the Monckton Committee in 1946[1003]
and the Tucker Committee in 1949.[1004]
The three-year period was chosen as something of a compromise between the
six-year period generally applicable to tort claims, and the one-year
limitation period applicable to claims against public authorities.
4.30
Although, the Alberta
Institute ultimately recommended a two-year basic limitation period, it also
expressed the view that “a three-year discovery period is reasonable.”[1005]
4.31
During the consultation
phase of a recent review of the three-year limitation period applicable to
personal injuries actions in Scotland, the Scottish Law Commission found that
the majority of consultees did not think there were significant problems with
the limitation period. Certain consultees did, however, express the view
that the three-year limitation period was inappropriate for claims in respect
of occupational diseases as greater investigatory work was required in such
cases.[1006]
The Law Commission was of the view, however, that it would not be
advisable to treat certain categories of personal injury claim differently to
others, as this would create further, unwarranted distinctions in the law of
limitation. It therefore recommended that the limitation period for
personal injury actions should be raised to five years.[1007]
The Law Commission noted that the changing nature of personal injury litigation
practice - resulting primarily from the marked decline in the number of persons
employed in heavy industry – meant that expert reports are more frequently
required in order to establish liability. It was agreed that this
represented a good argument for lengthening the limitation period for personal
injuries actions.[1008]
4.32
The Law Commission for
England and Wales has noted that a three-year limitation period - currently
applicable in that jurisdiction to personal injuries, latent damage and
defective products actions - has the benefit of familiarity and that there is
“little evidence to suggest that a three-year limitation period running from
discoverability would not be sufficient for all contract and tort claims.”[1009] The Law Commission acknowledged
that a reduction from six to three years for contract claims would be “a
substantial reduction”, even though the additional change of starting date to
discoverability would give a minority of plaintiffs a longer period than is now
available to prepare the claim.[1010]
4.33
Roughly 60% of the Law
Commission’s consultees supported the introduction of a three-year basic
limitation period. The Law Commission noted that experience in that
jurisdiction suggests
that “the three year period provides sufficient time for the claimant to bring
a claim in the vast majority of cases.”[1011] It recognised, however, that
a three-year period would create problems for patent claims in relation to
patents granted in the European Patent Office, but it proposed solutions for
the problems that might be encountered, and found that “[t]his alone would not therefore appear to
be sufficient reason to choose a longer limitation period.”[1012]
4.34
The United Nations
Commission on International Trade Law adopted a Convention on Limitation in
the International Sale of Goods in 1974.[1013]
The aims thereof have been expressed as follows:-
“The basic aims of the limitation period are to prevent the institution
of legal proceedings at such a late date that the evidence relating to the
claim is likely to be unreliable or lost and to protect against the uncertainty
and injustice that would result if a party were to remain exposed to unasserted
claims for an extensive period of time.”[1014]
4.35
The Convention sets a
uniform limitation period of four years, within which a party to a contract for
the international sales of goods must commence legal proceedings against
another party in order to assert a claim arising from the contract or relating
to its breach, termination or invalidity.[1015]
The choice of a four-year period has been explained as follows:-
“A limitation
period of four years' duration was thought to accomplish the aims of the
limitation period and yet to provide an adequate period of time to enable a
party to an international sales contract to assert his claim against the other
party.”[1016]
4.36
The limitation period
was decided upon after questionnaires were completed by various governments and
interested international organisations. The Official Commentary on the
Convention, prepared by the UN Office of Legal Affairs in 1978, notes that
various considerations were taken into account when establishing the length of
the limitation period, including the following:-
“On the one hand, the limitation period must be adequate for the
investigation of claims, negotiation for possible settlements making the
arrangements necessary for bringing legal proceedings. In assessing the time
required, consideration was given to the special problems resulting from the
distance that often separates the parties to an international sale and the
complications resulting from differences in language and legal systems.
On the other hand, the limitation period should not be so long as to fail to
provide protection against the dangers of uncertainty and injustice that would
arise from the extended passage of time without the resolution of disputed
claims.”[1017]
4.37
The Commentary
continues as follows:-
“In the course of drafting this Convention, it was generally considered
that a limitation period within the range of three to five years would be
appropriate. The limitation period of four years established in [Article
8] is a product of compromise.”[1018]
4.38
The four year period
runs from the date of accrual of the claim, as defined in the Convention.[1019] The limitation period may be extended or
recommence in certain circumstances. For example, while it cannot be modified by agreement of
the parties, it can be extended by a written declaration of the debtor during
the running of the period. The contract of sale may stipulate a shorter
period for the commencement of arbitral proceeding, if the stipulation is valid
under the law applicable to the contract. The Convention establishes an overall time
period of 10 years, from the date on which the limitation period originally
commenced to run, beyond which no legal proceedings to assert the claim may be
commenced under any circumstances.[1020] It has been explained that the
theory behind that provision is that enabling proceedings to be brought after
that time would be inconsistent with the aims of the Convention in providing a
definite limitation period.[1021]
4.39
In Scotland, the
concepts of prescription and limitation are both used, prescription being a
rule of substantive law, and limitation a procedural rule.[1022]
A five-year ‘short negative prescription period’ was introduced in 1973[1023] for all categories of obligation to
which the provision applies, including:
· Obligations to pay a sum of money due in respect of a particular period,
including interest, the instalment of an annuity, rent or a periodic payment
under a lease, and a periodic payment under a land obligation.
· Obligations arising from unjust enrichment or negotiorum
gestio;
· Obligations arising from liability to make reparations;
· Obligations under bills of exchange and promissory notes;
· Obligations of accounting;
· Obligations arising out of any other contract;
· Actions for delict.[1024]
4.40
This ‘short negative
prescription’ period does not apply to:
(1) Obligations to make reparation for
personal injury (a three-year period applies);[1025]
(2) Actions for defamation (a three-year
period applies);[1026]
(3) Obligations to make reparations for
damage caused by a defective product (a 10-year period applies);[1027]
(4) Obligations to recognise an
arbitration award, decree of court or order of tribunal;
(5) Obligations arising from the issue
of a bank note;
(6) Obligations relating to land.[1028]
4.41
A long-negative
prescription period of 20 years applies to most of the excepted causes of action.[1029] The expiry of these
prescription periods has the effect of extinguishing the plaintiff’s claim
entirely.[1030]
4.42
The six-year limitation
period applicable to the majority of contract and tort actions under the Statute
of Limitations 1957 was first fixed by the English Limitation Act 1623. It
has proved remarkably durable.[1031]
In 1936, the Wright Committee recommended the adoption of a single, six-year
limitation period for contract and tort actions, as this was “the period which
at present applies to the majority of such actions and is familiar to the
general public.”[1032]
This recommendation was enacted in the English Limitation Act 1939.
4.43
Almost four decades
later, in 1977, the Law Reform Committee noted that the six year limitation
period was “unnecessarily long”, particularly in the field of commerce.
The Committee considered whether or not a period of four or five years should
instead be adopted.[1033]
No shorter periods were assessed, as the Committee considered that this would
cause problems unless the accrual rule was supplanted.[1034]
It recommended against changing the length of the primary limitation
period, however, as the six-year period had become familiar to the general
public as well as to lawyers, and should not be changed unless it could be
shown that there was a substantial advantage to doing so.
4.44
The Alberta Institute
in 1986 asserted that if a limitation period starts to run from accrual, six
years duration may be required to allow the claimant to discover the claim,
attempt to settle, and then assert his or her claim. The Instituted did not
consider a six-year limitation period justified, however, where the running of
the limitation period is based on discovery.[1035]
4.45
In 1998, the Law
Commission for England and Wales noted that it was unable to trace any
information on the reason why the six-year limitation period was considered
appropriate for most actions.[1036]
The Law Commission considered as follows:
“[I]t is fair to assume that [the six-year limitation period] reflected
conditions that are no longer applicable (not least because of far more rapid
methods of communication). Perhaps its durability reflects nothing more
than lawyers’ familiarity with it.” [1037]
4.46
The Law Commission
asserted that “a limitation period of six years is too long (even where that
period starts from the accrual of the cause of action)” and proposed the
adoption of a shorter period.[1038]
4.47
In British Columbia,
the revised Limitation Act reduces to three the number of applicable
limitation periods, grouped according to whether the limitation period would
last for two, six or ten years.[1039]
The limitation period applicable in any given case depends on the type of
action being brought. Causes of action are grouped according to
functional terms, rather than technical classifications. The basic limitation
periods run from the time at which the cause of action arises. A six-year
limitation period applies to causes of action not specified in the Act.[1040] The revised Act also lists actions for
which no limitation period applies, such as sexual abuse claims.[1041] These basic limitation periods are
supplemented by two alternative ultimate limitation periods of 30 years and 6
years, running from the date on which the cause of action arises.[1042]
4.48
The Saskatchewan Law
Reform Commission n 1989 emphasised the importance of adopting functional
classifications, rather than adopting traditional distinctions such as that
between contract and tort.[1043]
It made recommendations along the same lines as British Columbia had done but
its recommendations have not been adopted. Instead, the legislature opted
for a model along the lines of that recommended by the Alberta Institute,
consisting of a two-year basic limitation period and a 15-year ultimate
limitation period.[1044]
4.49
The appropriate length
of the limitation period will depend on the date from which it begins to run,
which is discussed in greater detail from page 191.
4.50
In its seminal report
on limitations, the Alberta Institute noted that if a basic limitation period
is lengthened in order to operate with greater fairness to claimants in
atypical cases, it will give claimants in the typical cases an unnecessarily
long period of time in which to bring claims, to the possible prejudice of
defendants.[1045]
The Institute also observed that limitation periods that run from the
date of discoverability may be shorter than limitation periods running from
accrual, because there is no need to allow time for the plaintiff to discover
the existence of the claim.[1046]
4.51
An alternative way of
assessing how long a limitation period should last is to look at the economic
implications of having a short limitation period. This of course involves
an assessment of the costs and benefits of imposing a short limits on the
period during which an action should be brought. One of the most obvious
costs of having a short limitation period will be the loss to the claimant of
the value of the remedy (often compensation) if the claim is not commenced on
time. A further cost may be that a shorter limitation period will reduce
the incentive for a (potential) defendant to perform his or her legal
obligations given that a calculated risk might be taken that at least some
claims will not be brought within the limitation period. The benefits of
a shorter limitation period include reduced litigation costs, a reduction in
the costs accruing to the defendant and possibly to third parties, and a potential
reduction in social costs - this is relevant because the judicial process
receives public subsidies.[1047]
4.52
Bearing in mind the
guiding principles set out earlier in this Paper, the Commission is of the view
that it is important not to impose too short a limitation period, as
meritorious claims could be statute-barred as a result. It is also mindful,
however, that plaintiffs must be encouraged to bring proceedings with due
expedition.
4.53
The Commission provisionally recommends the
introduction of either:
(a) one basic limitation period of general
application, running for a period of two years; or
(b) three basic limitation periods of specific
application, running from periods of one, two and six years respectively.
4.54
The Commission provisionally recommends that,
subject to rules concerning the date from which the basic limitation period is
to run, the introduction of a two-year limitation period would be sufficient
for the majority of actions.
4.55
As is clear from
Chapter 2, the limitation periods contained in the Statute of Limitations
1957 run from the date of accrual of the cause of action with few
exceptions. Across the common law world, the date of accrual is slowly
being abandoned as the favoured point from which limitations law runs. In
Ireland the accrual test has been supplanted by discoverability principles in
personal injuries actions,[1048]
wrongful death actions,[1049] and defective products actions.[1050]
4.56
The piecemeal approach
to reform of the starting dates in Ireland and elsewhere has given rise to an
unsatisfactory situation and runs contrary to the primary goal of a simplified,
uniform limitation regime. It also perpetuates distinctions between
different kinds of action which aggravates the problems caused by overlapping
contract and tort liability, and the ensuing difficulties with the
classification of actions for limitation purposes. The introduction of a
consistent, readily-identifiable starting point for the running of the basic
limitation period would alleviate many of these problems.
4.57
There are, in general,
four possible dates from which a limitation period can run, namely:
1.
Date of Accrual
2.
Date of the Act or
Omission giving rise to the cause of action
3.
Date of Discoverability
4.
Alternative starting
dates (a combination of the above).
4.58
The Commission considers that first and foremost, the
starting point for the running of a basic limitation period should be easy to
identify. We have been greatly assisted by the assessment carried out by
the Orr Committee in England as to the characteristic of the ideal starting
point, which wielded the following conclusion:
i)
It should be
sufficiently near in time to the incidents giving rise to the claim to ensure
that proceedings were instituted before the relevant evidence became either
unobtainable or too stale to be reliable;
ii)
It should be
unmistakeable and readily ascertainable;
iii)
Its occurrence should
necessarily become known forthwith to the plaintiff. [1051]
4.59
The Orr Committee acknowledged that no starting point could
satisfy all these conditions in every case, and that the accrual test will
normally satisfy requirements (a) and (b), but will often fail to satisfy (c).[1052] On the other hand, the
discoverability test will normally satisfy (c), but will sometimes fail to
satisfy (a), and often (b).[1053]
4.60
There follows a
discussion of each of the four possible starting dates.
4.61
The traditional
starting point for the running of limitation periods has been the ‘date of
accrual’. The Statute of Limitations 1957 adheres to this
tradition, although progress has been made in limited fields. The date of
accrual is not defined by the Statute. Its definition is of
judicial origin and can only be determined through an analysis of case law spanning
more than a century. In general, it can be said that the limitation
period runs from the date on which the cause of action is complete, when it
becomes possible (at least in theory) to commence proceedings.[1054] No action will accrue until
every element of the cause of action is present, that is, every fact that it
will be necessary for the plaintiff to prove in order to support his right of
judgment to the court.[1055]
4.62
The accrual test is
problematic for a variety of reasons. Different common law rules govern
different causes of action. The cases dealing with accrual are numerous
and complex, and frequently uncertain. Supplemental provisions governing
the date of accrual, derived from judicial decision, are scattered throughout
the Statute of Limitations 1957. The rules governing accrual are well
known by lawyers, though they are complex. Finding the appropriate
date is a difficult task for professionals versed in limitation law, and is
more difficult still for non-lawyers.
4.63
While the common law
principles governing accrual are generally well settled, the rules do not
always make it possible to pinpoint the precise date from which the limitation
period should run. This is the case, for example, in cases involving latent
property damage, or economic loss. Moreover, where the rules governing
accrual are seen to produce an injustice and deemed unsuitable, they may be
subject to amendment by the judiciary or the legislature, which results in
further uncertainty.[1056]
4.64
Additionally, problems
arise from the categorisation of actions for the purpose of the accrual rules
that will apply. This may be seen from the recent House of Lords decision in A
v Hoare where the classification of an action in respect
of child abuse was considered in the context of limitation.[1057]
4.65
Further difficulties
arise where causes of action overlap, e.g. where a plaintiff has a claims
founded in contract and tort. Here, the dates of accrual will generally
not coincide. In general, actions in contract accrue at the date of the
breach, whereas actions in tort for negligence accrue when damage is
suffered. As the damage may be suffered at a later stage than the breach
occurs, the limitation period for the action in tort may be longer than that
applicable to the action in contract. Thus, the accrual rules lack
uniformity.
4.66
Ultimately, it must be
recognised that the accrual test creates unfair results for some
litigants. Nevertheless, it cannot be denied that as it is the
traditional approach, it has the merit of familiarity.
4.67
A different approach to
the running of both basic and ultimate limitation periods has been introduced
in various jurisdictions in the recent decades. This involves the running
of the limitation period from the date of the act or omission upon which
the cause of action is based. This test has also been suggested as an
alternative starting point to the discoverability test.
4.68
While in some instances
(such as actions for breach of contract), the dates of the act or omission,
accrual and discoverability may coincide, this is not always the case.
The difference between the date of the act or omission and the date of accrual
will be most marked in actions in tort for which proof of damage is a necessary
element (e.g. negligence). In such cases, the damage may have occurred at
a later date than that of the act or omission. The dates of the act and
omission and discoverability will usually differ in cases involving latent
personal injury, latent property damage, or economic loss.
4.69
The running of the
basic limitation period from the date of the relevant act or omission had many advantages.
It is simple and easy to understand,[1058]
especially by comparison to the rules governing the date of accrual. It
can be calculated with a degree of certainty, but the test allows for
flexibility on the basis of the judicial discretion that often complements the
test.[1059]
It would also have the advantage of uniformity and it would mitigate the
difficulties that are currently experienced as a result of the complex accrual
rule.
4.70
The adoption of an act
or omission test would also remedy the classification difficulties that are
currently prevalent in the law of limitations, as all causes of action would
run from the same date.[1060]
It would also remedy the situation where a plaintiff has concurrent actions in
contract and tort. Under the accrual rule, the plaintiff is in difficulty
in determining the appropriate limitation period. Under the act or
omission test, however, the action will commence on the same date if the injury
or damage is immediately apparent. If not, the alternative starting point
of the date of knowledge would apply in a uniform way to both claims.
4.71
There are however a
number of disadvantages to the running of the basic limitation period from the
date of the act or omission.
4.72
The New Zealand Law
Commission, which first suggested this approach, acknowledged that the test
would not solve difficulties that arise with continuing acts or
omissions. It suggested that most cases involving a series of acts should
be severable with a separate limitation period applying to each.[1061] It also recommended special
provisions dealing with claims based on demands, conversion, contribution,
indemnity and certain intellectual property claims.[1062]
4.73
In addition, although
the date of the relevant act or omission may be clear in most cases, there are
some cases in which that date may be uncertain. It has been suggested
that the courts would probably develop new rules analogous to those regulating
the date of accrual, about what constitutes the act or omission in particular
cases, thereby adding a new complexity to the law instead of simplifying it, as
intended.[1063]
4.74
Further, in cases where
damage is an essential element of the cause of action, the running of the
limitation period from the date of the act or omission in question would have
the potential effect that where the damage was not suffered until a date long
after the act or omission that led to the damage being caused, the limitation
period would start running before the cause of action is complete.[1064] It is arguable that this would
be an objectionable situation.
4.75
The date of the act or
omission might best be used as the commencement date for an ultimate limitation
period. This is further discussed at page 238 below. It could
otherwise be used as an alternative starting point to the date of knowledge in
cases involving (for example) latent damage or personal injury. A further
alternative would be to supplement the act or omission test with a wide
extension provision under which the basic limitation period could be extended
if the damage or injury was not discoverable at the date of the act or
omission. Proposals of this nature have been made in New Zealand,[1065] New Brunswick,[1066]
Ontario[1067]
and Western Australia,[1068]
among other jurisdictions. In Western Australia, it has
additionally been suggested that if an act or omission test was to be
introduced, it may be necessary for an ultimate limitation period to be
introduced, at least in cases involving personal injuries, in order to prevent
undue uncertainty as to when the proverbial slate would be wiped clean.[1069]
4.76
Where discoverability
principles apply, the limitation period runs from a defined “date of
knowledge”, i.e. the date when the plaintiff becomes aware -or could have
become aware if exercising reasonable diligence - of the existence of the cause
of action and the relevant facts relating to the cause of action. The
essential feature of any discoverability rule is the relevant facts that must
be within the plaintiff’s means of knowledge for the limitation period to begin
running against him. Discoverability principles are based solely on the
state of the plaintiff’s knowledge; the defendant’s conduct is for the most
part irrelevant. A “date of knowledge” test applies in Ireland in
relation to actions for damages in respect of personal injuries caused by negligence,
nuisance or breach of duty,[1070]
wrongful death actions,[1071]
and actions for damages under the Liability for Defective Products Act 1991.[1072] This greatly reduces the
possibility of an injustice being done to a plaintiff who does not or cannot
acquire requisite knowledge within the relevant time.
4.77
The development and
application of discoverability rules resulted from three decades in which three
difficulties arose. In the 1960s, the problem of latent personal injury
arose. In the 1970s, the problem of latency manifested itself in another
guise - property damage. The 1990s saw the emergence of cases brought by
adults in respect of sexual, physical and emotional abuse suffered as a child.
4.78
The problem of what has
been called “the hidden cause of action”[1073]
first arose in personal injuries cases involving industrial diseases which have
a long latency period (i.e. pneumoconiosis, including silicosis and asbestosis,
and mesothelioma). The injustice caused by the existing law of limitation
first came to the attention of the courts in the House of Lords’ decision in Cartledge
v E Jopling & Sons Ltd.[1074]
Here, through no fault of his own, the injured party was unaware that he
has suffered injury as a result of the defendant’s conduct for a considerable
period after the injury was first suffered as the injury did not manifest
itself for many years. Under the accrual test, the plaintiff was unable
to initiate proceedings as the limitation period had expired before he became
aware of these factors.
4.79
The first model of
discoverability was introduced as a response to this problem, following the
recommendations of the Edmund Davies Committee in England.[1075]
That Committee recommended that the running of the limitation period should be
relaxed for personal injuries actions involving latent injury. In such
cases, a plaintiff would not be out of time provided that he commenced
proceedings within 12 months of the earliest date on which the existence and
cause of the injury could reasonably have been discovered.[1076]
Most jurisdictions (including England and Wales,[1077]
Scotland[1078]
and Ireland[1079])
enacted legislation to allow for the limitation period to run from the date on
which the injury was discoverable, in cases involving latent personal injury.
4.80
From the early 1970s,
the problem of latent property damage emerged.[1080]
Here, the difficulty lay in the fact that defects in buildings are often not
observable for years after the occurrence of the damage. Applying the accrual
test, many plaintiffs were unable to initiate proceedings once the defects
became observable, as the limitation period had expired. The legislation
enacted as a response to the latent injuries problems provided no solution and many
jurisdictions were required to enact further legislation to remedy this
injustice. Although the Commission recommended that Ireland follow suit,
to such legislation has yet been enacted in this jurisdiction.[1081]
4.81
The 1990s in Ireland
saw the emergence of countless allegations made by adults in respect of sexual
and physical abuse suffered by them as children in orphanages, industrial
schools and other state-funded institutions. Commonly, the effects of
this abuse remained latent until many years after it was inflicted and even
where the victims were aware of these effects, the psychological effects of the
abuse (and in many cases the continued dominion of the abuser over them)
prevented them from initiating proceedings.[1082]
Once again, many jurisdictions (including Ireland)[1083]
enacted legislation to allow for such claims to be initiated after the expiry
of the basic limitation period.
4.82
It is difficult to
predict the types of claims that might feature in future decades. The
recent debate surrounding a number of cases of cancer misdiagnosis dating back
several years[1084]
is but one examples of the type of case that might arise. There is a
clear argument, therefore, for formulating limitation rules in such a way as to
extend the discoverability rules to all causes of action, rather than rely on
piecemeal amendments in response to specific cases as they arise.
4.83
It is noteworthy that
the Supreme Court of Canada has gone a step further and recognised a “common
law discoverability rule” under which the date of accrual is suspended until
the date of discoverability, at least for actions founded in tort.[1085] This is a significant innovation
in limitations law. A similar common law rule was identified by the
English Court of Appeal in 1976[1086]
but it was rejected by the House of Lords in 1983, which concluded that the
limitation period for action founded in tort starts to run at the date of
accrual, i.e. the date on which the damage occurred.[1087]
The existence of a “common law discoverability rule” has not been considered by
the Irish courts.
4.84
Discoverability rules
accord with the general policy that plaintiffs cannot be expected to bring an
action until they are aware of the existence of the cause of action. It
is well accepted that plaintiffs should have a reasonable opportunity to
discover the existence of the cause of action. Discoverability rules do
not distinguish between different kinds of damage. They ensure that a
uniform approach is taken to the running of the limitation period, and that all
cases are treated alike.[1088]
4.85
A further advantage is
that discoverability rules allow for the length of a basic limitation period to
be reduced. As indicated by the Alberta Institute, limitation periods
that run from the date of discoverability may be shorter than those running
from the date accrual because there is no need to allow any further time for
the plaintiff to discover the existence of the claim.[1089]
4.86
The adoption of a
discoverability rule also obviates the need to legislate for complementary
judicial discretion, which it appears is “practically always exercised in
favour of the plaintiff.”[1090]
In addition, it allows plaintiffs to avoid the expense and delay involved with
the making of an application for extension of the limitation period.[1091] It would furthermore generalise
the individual instances in which discoverability rules have been employed.[1092]
4.87
The Commission has
acknowledged in previous publications that the introduction of discoverability
as the sole starting point of a limitation period has much to offer in terms of
simplicity and certainty in the law. We recommended however that overall,
discoverability should be introduced only to deal with latent loss, and that
the accrual test should be retained for cases of obvious or patent loss or in
certain latent damage cases.[1093]
4.88
Although the European
Court of Human Rights generally accepts that limitation periods do not per
se infringe the Convention, the Court recently found that an inflexible
three year limitation period for a child to bring proceedings for judicial
recognition of paternity, running from date on which he or she reached the age
of majority irrespective of the child’s awareness of its father’s identity,
violated Article 8 of the Convention, in circumstances where the child only
learned her father’s identity after the limitation period had expired, and it
was then impossible for her to bring proceedings. The Court found that
the main problem with the inflexible limitation period was the absolute nature
of the time-limit rather than its dies a quo as such.[1094] It expressed the following
caution:-
“In the Court’s view, a distinction should be made between cases
in which an applicant has no opportunity to obtain knowledge of the facts and,
cases where an applicant knows with certainty or has grounds for assuming who
his or her father is but for reasons unconnected with the law takes no steps to
institute proceedings within the statutory time-limit [citations
omitted].” [1095]
4.89
Discoverability rules
take account of these considerations.
4.90
As to the
disadvantages, the discoverability rule carries with a degree of uncertainty
for defendants. Where damage is latent, the plaintiff may not become
aware of the cause of action for many years after the act or omission that
gives rise to the cause of action. The defendant is, during that time,
oblivious to the possibility of a claim being commenced against him or her.
As noted at page 27 above, the passage of time brings with it a
deterioration of the quality of evidence and the recollection of witnesses and
it will consequently be more difficult for a defendant to mount an effective
defence to the claim. Moreover, individuals and businesses will be required to
maintain records and insurance protection for long periods, which is onerous
and costly.
4.91
These difficulties
could be allayed, however, by the introduction of an ultimate limitation
period, running from the date of the act or omission giving rise to the cause
of action or the date of accrual, beyond which no claim could be commenced
irrespective of whether the claim was discoverable before that date. This
would accord with the argument that “justice to plaintiffs requires some
sacrifice as to certainty.”[1096]
This is discussed in greater depth at page 221.
4.92
The Law Commission for
England and Wales has accepted that the discoverability rule is inherently less
certain than the date of accrual and that there is, therefore, a risk that it
will produce some satellite litigation. It stressed, however, that this
danger could be exaggerated and that the advantages of a uniform starting date
outweigh the disadvantages.[1097]
4.93
An assortment of
different formulations of the various types of knowledge required in order for
a claim to be deemed ‘discoverable’ have been employed in various
jurisdictions. Typically, discoverability tests depend upon the
acquisition of knowledge of specified matters and issues by the
plaintiff. This leads to definitional problems as to what is meant by
‘knowledge’ and whether a plaintiff can be fixed with constructive notice of
certain facts.
4.94
There has been
something of an evolution in the definition of the date of knowledge.
With each phase of this evolution has come a marked simplification of the
criteria and the manner in which the test is drafted.
4.95
There has been an
evolution in the tests employed in England and Wales with respect to the ‘date
of knowledge’ in actions involving latent personal injuries. The first
formulation, under the English Limitation Act 1963, focused on what were
termed “material facts of a decisive character”, while a revised formula
introduced under the English Limitation Acts 1975 and 1980 focused
on actual and constructive knowledge. The latter formula was introduced
in Ireland under the Statute of Limitations Act 1991, with some minor
variations.
4.96
Under the English Limitation
Act 1963, the date of knowledge was when the plaintiff had within his means
of knowledge all “material facts of a decisive character” relating to
the right of action.[1098]
That model has been described as “the forerunner of the recent statutes
expanding the use of a discovery rule.”[1099]
It was repealed by the English Limitation Act 1975, but it remains of
historical significance.
4.97
Under the 1963 Act, the
“material facts” of which the plaintiff was required to have knowledge
were as follows:
(a) The fact that personal injuries
resulted from the negligence, nuisance or breach of duty constituting that
cause of action;
(b) The nature and extent of the
personal injuries resulting from that negligence, nuisance or breach of duty;
(c) The fact that the personal injuries
so resulting were attributable to the negligence, nuisance or breach of duty,
or the extent to which any one of those personal injuries were so attributable.[1100]
4.98
Facts were considered “decisive”
if they were facts:-
“[...] which to a reasonable person, knowing those facts and having
obtained appropriate advice with respect to them, would have regarded at that
time as determining, in relation to that cause of action, that […] an action
would have a reasonable prospect of succeeding and of resulting in the award of
damages sufficient to justify the bringing of the action.”[1101]
4.99
The discoverability
formula contained in the 1963 Act was adopted in Queensland,[1102] New South Wales,[1103] South Australia,[1104] Northern Territory,[1105] Manitoba,[1106]
and with variations in Victoria.[1107]
Notably, these jurisdictions all granted the court discretion to extend the
limitation period (“the court may”),[1108]
whereas the English provision provided for such an extension as of right (“the
court shall”).[1109]
4.100
This early
discoverability formula was problematic. Although the 1963 Act set out
what facts were “material”, and “decisive”, there remained much difficulty with
the question of what knowledge was required of the plaintiff to start time
running.[1110]
The drafting of the statutory formula was not sufficiently tight to cover the
cases intended to be covered, but no others. Additionally, when faced with hard
cases, the courts placed a construction on the statute that went beyond its
natural meaning, in order to avoid injustice.[1111]
Difficulties also arose in the application of the test to wrongful death
actions.
4.101
A revised formula was
contained in the English Limitation Act 1975, which was re-enacted under
the English Limitation Act 1980.[1112]
Under the 1980 Act, alternative starting points apply to actions to recover
damages for personal injuries. Thus, the limitation period for such
actions begins to run from either:
(a) The date of accrual of the cause of
action; or
(b) The ‘date of knowledge’ of the
plaintiff (if later).[1113]
4.102
The date of knowledge
is the first date on which the plaintiff had knowledge of all of the
following facts:
(a)
That the injury in question was “significant”;
(b)
That the injury was attributable in whole or in part
to the act or omission which is alleged to constitute negligence, nuisance or
breach of duty;
(c)
The identity of the defendant; and
(d)
If it is alleged that the act or omission was that of
a person other than the defendant, the identity of that person and the
additional facts supporting the bringing of the action against the defendant.[1114]
4.103
An injury is
“significant” if the plaintiff would reasonably have considered it sufficiently
serious to justify his instituting proceedings for damages against a defendant
who did not dispute liability and was able to satisfy a judgment.[1115] It is irrelevant whether or not
the plaintiff had knowledge that the acts or omissions do or do not involve
negligence, nuisance or breach of duty, as a matter of law.[1116]
4.104
The 1980 Act fixes a
plaintiff with constructive knowledge of facts that he or she might reasonably
have been expected to acquired from facts observable or ascertainable by him,
or from facts ascertainable by him with the help of medical or other
appropriate expert advice which it is reasonable for him to seek.[1117] A plaintiff is not fixed with
knowledge of a fact ascertainable only with the help of expert advice, so long
as the plaintiff has taken all reasonable steps to obtain (and where
appropriate to act upon) that advice.[1118]
4.105
The formula used in the
1975 and 1980 Acts has been criticised on a number of grounds.[1119] It does not assist a plaintiff
who has been incorrectly advised by a solicitor that he has no cause of action,
but may assist a plaintiff whose solicitor fails to discover facts relating to
a proposed claim. It is unclear whether a plaintiff’s fear of obtaining
advice, his ignorance as to how or where to seek advice, or his inability to
pay, are to be considered in the determination of what advice is considered
reasonable for the plaintiff to have sought. It is also unclear whether
or not “appropriate” advice must involve consultation with a solicitor, or whether,
for example, a trade union official might suffice. Moreover, it is unclear
whether or not the plaintiff is fixed with constructive knowledge of facts that
an expert failed (negligently or otherwise) to discover.[1120]
4.106
In addition, the
determination of significance according to this assumption is problematic as
“it is almost every cough or sprain that will be sufficiently serious to
justify an action” as against a defendant who does not dispute liability and
has sufficient assets to satisfy an award.[1121]
Thus, the test for significance might be said to be unrealistic.
4.107
It has been argued that
because the discoverability rule as formulated under the 1975 and 1980 Acts
works unfairly in certain cases, it will always be necessary to provide for
recourse to a judicial discretion to allow an action to be brought
notwithstanding the expiration of the limitation period.[1122]
4.108
The ‘date of knowledge’
test introduced under the Statute of Limitations 1991, which applies in
cases involving latent personal injury, is similar to that employed under the
English 1975 and 1980 Acts. Under the 1991 Act, a person has the relevant
knowledge if he or she knows the following:-
(a) That the person alleged to have been
injured had been injured;
(b) That the injury in question was
significant;
(c) That the
injury was attributable in whole or in part to the act or omission which is
alleged to constitute negligence, nuisance or breach of duty;
(d) The identity
of the defendant; and
(e) If it is
alleged that the act or omission was that of a person other than the defendant,
the identity of that person and the additional facts supporting the bringing of
an action against the defendant.[1123]
4.109
Thus, evidently, there
is an additional requirement that plaintiff knows that the person who is
alleged to have been injured has, in fact, been injured.
4.110
Unlike the English
Acts, the Irish Act does not define what is considered ‘significant’. The
Courts have interpreted this to mean that the Oireachtas intended that the
section should not be confined to the meaning attributed to “significant” under
the English Acts.[1124]
4.111
The formula employed
the concepts of actual and constructive knowledge. The plaintiff is fixed
with constructive knowledge in the same manner as under the English Limitation
Act 1980. Thus, under the 1991 Act, a person’s “knowledge” includes
knowledge that he or she might reasonably have been expected to acquire:
(a) From facts
observable or ascertainable by him, or
(b) From facts
ascertainable by him with the help of medical or other appropriate expert
advice which it is reasonable for him to seek.[1125]
4.112
The 1991 Act provides
that a person will not be fixed with knowledge of a fact that could only be
ascertained with the help of expert advice, so long as he has taken all
reasonable steps to obtain that advice. Additionally, the Act provides
that no person will be fixed with knowledge of a fact relevant to the injury
that he has failed to acquire by virtue of that injury.[1126]
4.113
The elements of the
discoverability test for non-personal injury actions will not necessarily be
the same as those for personal injuries actions.
4.114
Under amendments
introduced by the English Latent Damage Act 1986,[1127] the
limitation period in latent damages cases not involving personal injury runs,
under the English Limitation Act 1980, from what is termed “the starting
date”. Notably, the relevant sections do not use the term
“discoverability” or “date of knowledge”. The
“starting date” is defined as:-
“the earliest date
on which the plaintiff or any person in whom the cause of action was vested
before him first had both the knowledge required for bringing an action for
damages in respect of the relevant damage and a right to bring such an action.”[1128]
4.115
The ‘knowledge required’ means knowledge of both:-
(a) The “material facts” about the
relevant damage, and
(b) The “other facts” relevant to the
current action.[1129]
4.116
The “material facts”
that must be within the plaintiff’s knowledge are those which would lead a
reasonable person who has suffered such damage to consider it sufficiently
serious to justify his instituting proceedings for damages against a defendant
who did not dispute liability and was able to satisfy a judgment.[1130] The “other facts” are:-
(a) That the damage was attributable in
whole or in part to the act or omission which is alleged to constitute
negligence;
(b) The identity of the defendant; and
(c) If it is alleged that the act or
omission was that of a person other than the defendant, the identity of that
person and the additional facts supporting the bringing of an action against
the defendant.[1131]
4.117
This is subject to a long-stop of 15 years from the
date on which there occurred an act or omission that is alleged to constitute
negligence and to which the damage in respect of which damages are claimed is
alleged to be attributable, whether in whole or in part. The long-stop
bars the right of action in such cases notwithstanding that the action has no
yet accrued or the starting date has not yet occurred.[1132]
4.118
This definition is
convoluted and has led to definitional problems.[1133]
4.119
In the 2001 Report
on Actions in Contract and Tort in Respect of Latent Damage (other than
Personal Injury), the Commission sought to formulate a date of knowledge
test for actions involving latent damage, apart from personal injuries
actions. To this end, the differences between the formula contained in
the Irish Statute of Limitations (Amendment) Act 1991 and the Alberta Limitations
Act 1996 were discussed.[1134]
We recommended the introduction of a formula similar to that currently
employed in Alberta (discussed further at page 210 below) under which the date
of knowledge for latent damages actions not involving personal injuries would
be the date on which the plaintiff first knew or in the circumstances ought reasonably
have known the following:
i)
That the loss for which
the plaintiff seeks a remedy had occurred;
ii)
That the damage was
attributable to the conduct of the defendant; and
iii) That the loss, assuming liability on
the part of the defendant, warrants bringing proceedings.[1135]
4.120
This formula abandoned
the requirement that the plaintiff should know that the loss or damage suffered
was “significant”.[1136]
The Commission acknowledged that in abandoning the formula employed
in the 1991 Act, there was a risk of further fragmentation of an already
fragmented limitations regime. It was considered, however, that as the
existing formula was unnecessarily complex and that its interpretation has
caused difficulty, a new model should be introduced.[1137]
4.121
The Commission
acknowledged that a non-personal injury discoverability test would inevitably
include an actual knowledge and a constructive knowledge element.[1138] A detailed examination of the
options available was carried out and we favoured the introduction of an
objective test of reasonableness tempered only by certain subjective elements,
starting on the date on which the plaintiff knew or ought to have known, in the
circumstance, of the relevant facts. Under this formulation, a
constructive knowledge test employs a “reasonable man” standard, which is
equivalent to the “reasonable man” test that has been developed in the law of
torts. The relevant question is “when should the plaintiff, as a
reasonable person, have known of the relevant facts?”[1139]
The Commission considered that this option “strikes the desired balance between
a purely objective and a subjective standard of reasonableness.”[1140] We recommended the addition of
the word “reasonably’ to the Alberta formula, in order to emphasis the
intention to apply the “reasonable man” test.[1141]
Those recommendations have not been implemented.
4.122
Under the English Limitation
Act 1980, as amended, the date of knowledge for the purpose of
defective products litigation is the date on which the plaintiff first had
knowledge of the following facts:
(a) Such facts about the damage caused by the defect as would lead a
reasonable person who had suffered such damage to consider it sufficiently
serious to justify his instituting proceedings for damages against a defendant
who did not dispute liability and was able to satisfy a judgment; and
(b) That the damage was wholly or partly attributable to the facts and
circumstances alleged to constitute the defect; and
(c) The identity of the defendant.
4.123
The 1980 Act, as
amended, provides that the extent of a plaintiff’s knowledge as to whether or
not facts or circumstances constituted a defect, or as to the existence or
otherwise of a right of action, are not relevant to the determination of the
date of knowledge.[1142]
4.124
Under the Irish Liability
for Defective Products Act 1991, the date of knowledge is the date on which
the plaintiff became aware, or should reasonably have become aware, of the
following:
·
the damage;
·
the defect; and
·
the identity of the
producer.[1143]
4.125
This formula has the
benefit of simplicity, by comparison to its complex English counterpart.
4.126
The Commission is of
the view that in order to achieve maximum clarity, it is essential that the
ingredients of the “date of knowledge” are spelled out precisely in
legislation. The legislation should state – clearly and directly – what
knowledge is required in order for the limitation period to run. At the
same time, it is important for the date of knowledge test to be simple and
easily understood.
4.127
The formulation of a
general discoverability test, applicable across the board to a wide variety of
actions, has been addressed in a number of jurisdictions. Some of those
formulations will now be explored.
4.128
In its seminal work
published in 1986, the Alberta Institute formulated a general discoverability
rule, designed with simplicity in mind, which would apply to a wide range of
civil actions. The Institute carried out a detailed analysis of the
amount of knowledge that a plaintiff must possess in order to trigger the
running of the limitation period. It listed five types of knowledge that
it considered could be used in formulating a functional discovery rule:-
(i)
Knowledge of the harm sustained;
(ii) Knowledge
that the harm was attributable in some degree to conduct of another;
(iii) Knowledge of the
identity of the person to whose conduct the harm was attributable;
(iv) Knowledge
that the harm was sufficiently serious to have justified bringing an action;
and
(v) Knowledge
that an action against the defendant would have a reasonable prospect of
success, as a matter of law.[1144]
4.129
The Institute adopted a
solution containing the types of knowledge listed at (i) to (iv), to exclusion
of type (v). It noted that type (iv) involves a significant value
judgment which gives the court some latitude in determining the date of
discoverability. With that in mind, the Institute did not recommend the
adoption of judicial discretion.
4.130
Under the revised
Alberta Limitations Act 2000, which broadly enacted the recommendations
of the Alberta Institute, the date of knowledge is the date on which the
claimant first knew, or in the circumstances ought to have known, all of the
following:
(i)
That the injury had occurred; and
(ii)
That the injury was attributable to conduct of the
defendant; and
(iii)
That the injury warrants bringing proceedings, assuming liability on the part
of the defendant.[1145]
4.131
This formulation
differs from the English formula in that it is a great deal simpler and it does
not focus on the ‘significance’ of the injury. Moreover, it focuses on
what the claimant actually knew or should have known in the circumstances, and
not on what a fictional reasonable man ought to have discovered. A
similar formulation was recommended by the New Zealand Law Commission,[1146] and by the Law Reform Commission of
Western Australia.[1147]
4.132
In 2001, the Law
Commission for England and Wales published its final recommendations on the
introduction of a core limitations regime. It noted that over 80% of
consultees were in favour of the retention of the requirement that a plaintiff
know that the injury, loss, damage or benefit was “significant”. It
considered that such a requirement serves the following dual purpose:-
“First, it delays the start of the limitation period to protect the
claimant who has received an injury, or suffered damage or loss, which at first
seems trivial when it later becomes clear that the injury, loss or damage is
far more serious.
Secondly, it reduces the pressure on a claimant who has received a
trivial injury or loss to bring proceedings immediately, without waiting to see
if the injury or loss gets worse, for fear of being time-barred. Without this
assurance the amount of premature litigation could significantly increase.” [1148]
4.133
The Law Commission
recommended that the ‘date of knowledge’ should be the date on which the
claimant has actual or constructive knowledge of the following facts:-
(1) The facts that give rise to the case
of action;
(2) The identity of the defendant; and
(3) Where injury, loss or damage has
occurred or a benefit has been received, that the injury, loss, damage, or
benefit are significant.[1149]
4.134
It concluded that there
was no alternative to defining ‘significance’ in the manner already defined and
it therefore proposed that a claimant would be aware that the injury, loss,
damage or benefit was “significant” where:-
(1) The claimant
knows the full extent of the injury, loss or damage suffered, or of any benefit
obtained by the defendant; or
(2) A reasonable
person would think that, on the assumption that the defendant does not dispute
liability and is able to satisfy a judgment, a civil claim was worth making in
respect of the injury, loss, damage or benefit concerned.[1150]
4.135
Thus, the Law
Commission followed the approach of the current law with regard to the
definition of the term “significant”.
4.136
It further recommended
that a lack of knowledge that the facts would give rise to a cause of action
should, as a matter of law, be irrelevant.[1151]
It also proposed that ‘actual knowledge’ should not be statutorily defined and should be
treated as a straightforward issue of fact which does not require elaboration.[1152] The Law Commission recommended that a claimant
be considered to have ‘constructive knowledge’ of the relevant facts when he or
she, in his or her circumstances and with his or her abilities, ought
reasonably to have known of the relevant facts.[1153]
4.137
The Law Commission
recommended that the claimant should not be treated as having constructive
knowledge of any fact that an expert might have acquired unless the claimant
acted unreasonably in not seeking advice from an expert. Moreover, where
the claimant has in fact consulted an expert, he or she should not be fixed
with constructive knowledge of any information that the expert acquired and
failed to communicate to the claimant, or failed to acquire.[1154] Recommendations were additionally as to
the relevance of the knowledge of the plaintiff’s agents, the application of
the ‘date of knowledge’ test to corporate organisations, and the application of
that test in cases involving joint-claimants or assignments.[1155]
4.138
As a result of
criticism of the model employed under the English Limitation Act 1963, a
new formula for the running of the limitation period in difficult cases was
devised - the use of alternative starting points running the date of accrual or
from the date of knowledge (if later). These have been employed in a
piecemeal fashion in order to remedy injustices as they arise.
4.139
Alternative starting
dates have been applied to actions in relation to latent personal injuries or
property damage, and defective products. In some jurisdictions the
alternatives are supplemented by judicial discretion while in others, they are
not. There is little consistency in the manner in which the alternative
starting dates have been applied.
4.140
Alternative starting
dates were first introduced in England for the running of the limitation period
in personal injuries claims.[1156]
As seen above, under the English Limitation Act 1980, the
limitation period for such actions begins to run from either:
(a) The date of accrual; or
(b) The date of knowledge (if later).[1157]
4.141
In addition, the courts
in England and Wales have a broad discretion to override the limitation period
even where the plaintiff had knowledge before that date, where the court
considers it equitable to do so.[1158]
No long-stop limitation period applies, and there is no limitation on the time
after which the court can exercise its discretion. This is further
discussed at page 269 below. Analogous provisions have been introduced in
Scotland.[1159]
4.142
Under this model, the
limitation period will only begin to run on the date of accrual when the
claimant discovered the cause of action at that date. Otherwise, the
limitation period will run from the date of knowledge. The Alberta
Institute has pointed out that under this system, the ‘date of knowledge’ is
not an alternative to the date of accrual; instead, it completely abrogates the
date of accrual test. The Institute found this to be “unnecessarily
complex and confusing”. It expressed its disapproval as follows:-
“If a discovery rule is ultimately to control the beginning of a limitation
period, we do not think that the statute should initially apply an accrual rule
and then subsequently substitute a discovery rule; the discovery rule should be
used in the first place.”[1160]
4.143
A system of alternative
starting dates analogous to the English system was introduced in Ireland under
the Statute of Limitations (Amendment) Act 1991 for personal injuries
actions[1161]
although under the 1991 Act no long-stop period applies and no judicial
discretion is provided for.
4.144
Following the
recommendations of the Scarman Committee in 1984,[1162]
the English Latent Damage Act 1986 amended the Limitation Act 1980 so
as to introduce alternative limitation periods for actions in respect of
latent damage not involving personal injury. Under the 1980 Act, as
amended, the limitation period is either:
(a) Six years from the date of accrual;
or
(b) Three years from the “starting
date”, if that period expires later than the date of accrual.[1163]
4.145
The definition of the
“starting date” is discussed at page 207 above. A 15-year long-stop applies to
these cases, running from the last date of the act or omission giving rise to
the cause of action:
(a) which is alleged to constitute
negligence; and
(b) to which the damage in respect of
which damages are claimed is alleged to be attributable (in whole or in part).[1164]
4.146
This “overriding time-limit”
applies irrespective of whether the cause of action has accrued.[1165]
4.147
The English Limitation
Act 1980 also applies alternative starting points to actions in respect of
defective products under the Consumer Protection Act 1987 where the
damage alleged consists of or includes personal injury or damage to or loss of
property.[1166]
The limitation period runs for three years either from accrual or from
the date of knowledge (if later).[1167]
The courts have discretion to extend this limitation period, but only where the
cause of action includes personal injuries.[1168]
4.148
Alternative starting
points also apply to actions for damages in Ireland under the Liability for
Defective Products Act 1991, as seen above at page 77. The three year
limitation period runs from the date of accrual or the date of knowledge (if
later).[1169]
A ten-year long-stop limitation period applies, running from the date on which the producer put into circulation the actual
product which caused the damage, unless the injured person has in the meantime
instituted proceedings against the producer.[1170]
There is no judicial discretion to extend this limitation period in Ireland.
4.149
The introduction of
alternative starting dates would mean that the familiarity of the accrual test
would be retained, thereby ensuring consistency in the rules applicable to the
running of limitation periods for different causes of action, while justice
would be ensured for plaintiffs who are unable to discover their cause of
action for a period of time after the date of accrual.
4.150
It has been argued that
where alternative starting dates are employed, the original limitation period
becomes redundant and the reality is that the limitation period runs from the
date of knowledge in all cases.[1171]
The Law Reform Commission of Western Australia has noted as follows:
“Either
the damage is immediately discoverable, in which case the limitation period
starts running straight away, or it is not discoverable, in which case the
limitation period does not start to run until it becomes discoverable.”[1172]
4.151
The Alberta Institute
questioned the practice of setting a fixed limitation period running either
from accrual or discoverability, for two reasons. First, the traditional
fixed limitation period running from accrual was designed to allow plaintiffs
enough time to discover the cause of action, attempt to settle and assert his
claim. Where a discovery rule applies in the alternative, the period of
limitation running from discovery should not be the same length as the period
of limitation running from accrual - instead, the period running from discovery
should be shorter as no time is needed thereafter to allow the claimant to
discover the cause of action.[1173]
The introduction of two different limitation periods, dependent on the
date on which the period begins to run, would contribute to the complexity of
the law and subvert the apparent simplicity imported by the introduction of a
discoverability rule.
4.152
The second reason for
which the Alberta Institute challenged the practice of setting alternative
starting points is that categories of action were ascribed different lengths of
limitation period based on the usual time required for discovery for that type
of action. It was thought that some types of action would tend to be
discovered more quickly than others, and this was reflected in the applicable
limitation periods. Where the limitation period runs from the date of
discovery, these considerations no longer apply.[1174]
4.153
The Alberta Institute
instead recommended the adoption of a single running date, namely the date of
discovery.
4.154
In a Consultation Paper
published in 1998 on the subject of the limitation of actions in contract and
tort excluding personal injuries, the Commission was divided as to whether
discoverability alone would function as the sole starting point for the running
of the limitation period, or whether it should function as an alternative to
the accrual test.[1175]
A number Commissioners expressed a preference for discoverability as the sole
test, as this would obviate the complexity involved in the initial
ascertainment of accrual, followed by the application of a discoverability
test, with a calculation as to which is later. In the Report published on
the subject in 2001, the Commission agreed that this option had much to offer in
terms of simplicity and certainty in the law.[1176]
4.155
The Commission
recommended that discoverability should be introduced only to deal with latent
loss. It was the Commission’s view that by retaining the accrual test,
any advantage for a plaintiff stemming from the date of accrual in cases of
obvious or patent loss, or indeed in certain latent damage cases, could be
retained.[1177]
We did not see any reason to abolish the accrual test as the starting point of
the limitation period for cases of patent or obvious loss. It was
considered that the date of accrual generally works well in such cases, since
this date does not usually differ from the date of the discovery of the damage.[1178] The Commission was influenced by
the desirability of consistency in the law and cohesiveness between the
different limitation periods that exist for different types of action.[1179]
4.156
The Commission did not
consider that it would be appropriate to recommend an entirely separate regime
for patent loss in tort and contract, excluding personal injury, as the accrual
test applied to the general law of limitations outside the scope of that
Report.[1180]
It was noted, however, that there is a need for a re-examination of the entire
law of limitations.[1181]
4.157
The Commission
therefore recommended the adoption of alternative starting dates for actions
claiming damages for breach of duty whether the breach occurs in tort,
contract, statute or independent of any such provision (with the exception of
libel, slander or injurious falsehood).[1182]
Under this recommendation, the limitation period for such actions would be
either:
(a) Six years from the date on which the
cause of action accrued; or
(b) Three years from the date of
discoverability.[1183]
4.158
The Commission
considered that the introduction of alternative starting dates gives the
plaintiff the best of both worlds, while leaving the defendant no worse than
under the present law.[1184]
4.159
The Commission recalls
that the date from which the basic limitation period should run should be
chosen so as to eliminate the difficulties that arise with respect to the date
of accrual, to ensure that the limitation period does not begin to run before
the plaintiff knows of its existence, and to remedy any injustice that might
arise if a short basic limitation period was to run from the date of the act or
omission giving rise to the cause of action. Accordingly, the Commission has
concluded, on the basis of the analysis in this Part of the Chapter, that the
basic limitation period should run from the date of knowledge of the plaintiff.
4.160
The Commission provisionally recommends that
the basic limitation period should run from the date of knowledge of the
plaintiff.
5
5.01
In this Chapter, the
Commission turns to examine the concept of an ‘ultimate limitation period’ or
‘long-stop’ limitation period. The ultimate limitation period is a period of
limitation beyond which no action can be brought, even if the cause of action
has not yet accrued or is not yet discoverable.
5.02
In Part B, the
Commission examines the history of ultimate limitation periods. In Part C, the
Commission re-examines its previous recommendations on the introduction of
ultimate limitation periods in specific civil actions. In Part D, the
Commission examines the range of ultimate limitation periods enacted in other
States, which include periods of 10, 15 and 30 years’ duration. In Part E, the
Commission examines the issue of the dates from which the ultimate limitation
period should run, again based on a comparative analysis of the situation in
other jurisdictions. In Part F, the Commission examines the various approaches
that have been taken to the application of ultimate limitation periods in
personal injuries actions.
5.03
A ‘long-stop’ or
‘ultimate limitation period’ is a period of limitation beyond which no action
can be brought, even if the cause of action has not yet accrued or is not yet
discoverable. The idea of an ultimate limitation period dates back as far
as the Real Property Limitation Act 1833, where it was possible to
extend limitation periods for actions to recover land in the event of infancy
or other disability only up to a period of 40 years from the date on which the
cause of action accrued.[1185]
This period was later reduced to 30 years.[1186]
Such provisions provide support to the security of title to land, since a
vendor of land must show a chain of title to the land commencing at least 30
years before the date of the sale. Such provisions are not, however, confined
to land actions, and have been adapted to many other actions. England and
Wales, New Zealand and most Australian and Canadian jurisdictions have retained
such ultimate limitation periods.
5.04
Modern ultimate
limitation periods were first introduced in New South Wales and British
Columbia. Many other jurisdictions have followed suit.
5.05
The introduction of a
generally-applicable ultimate limitation period would not be without precedent
in Ireland. As discussed already in Chapter 2, a 10 year ultimate
limitation period already applies at present in Ireland as required by the 1985
EC Directive on Product Liability,[1187]
implemented by the Liability for Defective Products Act 1991[1188] (this does not apply to product
liability claims based on the common duty of care of manufacturers and
producers).
5.06
The purpose of an
ultimate limitation period is to achieve certainty in the legal system.
While the introduction of a discoverability test swings the balance in
favour of plaintiffs, the introduction of a complementary ultimate limitation
period would function as a safeguard for defendants against the risk of
liability for an indefinite period.[1189]
It has been noted that ultimate limitation periods are “essential for the
achievement of the objectives of a limitations system.”[1190]
5.07
It is arguable that
statutes of limitations should not allow an indefinite length of time for the
bringing of an action. The premise is that after a lengthy period has elapsed,
“the slate should be cleaned at this stage for the peace and repose of the
collective society and its individual members.”[1191] After the lapse of a decade or
more following the events giving rise to the cause of action, the vast majority
of claims have been litigated, settled or abandoned, giving rise to the
following argument:-
“By this time, the cost burden imposed on potential defendants, and
through them on the entire society, of maintaining records and insurance to
secure protection from a few possible claims will have become higher than can
reasonably be justified relative to the benefits which might be conferred on a
narrow class of possible claimants.”[1192]
5.08
Ultimate limitation
periods have the advantage of certainty, because one they have been reached,
there defendant knows where he stands.[1193]
The defendant will not be unfairly asked to respond to, and defend, a claim
after a significant passage of time. In general, the longer the time that
elapses after an event, the greater the chances of stale testimony and evidence
being adduced before the courts. As was adeptly put by the New Zealand
Law Commission:
“Memories can dim. Witnesses can die or disappear. Records can be
disposed of. Changes (in land values for example, or professional standards)
can make it very difficult for expert witnesses to take their minds back to
what the situation was some years previously. It can be difficult or impossible
for civil engineers (for example) to assess the position if land or chattels
are no longer available either in the state they were in at the relevant time
or at all.”[1194]
5.09
This inevitably makes
the judge and / or jury’s decision more difficult. It follows that the
longer the limitation period, the great the risk of injustice to the parties
and the less the opportunity to have a fair trial.
5.10
Ultimate limitation
periods reduce the risk of injustice to defendants. They therefore primarily
protect the interests of the defendant. The introduction of a generally
applicable ultimate limitation period, combined with a basic limitation period
running from discoverability, would ensure that prospective defendants would
not have to indefinitely renew insurance cover. This is particularly important
for retired professionals to whom the only available professional negligence
cover is on a claims-made basis.[1195]
The introduction of an ultimate limitation period would also clarify the
point until which records should be maintained and after which they could be destroyed.
5.11
Moreover, ultimate
limitation periods compensate for the loss of certainty that is inherent in the
adoption of a limitation regime dependent on the date of knowledge of the
relevant facts by the plaintiff. It has been suggested that this is
particularly important in the case of those causes of actions that were
previously subject to a limitation period starting from a fixed point, i.e. the
date of accrual.[1196]
5.12
Ultimate limitation
periods are open to the criticism that they will either “too long to serve any
very useful purpose in the majority of cases or too short to cover those cases
with which we are particularly concerned, namely insidious diseases.”[1197] It has been argued that even a
30-year ultimate limitation period might be too short to safeguard plaintiffs’
interests in personal injuries cases in particular, especially in cases
involving diseases that have a very long latency period.[1198]
5.13
Ultimate limitation
periods generally apply irrespective of whether or not a cause of action has accrued,
or is discoverable. It is at a minimum arguable that if a plaintiff’s right of
action expires before it is possible to discover the existence of damage, the
rights given to such persons by the law are illusory.[1199]
The introduction of an ultimate limitation period may, therefore, be
unfavourable towards plaintiffs who have not yet discovered a meritorious cause
of action.
5.14
Furthermore, the
Commission has previously recognised that if an ultimate limitation period of X
years is introduced, producers may be able to design a product with a planned
obsolescence of (X + 1) years, thereby defeating the purpose of the ultimate
limitation period.[1200]
5.15
The Commission
considers that the advantages of introducing an ultimate limitation period by
far outweigh the disadvantages and therefore recommends the introduction of an
ultimate limitation period of general application. The Commission
considers that this would fulfil the need for the law of limitations in Ireland
to be imbued with flexibility.
5.16
The Commission provisionally recommends the
introduction of an ultimate limitation period of general application.
5.17
The Commission has, on
a number of occasions, had the opportunity to consider the introduction of an
ultimate limitation period and has previously recommended the introduction of
such a period for latent damages actions (excluding personal injuries) but not
for actions in respect of defective premises and latent personal injuries.
5.18
In 1982, the Commission
recommended against the introduction of an ultimate limitation period for
actions in respect of defective premises. A submission was made to the
Commission that no action should lie after a period of ten years had elapsed from
the date of doing the work. The Commission took account of that
submission but reached the following view:-
“[T]he importance of protecting defendants from stale or dilatory claims
was, in the Commission's view, outweighed by the injustice of denying to a
plaintiff a right of action for injury or damage just because that injury or
damage had not manifested itself within a given period.”[1201]
5.19
In 1987, the Commission
opposed the introduction of an ultimate limitation period for latent personal
injuries actions.[1202]
The Commission noted that there was considerable debate as to the merits
and disadvantages of the ten-year ultimate limitation period introduced under
the Liability for Defective Products Act 1991, and acknowledged that the
insurance industry would understandably welcome a long-stop as this would
enable them to close their books on particular claims.[1203]
It was concluded however that the objective of the Commission’s recommendations
as to the limitation of actions in respect of latent personal injury – i.e. the
prevention of injustice through the introduction of a date of knowledge test –
could, in some cases at least, be frustrated if an ultimate limitation period
was introduced and, moreover, that:-
“[H]owever long or short the “long stop” period ultimately settled on
may be, it must of its nature be crude and arbitrary and have no regard to the
requirements of justice as they arise in individual cases.”[1204]
5.20
Citing the Supreme
Court decision of Ó Domhnaill v Merrick,[1205]
the Commission considered it sufficient that the courts have an inherent
jurisdiction to strike out proceedings where there is inordinate and
inexcusable delay, even where the limitation period has not yet expired.[1206]
5.21
In 1998, the Commission
provisionally recommended the introduction of a 15-year ultimate limitation
period for actions in contract and tort other than personal injuries actions.[1207] The Commission was satisfied
that such a provision would withstand constitutional challenge.[1208] We expressed the view that:-
“A ‘long-stop’ which would counterbalance the [proposed] discoverability
provision would ensure that the constitutional rights of plaintiff and
defendant are upheld equally.”[1209]
5.22
The Commission
acknowledged that no ultimate limitation period applied to personal injuries
actions under the Statute of Limitations (Amendment) Act 1991, but the
following view was expressed:-
“We are nevertheless of the view that such a distinction can be
justified on the basis that in cases of personal injury, the right of the
plaintiff should be ascribed a greater weight than that of the defendant, at
least as an initial point of departure.”[1210]
5.23
This recommendation was
affirmed in the Report published on the same topic in 2001, in which the
Commission suggested that an ultimate limitation period should be introduced
for actions claiming damages for breach of duty whether the breach occurs in
tort, contract, statute or independent of any such provision (with the
exception of libel, slander or injurious falsehood).[1211]
The Commission recommended that the long-stop should last for 10 years for such
actions, running in general from the date of accrual of the cause of action.[1212] In addition, the Commission
suggested that special rules should be introduced to govern the starting date
for the long-stop limitation period in construction liability cases.[1213] This recommendation has not been
implemented.
5.24
When considering the
limitation of actions arising out of non-sexual child abuse, the Commission
considered – among other options - the introduction of a long, fixed limitation
period commencing from the age of majority within which plaintiffs could
initiate proceedings in respect of abuse suffered by them as a child.[1214] It might be said that this
option would be similar to the introduction of an ultimate limitation period
beyond which no claims could be commenced.
5.25
The Commission
acknowledged that this option would import clarity and certainty into the law
in this area. The following advantage was identified:
“While the abolition of limitation periods would leave defendants
subject to open-ended claims, this model would provide defendants with
ascertainable and clear protection against stale claims. From the point
of view of fairness to the defendants, such a limitation would mean that they
would be exposed to a lesser risk of open-ended claims and the problem of stale
evidence.”[1215]
5.26
As seen above, the
Commission invited submissions as to whether either of the following limitation
periods should be adopted:
(i)
A fixed limitation
period of 12 years, subject to extension by the courts for up to three years,
running from the age of majority; or
(ii) A fixed limitation period of 15
years, running from the age of majority.[1216]
5.27
The period chosen for
the ultimate limitation period must be sufficiently long to ensure that it does
not rule out deserving claims that have not yet, for example, become
discoverable. It must balance the needs of the plaintiff, the defendant
and society as a whole. Economic considerations, such as insurance costs,
must be taken into account and the length of time chosen must be reasonable and
effective.
5.28
In general, the
ultimate limitation periods enacted in other jurisdictions have been of 10, 15
or 30 years’ duration. The following are some examples:
|
Jurisdiction |
Application |
Length |
|
Alberta |
Civil actions, generally |
10 years[1217] |
|
Australian Capital Territory |
Latent Damage |
15 years[1218] |
|
British Columbia |
Civil actions, generally |
30 years[1219] |
|
Certain actions against medical professionals |
6 years[1220] |
|
|
England and Wales |
Latent Damage |
15 years[1221] |
|
Defective products |
10 years[1222] |
|
|
Manitoba |
Civil actions, generally |
30 years[1223] |
|
New South Wales
|
Civil actions, generally |
30 years[1224] |
|
Personal Injuries |
12 years (+ 3)[1225] |
|
|
New Zealand (proposed) |
Civil actions, generally |
15 years[1226] |
|
Ontario |
Civil actions, generally |
15 years[1227] |
|
Saskatchewan |
Civil actions, generally |
15 years[1228] |
|
ULCC |
Civil actions, generally |
15 years[1229] |
|
Western Australia |
Civil actions, generally |
30 years[1230] |
5.29
There has been a
gradual trend of reduction of the length of the ultimate limitation period from
30 years to 10 or 15 years.[1231]
5.30
In 1986, the
Alberta Institute recommended the introduction of an ultimate limitation period
of ten years “after the claim arose”. This recommendation was based on the
following analysis:
“Within ten years after the occurrence of the events on which the
overwhelming majority of claims are based, these claims will have been either
abandoned, settled, litigated or become subject to a limitations defence under
the discovery rule. The class of remaining potential claimants will have
become very small […].”[1232]
5.31
The Institute
considered that the reasons for a limitations system “based only on peace and
repose, and economics” would justify an ultimate limitation period of ten
years.[1233]
In addition, the Institute was influenced by the cost burden on potential
defendants and, through them, on society as a while.[1234]
The Institute also considered the evidentiary reasons for a limitations system,
and in that regard observed as follows:
“By the time that ten years have passed after
the occurrence of the events on which a claim is based, we believe that the
evidence of the true facts will have so deteriorated that it will not be
sufficiently complete and reliable to support a fair judicial decision.
Adjudication under these circumstances can only detract from the credibility of
the judicial system, and undermine its effectiveness.”[1235]
5.32
Notwithstanding these
considerations, the Institute altered its view in the period intervening
between 1986 and 1989 and an ultimate period of 15 years was proposed in the
Institute’s Model Limitations Act. By this date, the Institute
considered that “a 10-year period is too short and would operate unfairly
against claimants.”[1236]
The current Alberta Limitations Act followed the Institute’s
earlier recommendations, however - it contains a 10-year ultimate limitation
period.[1237]
5.33
The Law Reform
Commission of Western Australia in 1997 expressed the view that 10 years is too
short a period to represent a satisfactory adjustment of the competing rights
of the parties, particularly where defective buildings are involved. That
Commission was of the view that in such cases, the plaintiff can legitimately
expect that the property he has paid for should last longer than 10 years
before it begins to fall down. It also stated that this rationale might
also be applied to professional negligence cases, where the client should be
able to expect that the advice given would prevent him from suffering loss either
immediately or in the future.[1238]
5.34
The New Zealand Law
Commission (NZLC) in 2001 recommended the introduction of a 10-year ultimate
limitation period, running from the date of accrual. The NZLC stressed that
“[a]rriving at an appropriate long-stop date cannot be a matter of
exactitude.” It based its choice on the period then applicable under
buildings legislation and proposed the following definition of the date
of accrual, to avoid confusion:
“[…] the date when all facts
necessary to establish the claim are in existence whether or not their
existence is known to the plaintiff.”[1239]
5.35
The NZLC has, however,
since changed its recommendation a 15-year ultimate limitation period, for
reasons discussed at page 233 below.
5.36
The British Columbia
Law Institute (“BCLI”) in 2002 recommended the introduction of a 10-year
ultimate limitation period (“ULP”) based on the following assertions:
“A 10 year ULP would […] ensure that the right to litigate is cut off at
a point where the costs to defendants outweigh the potential prejudice to a
small number of claimants who may lose the right to seek relief through the
courts. Few claimants would be affected by the reduction in time as it appears
that the vast majority of actions, including latent damage claims, are brought
within 10 years of the occurrence that gives rise to the claim.”[1240]
5.37
The BCLI considered
that a 10-year period would “create greater certainty in limitations law and
provide a reasonable balance between the interests of plaintiffs, defendants
and society.”[1241]
It noted that few reported cases had arisen where the gap between the
occurrence of the material elements of the claim and the start of an action was
significantly longer than ten years.[1242]
5.38
The Law Commission for
England and Wales has also recommended the introduction of a 10-year ultimate
limitation period. It provisionally recommended that personal injuries
and fatal injuries actions should be subject to a 30-year ultimate limitation
period[1243]
but this was rejected by a majority of consultees.[1244]
Its deliberations are discussed in more detail at page 246 below.
5.39
The majority of land
actions are currently subject to a 12-year limitation period. This length
therefore has the benefit of familiarity. Moreover, the introduction of a
12-year ultimate limitation period would obviate the need to bring in a
separate period for land actions.[1245]
5.40
As noted above, the
legislature of Alberta rejected the 15-year period that was recommended in the
Alberta Institute in its Model Limitations Act 1989. A 12-year
ultimate period was first considered by the legislature, but this was reduced
to ten years during caucus review.[1246]
The ten-year period adopted was in accordance with the original recommendation
of the Alberta Institute in 1986.[1247]
5.41
The New Zealand Law
Commission (NZLC) in 2007 recommended the introduction of a 15-year ultimate
limitation period.[1248]
It was particularly influenced by the adoption of 15 years as the
appropriate ultimate period by the Scarman Committee Report in 1984.[1249] The NZLC
suggested that the a 15-year ultimate period would reduce costs for business by
providing greater certainty as to when their liability was likely to end, and
by providing an opportunity for those persons to then ‘move on’. It further
considered that the long-stop period would allow appropriate insurance cover to
be taken.[1250]
5.42
A 15-year ultimate
limitation period has been recommended by the Law Reform Commission of
Australia[1251]
and the Uniform Law Conference of Canada.[1252]
A 15-year period has been introduced in Ontario[1253]
and Saskatchewan.[1254]
This is in accordance with the recommendations contained in the Alberta Model
Limitations Act 1989 - though this was not adopted in Alberta.
5.43
In its 1998
Consultation Paper on Limitations, the Law Commission for England and
Wales expressed concern that a 15-year limitation period would risk serious
injustice to plaintiff suffering from diseases that carry long latency periods,
and plaintiffs who suffered from sexual abuse as children. It
acknowledged that even a longer period than 15 years would not always protect
plaintiffs, but asserted that “a line has to be drawn somewhere” and
recommended the introduction of a special, 30-year long-stop for personal
injuries actions.[1255]
This recommendation was not, however, carried forward at the Report
stage, when it was recommended that no limitation period should apply to
personal injuries cases.[1256]
5.44
A 30-year ultimate
limitation period applies to most claims in British Columbia.[1257] This was first introduced in
1975.[1258]
The rationale behind the adoption of a relatively lengthy ultimate period was
that such a period would be sufficient to accommodate latent damage claims and
it would not expire until at least a decade after the age of majority was
attained. This would prevent any prejudice to plaintiffs who were minors at the
time of the occurrence of the material facts giving rise to the claim. Further,
the 30-year period would allow a creditor to take advantage of successive
confirmations.[1259]
5.45
Piecemeal changes have
been made to the 30-year ultimate limitation period since 1975. A six-year
ultimate limitation period has been introduced for claims against medical
practitioners, hospitals and hospital employees.[1260]
A 10-year ultimate limitation period will apply to actions against a
dentist based on professional negligence or malpractice, once the relevant
section is commenced.[1261]
The British Columbia Law Reform Commission in 1990 recommended the reduction of
the 30-year period to 10 years, which it considered would not in practice bar
many meritorious claims.[1262]
Its successor -the British Columbia Law Institute (“BCLI”) - reiterated this
recommendation in 2001, stating that the 30-year period is “far too long”[1263] and has a negative impact on
defendants, professionals, clients, the commercial sector and the courts
system. With respect to its impact upon defendants, the BCLI observed as
follows:
“Due to its long duration the ULP has little practical effect with
regard to protecting defendants from stale claims. It allows too much time to
pass before proceedings are instituted, making it difficult for defendants to
assemble evidence and witnesses.”[1264]
5.46
With regard to the
impact of the 30-year ultimate limitation period on professionals and in turn
on their clients, the BCLI noted:
“The 30 year ULP imposes significant expenses on defendants with regard
to maintaining records, evidence and insurance until the period has been
exhausted. Higher costs in the provision of goods and services form part
of the overhead that are typically passed on to clients through increased
prices. […] In some cases access to protective insurance is elusive as a
professional person may be susceptible to liability long after retirement, but
may not be able to obtain insurance coverage or may only be able to do so at
great expense.”[1265]
5.47
The BCLI also observed
that the 30-year ultimate limitation period has an adverse economic effecting,
owing to prolonged liability, with respect to the commercial sector as a whole:
“The fact that matters cannot be treated as at a close until the 30 year
period is extinguished creates an element of uncertainty about potential future
financial costs. As a result defendants may be unwilling to enter into
long-term arrangements and future transactions.”[1266]
5.48
As to its impact on the
courts system, the BCLI noted:
“[I]n those cases where stale claims arise under the general ULP courts
must expend valuable time and resources determining long past disputes. The
passage of time also affects the ability of the court to determine a claim
fairly. Unduly long limitation periods give rise to poor decisions, which
diminish confidence in the judicial system.”[1267]
5.49
The BCLI ultimately
concluded that the 30-year period weakens the limitations system.[1268] A ten-year ultimate period was
recommended, in its place.
5.50
The Alberta Institute
in 1986 acknowledged that the 30-year period was most likely chosen as a result
of “sensitivity to the plight of meritorious claims”, but considered
that this did not give proper weight to the interests of defendants.[1269]
5.51
As seen above, in its
recent project on Limitations, the Law Commission for England and
Wales provisionally recommended a 30-year limitation period for personal
injuries actions. This recommendation was not, however, carried forward
at the Report stage. The following concerns influenced the Law
Commission’s final decision on the matter:-
“The major
concern at the suggestion that a longstop should apply to personal injury
claims was that this would be unjust to claimants suffering from latent
diseases, where the disease in question does not manifest itself within the
long-stop period.[…] Some consultees also expressed concern that imposing a
long-stop in personal injury cases could unjustifiably bar claims being made by
victims of sexual abuse.”[1270]
5.52
The Law Commission
finally recommended that no long-stop period should apply to such actions,
stating as follows:-
“Increasing the length of the
long-stop would not guarantee that all claimants with latent disease claims are
covered, while making the long-stop too long to serve any useful purpose.”[1271]
5.53
In a Consultation Paper
published in 1998 on the limitation of non-personal injury actions, this
Commission recommended that the proposed ultimate limitation period should run
for 15 years.[1272]
This recommendation was the result of the following view:-
“[A] period of ten years is insufficient to cover many buildings cases,
and in cases of professional advice, such as where a defective will or
conveyance is at issue, the period is certainly too short.”[1273]
5.54
The provisional
recommendation was also influenced by the fact that a 15-year period applied
under the English Latent Damage Act 1986.[1274]
5.55
Following consultation,
however, the Commission altered its recommendation in favour of the
introduction of a 10-year long-stop, running from the date of accrual.[1275] The change followed the receipt
of strong recommendations made at a colloquium on the limitation of latent
damages actions, that the ultimate limitation period should not be 15 years
long, based on the evidentiary difficulties experienced after a long lapse of
time, and increased insurance costs.[1276]
The Commission was also influenced by the fact that in general, records must be
kept only for six years and professional indemnity insurance must be maintained
only for a run off period of six years.[1277]
Studies carried out in Ireland, Germany and France indicated that the majority
of latent defects manifest themselves within 10 years after accrual.[1278] The Commission concluded that a
10 or 12 year ultimate limitation period would be appropriate for actions in
respect of latent damages.[1279]
This was consistent with a trend in the construction industry to take out
10-year insurance cover, the 10-year long-stop under the Liability for
Defective Products Act 1991, and the 10-year liability period under the
Irish HomeBond scheme.
5.56
The Commission notes that the following are the
most frequently adopted lengths for ultimate limitation periods:-
i)
10 years,
ii)
12 years,
iii)
15 years, or
iv)
30 years.
5.57
Bearing in mind the
guiding principles set out earlier in this Paper, the Commission is of the
provisional view that a period of twelve years would be the most appropriate
for an ultimate limitation period. There is a broad familiarity with the
twelve-year period owing to its applicability in the guise of adverse
possession to actions to recover land. The Commission is mindful that the
length of the ultimate limitation period should not be so long as to allow for
the fair trial rights of the defendant to be diminished. It is considered
that there is, in many cases, a hidden injustice in allowing trials to proceed
more than twelve years after the date of the act or omission giving rise to the
cause of action.
5.58
The Commission
provisionally recommends the introduction of an ultimate limitation period of
general application of 12 years’ duration.
5.59
The following is a
series of examples of the dates from which the ultimate limitation period runs
in other jurisdictions.
|
Jurisdiction |
Running from: |
|
Alberta |
Date on which the claim arose. |
|
Australian Capital Territory Latent Damage |
Date of the act or omission that gave rise to the cause of action. |
|
British Columbia |
Date on which the action arose. |
|
England and Wales Latent Damage |
Date of the last act or omission of negligence. |
|
England and Wales Defective products |
Date on which product was last supplied.[1280] |
|
Manitoba |
Date of the acts or omissions that gave rise to the cause of action. |
|
New South Wales |
Date on which the limitation period ran. |
|
New South Wales Personal Injuries |
Date of the act or omission that gave rise to the cause of action. |
|
Ontario |
Day on which the act or omission on which the claim is based took place |
|
Saskatchewan |
Day on which the act or omission on which the claim is based took place. |
|
ULCC 2005 |
Date of the act or omission that gave rise to the cause of action. |
|
Western Australia |
Date of Accrual |
|
New Zealand (LRC) |
Date of the act or omission in question. |
5.60
It has been considered
that the adoption of the same starting point for the calculation of all
limitation periods (i.e. basic and ultimate) would lead to “greater certainty
for everyone”, and would provide a “common standard for all other claims.”[1281] Arguably, that this would
encourage plaintiffs to be vigilant and not to sit on their rights, waiting for
their claim to mature. Additionally, it would emphasise that the
discovery principle exists for exceptional cases.[1282]
5.61
The following models
may be considered:
i)
Alberta
ii)
New Zealand
iii) England and Wales
iv) Ontario
v)
British Columbia
5.62
In its 1986 Report, the
Alberta Institute recommended that the ultimate limitation period should generally
run from the date of accrual of the relevant cause of action.[1283] It phrased its recommendation,
however, so that the starting point is the date on which the claim arose.[1284]
5.63
At first glance, it may
be thought that the “date of accrual” and the “date on which the claim arose”
are effectively the same. There is, however, an important distinction
between the ways in which these two starting points work. The
Institute was conscious that the accrual rule is “unsatisfactory” in some cases
and that in others its uncertainty produces problems. It observed that
these difficulties would be “greatly diminished in practice” with the introduction
of a general discoverability rule, and the introduction of special rules
governing the date on which a claim is deemed to ‘arise’ in respect of
certain types of claims where the accrual rule has been “particularly
troublesome” in the context of limitations law.[1285]
Special rules were formulated for the following actions: [1286]
(i)
Claims resulting from a
continuing course of conduct or a series of related acts;
(ii) Claims based on a breach of the duty
of care;
(iii) Fatal injuries actions;
(iv) Claims based on a demand obligation;
(v) Claims for contribution.
5.64
The Institute was clear
in its recommendation that the special rules proposed should not affect the
general law with respect to accrual. Rather, those rules should apply
only to the starting point of the ultimate limitation period, i.e. the “date on
which the claim arose”. Thus, the rules governing the “date on which the
claim arose” for the actions discussed below are not the same as the rules
governing the accrual of those actions, and therein lies the distinction
between the “date of accrual” and the “date on which the claim arose”.
5.65
There follows a
discussion of the special rules proposed with respect to the five categories of
claim that the Institute identified as posing particular problems under the
accrual rule.
5.66
Problems arise with
respect to actions based on a continuing course of conduct, or a series of acts
of omissions. For example, in cases where there have been successive acts
of negligence, each separate act will result in the ultimate limitation period
beginning to run again at a date after the original act of negligence.
5.67
This Alberta Institute
considered the question to be as follows:-[1287]
“Insofar as the objectives of limitations law
are concerned, it doesn’t matter how many breaches of duty there were, how many
different duties were breached, how many claims there are, or when they
accrued, if the claims all resulted from a continuing course of conduct or a
series of related acts or omissions. In this situation the policy issue
is when should the ultimate period begin: then the legally wrongful conduct
began or when it ended.”
5.68
The Institute
ultimately recommended that the ultimate period should run from the date on
which the conduct ended;[1288]
or, phrased differently, “when the conduct terminated or the last act or
omission occurred.”[1289]
In the legislation that arose from the Institute’s recommendations, the
ultimate limitation period runs from the date on which the claim arose.
That date is defined so that claims that are based on any number of breaches of
duty, resulting from a continuing course of conduct or a series of related acts
or omissions, are deemed to ‘arise’ when the conduct terminates or the last act or
omission occurs.[1290]
5.69
Under the common law
rules governing accrual, actions based on a breach of duty do not accrue until
damage is suffered by the plaintiff, because actions for breach of duty are not
actionable per se but, rather, require proof of actual damage.
5.70
The Alberta Institute
in 1986 addressed the problems associated with the accrual test for claims
involving damage, or what the Institute called ‘harm’, including ‘harm’ by way
of personal injury, property damage, economic loss, nominal damage, or
otherwise. The Institute noted as follows:-
“With respect to harm, there is no functional reason consistent with
limitations policy to distinguish between claims based on contract, tort,
statute or duties of care based on any of the three.” [1291]
5.71
It noted that a breach of duty will
always require some conduct - whether an act or omission - on the part of the
defendant. While
the date on which the defendant’s conduct occurs and the date on which damage
is suffered frequently coincide, there have been many instances where those
dates have been months, years or even decades apart. Moreover, the
manifestation of that damage may not occur until a later date, still. The Institute noted that
if the ultimate limitation period was not to begin running until the damage
occurred, decades may have passed from the date of the defendant’s conduct, and
the ultimate period might not provide adequate protection to the defendant.[1292]
5.72
The Institute therefore
recommended that the ultimate period for a claim based on a breach of a duty
should begin to run when the defendant’s careless / negligent conduct occurs,
irrespective of whether the duty of care was based on contract, tort, statute,
or otherwise. The Institute considered that this should apply in all
cases where damage is a constituent element of the claim based on the breach of
duty. It recognised that this meant that the ultimate period may begin to
run at a time when the cause of action has not yet accrued or been discovered,
as damage may not yet have occurred, but felt that it was necessary to run the
ultimate period from this date in order to secure the objectives of securing
report for the society of potential defendants.[1293] The Institute was
of the following view:-
“This problem of legal principle is inescapable because there is no
feasible alternative consistent with limitations policy.”[1294]
5.73
In the
legislation enacted following these recommendations, the ultimate limitation
period runs from the date on which the claim arose, and claims based on a
breach of duty are defined so as to ‘arise’ when the conduct, act or omission
occurs.[1295] Thus, a uniform
approach applies where claims in tort and contract overlap.
5.74
Demand obligations
(e.g. a promise to pay a debt on demand) are obligations for which there is no
fixed time or specific conditions for performance. They often arise
between friends and family where money is lent without the parties establishing
terms for repayment. Repayment can, therefore, be required at any time
after the loan is made.[1296]
5.75
At common law, the
running of the limitation period for a cause of action based on a demand
obligation differs from the normal running of the limitation period. In
normal circumstances, the date on which the limitation period starts to run is
chosen with reference to the date on which a wrong occurred. This
is not the case with demand obligations, however; the limitation period in such
cases starts to run at the date on which the obligation was created - e.g. the
date on which the loan was made.
5.76
The Alberta Institute
recommended that the ultimate period for such claims should being to run when a
default in performance occurred after a demand for performance was made.[1297] This recommendation was enacted
and continues to apply today.[1298]
5.77
The Alberta Institute
in 1986 addressed the difficulties associated with the date of accrual in fatal
injuries actions, and recommended that the ultimate limitation period should
run from the date of the conduct which caused the death on which the claim is
based. This recommendation was based on the same rationale as applied to
those made in respect of breach of duty, discussed above, which the Institute
phrased as follows:-[1299]
“The problem is that, just as careless conduct may have occurred many
years before it results in damage, and the possible accrual of a claim, so the
conduct which eventually causes a death may have occurred more than a decade
before the resulting death. If the ultimate period if to give meaningful
protection to defendants, it must begin at the time of a defendant’s conduct.”
5.78
Under the legislation
enacted following the Institute’s recommendations, the ultimate limitation
period for fatal injuries actions runs from the date on which the conduct that causes the death,
on which the claim is based, occurs.[1300]
5.79
A claim for
contribution arises where damage or loss is caused by the tortious conduct of
more than one person. The plaintiff (i.e. the person who has suffered the
wrong) can recover damages from any one of the tortfeasors. The
tortfeasor who is ordered to pay the entirety of the damages may then seek to
recover from another tortfeasor, or multiple other tortfeasors, a contribution
towards the payment of those damages.
5.80
The Alberta Institute
acknowledged that the question of when the ultimate period for claims for
contribution should begin to run raises “a complex and difficult issue”.[1301] It identified three possible
dates for the running of the ultimate limitation period against the claimant
tortfeasor:-
i)
The date of accrual of
the cause of action in respect of the wrong suffered by the plaintiff;
ii)
The date on which
liability for the wrong suffered by the plaintiff is imposed on the claimant
tortfeasor; or
iii) The date on which the claimant
tortfeasor was made a defendant under the claim upon which the claim for
contribution could be based.[1302]
5.81
The Institute
considered that the first option was “unduly harsh” and the second would
unnecessarily extend the operation of the ultimate period.[1303]
5.82
It is evident that the
third option is a date that will occur between dates (i) and (ii). This
date has the weakness that the cause of action of the claimant tortfeasors
against the other tortfeasors has not yet accrued at this date, because
liability has not yet been imposed on the claimant tortfeasor in respect of the
damages to be paid to the plaintiff. The Institute considered, however,
that this weakness is mitigated by the fact that once the claimant tortfeasor
is made a defendant in respect of a particular wrong alleged, the defendant has
ample time to make investigations into whether or not there are other persons
who might also be liable for the damage suffered by the plaintiff.[1304] The Institute noted:-
“As a matter of practical reality this problem is more a matter of sound
than fury. When any tort-feasor is made a defendant in a civil proceeding
which originated with a tort claim, it is in his interest to make all
reasonable efforts to discover all the other tort-feasors liable for the
damages, to join them in the proceedings, and to bring claims for contribution
as soon as possible.”[1305]
5.83
The Institute
ultimately recommended that the ultimate period for a claim for contribution
should begin when the claimant for contribution was made a defendant under, or
incurred liability through, the settlement of a claim seeking to impose
liability upon which the claim for contribution could be based, whichever
occurs first.[1306]
This recommendation was enacted, and continues to apply today.[1307]
5.84
A limitations scheme
based on the principle that both the basic and ultimate limitation periods
should run from the date of the defendant's act or omission – rather than from
the date of accrual - was first suggested by the New Zealand Law Commission
(NZLC) in 1988.[1308] Thus, focus would be centered
on the defendant’s conduct rather than on the date of accrual. The NZLC
considered that this would make the starting point of the limitation periods
must clearer than under the accrual rule.
5.85
The NZLC noted that in
most cases, the date of the defendant’s act or omission would be clear.
In relation to contract, it would be the date of the breach – as is the
case under the accrual rule. In other cases, the date of the defendant’s
act or omission may be earlier that the date of accrual. In negligence
cases, for example, the date of the defendant’s act or omission will not necessarily
coincide with the date on which damage is suffered or loss is incurred.
In some cases, however, such as those where questions of status are
involved, no limitation period will begin to run as no act or omission will
occur. [1309]
5.86
The NZLC acknowledged
that difficulties might arise with continuing acts or omissions, where several
different starting points might be identifiable. It recommended special
provisions for the following claims:-
i)
Claims based on
demands;
ii)
Claims for conversion;
iii) Claims for contribution;
iv) Claims for indemnity;
v)
Certain intellectual
property claims.
5.87
While acknowledging the
problems associated with the accrual rule, the Law Commission for England and
Wales has recommended that the ultimate limitation period should generally run
from that date, with an alternative starting point for actions in tort and breach of statutory duty
where loss is an essential element of the cause of action, namely the date of the act or omission giving
rise to the cause of action.
5.88
In its 1998 Consultation
Paper on the Limitation of Actions, the Law Commission provisionally
recommended that the ultimate limitation period for all causes of action
should run from the date of the act or omission giving rise to the cause of
action. It acknowledged that the adoption of this starting point might
result in hardship to plaintiffs where the damage was incurred at a time after
the date of the act or omission. This may occur, for example, in cases
involving major construction projects or where a disease is contracted as a
result of employment.[1310]
Nevertheless, it considered that as the discoverability rule swings the balance
in favour of the plaintiff, “the interests of defendants should be preferred
over those of plaintiffs in fixing the starting point for the long-stop
limitation period.”[1311]
5.89
In choosing this
starting point, the Law Commission was influenced by the fact that the ultimate
limitation period that currently applies in England and Wales for latent damage
claims starts from the date of the act or omission that is alleged to
constitute negligence, and the ultimate period for actions under the Consumer
Protection Act 1987[1312]
starts to run from the date of the act giving rise to the claim. It was
also influenced by the fact that the accrual test could “reintroduce the
incoherence and complexity caused by the different rules on the date of accrual
for different causes of action.”[1313]
It further accepted that the use of the accrual test as the starting point of
the ultimate period could destroy the purpose of the proposed ultimate
limitation period as defendants would not be protected if the cause of action
did not accrue until many years after the date of the act or omission giving
rise to the cause of action.[1314]
5.90
At the Report stage,
the Law Commission noted that a majority of consultees had supported its
provisional recommendation, and it observed:
“The date of the
act or omission giving rise to the cause of action has the advantage that it is
easier to ascertain than the date on which the claimant suffers loss. The
disadvantage is that in some cases loss is an essential element of the cause of
action and there is therefore no cause of action until the claimant has
suffered loss, which may be some time after the date of the act or omission
giving rise to the cause of action.”[1315]
5.91
The Law Commission was
particularly worried about the difficulty in ascertaining the date of the act
or omission “giving rise” to the cause of action where there have been a number
of acts or omissions by the defendant. The Law Commission therefore recommended
that in order to minimise these problems, the ultimate period should, in
general, run from the date of the accrual of the cause of action. It
expressed the following view as to this option:
“When loss is not an essential element of the cause of action, the date
on which the cause of action accrues will in most cases be the date of the act
or omission which gives rise to the cause of action. The courts will, however,
be able to draw on the guidance of the current law as to when a cause of action
accrues to identify this date.”[1316]
5.92
The Law Commission
acknowledged, however, that there would be difficulty in ascertaining the date
of accrual for actions in tort and breach of statutory duty that are not
actionable per se, i.e. where loss or damage is an essential element of the
cause of action and it is necessary to identify exactly when a plaintiff has
suffered injury, loss or damage in order to ascertain the date of
accrual. To offset this difficult, the Law Commission recommended that for causes of action in tort and
breach of statutory duty where loss is an essential element of the cause of
action, the ultimate
period should run from the date of the act or omission giving rise to the cause
of action.[1317]
This would mean that
for such actions, loss or damage would not have to have occurred in order for
the ultimate limitation period to begin running.
5.93
In its Consultation
Paper, in the context of its provisional recommendation that the
ultimate limitation period fun from the date of the act or omission giving rise
to the cause of action, the Law Commission asked consultees whether there
should be a special starting point for the ultimate period in the case of
construction-related claims. It suggested that in such cases, the date of the act or omission could
be defined as the ‘date of completion’ of the construction works. This suggestion was based on an
earlier recommendation of the Construction Industry Board[1318]
5.94
The Law Commission
observed that in major construction projects, a negligent act that causes
damage may take place a considerable time before the building work is
completed. It will often be even longer before a plaintiff has the
opportunity to uncover the damage. There may be hardship to the plaintiff
if the ultimate period runs from the date of the negligent act rather than the
date of accrual (i.e. the date on which the damage is incurred).[1319] In England and Wales, there is a
statutory duty to build dwellings properly.[1320]
The basic limitation period for actions in
respect of a breach of this duty accrues at the time when the dwelling was completed.
If that person carries out further work after that time to rectify the work
already done, actions in respect of the further work accrue at the time when
the further work was finished.[1321] The English Law Reform Committee in 1984
considered running an ultimate limitation period from the “completion date”,
for latent damages actions, but it found that aside from construction claims,
there would be “formidable difficulties” in adapting the concept of completion
to all the types of circumstances where latent damage might arise.[1322]
5.95
The Law Commission acknowledged that the adoption of the “completion
date” as the starting point for the running of the ultimate period would assist
the plaintiff because in most cases the date of completion would be later than
the date of the act or omission giving rise to the cause of action.
Further, it would avoid the need to investigate precisely when the relevant act
or omission took place. This would provide more certainty for the parties
to the action.[1323]
The Law Commission agreed with the Law Revision Committee, however, that
there would be problems of demarcation if a special limitation provision was
introduced for a particular industry. Moreover, this would detract from the
uniformity of the proposed core regime.[1324]
5.96
As seen above, the Law Commission ultimately recommended that the
ultimate limitation period begin to run on the date of accrual. It noted that the arguments are
“finely balanced” with respect to whether a separate starting point should be
adopted for the ultimate limitation period in construction-related
claims. In favour of the adoption of a separate starting point, it was
said that this area is one in which a claimant is likely to have concurrent
claims in contract and tort. If the ultimate period begins to run, as
proposed, from the date of accrual, there may be different starting points for
the concurrent actions. The Law Commission noted that this problem would be
rectified if a separate starting point was provided for all construction
related claims, and certainty would be increased.[1325]
5.97
Against the adoption of
a separate starting point, the Law Commission observed that consultees had
argued that it would be wrong to “ring-fence” a particular industry, that the
adoption of a separate starting date fr construction-related claims was not a
principled approach, and that it would risk creating anomalies. Moreover, the
legal problems faced by the construction industry may be said to be common to
the whole law. In addition, it may be difficult to ascertain the precise
“completion date”, and the starting of the ultimate limitation period from such
a date would involve a considerably extended liability for sub-contractors who
work on a project at its earlier stages. Considerable hardship would, it
was argued, by caused to the professionals involved, in terms of increased
insurance costs.[1326]
5.98
The Law Commission
ultimately stated that it was not convinced that a special rule should be
adopted for the running of the ultimate limitation period in
construction-related claims, given the added complexity that such a rule would
entail.[1327]
5.99
Under the Ontario Limitations
Act 2002, which came into force in 2004, an ultimate limitation period of
15 years was enacted, running from the day on which the act or omission on
which the claim is based took place.[1328]
5.100
The “day of occurrence”
– i.e. the date on which the relevant act or omission took place – is defined
for certain claims, as follows:-
(a) in the case of a continuous act or
omission, the day on which the act or omission ceases;
(b) in the case of a series of acts or
omissions in respect of the same obligation, the day on which the last act or
omission in the series occurs;
(c) in the case of a default in
performing a demand obligation, the day on which the default occurs.[1329]
5.101
Thus, it is clear that
the Ontario model incorporates certain – but by no means all – of the
recommendations made by the Alberta Institute, but most notably rejects the
adoption of the date of accrual as the starting point, instead opting for the
date of the act or omission.
5.102
The ultimate limitation
period that applies at present under the British Columbia Limitation Act runs
from the date on which the claim arose, which is the date of accrual of the
cause of action.[1330]
The British Columbia Law Institute (“BCLI”) noted in a report on the ultimate
limitation period published in 2002 that the running of the ultimate period
from the date of accrual creates a number of problems, and should be
reconsidered.[1331]
The BCLI summarised recent trends in the running of the ultimate limitation
period as follows:-
“The modern trend in limitation legislation is to move away from a
single accrual rule in defining the running of time.[…] The focal point for
reform has been to abrogate the accrual rule - at least in those cases where
damage is an essential element of the cause of action - and look to the act or
omission that constitutes a breach of duty giving rise to the cause of action.” [1332]
5.103
That proposal was based
on the following analysis:-
“The advantages
of this approach are threefold. It avoids the difficulties of having to
determine when a plaintiff has suffered damage for those causes of action where
damage is an essential element. Consequently, the maximum duration of the
defendant’s liability is more easily ascertainable than under the accrual
system and this creates greater certainty for the parties involved. The
defendant is protected from stale claims in cases where the date of accrual
occurs many years after the date of the act or omission that constitutes a
breach of duty. Moreover, this date provides a common starting point for the
ULP with regard to claims in both tort and contract.”[1333]
5.104
The BCLI acknowledged
that if the accrual rule is abandoned, time would run for cases where damage is
an essential element of the cause of action before the plaintiff gains a legal
right to commence the action. It remarked as follows:-
“The law has no
difficulty in postponing the running of a limitation period to some time after
the cause of action accrued, such as in the case of the limitation period applicable
to minor plaintiffs. Whereas, to start time running at an earlier point raises
this anomaly that a claim can be barred before damage is incurred.”[1334]
5.105
The BCLI was of the
view, however, that such an anomaly is likely to occur only in a few cases, and
that such likelihood must be weighed against the significant problems that
arise under the accrual rule. It considered that to run the ultimate
limitation period from the date of the act or omission that constitutes a
breach of duty would bring “far greater certainty, predictability and
simplicity to limitations law”. Moreover, it considered that in terms of
general limitations strategy, to start the running of the ultimate period from
that date would serve to counterbalance the uncertainty for defendants that may
arise where the basis limitation period commences either from the date of
accrual and/or the date of knowledge.[1335]
5.106
The BCLI also took the
opportunity to recommend that the common law rules with regard to demand
obligations be amended. It noted that the common law rules can be harsh
in their application as they can result in a plaintiff finding himself
statute-barred before repayment is demanded. It recommended that the basic
limitation period should start to run when a default in performance occurs
after a demand in performance is made. The BCLI considered that this
would create a greater degree of fairness by linking the running of the
limitation period to the existence of a wrong.[1336]
5.107
The BCLI acknowledged
that the adoption of such a rule would mean that a plaintiff would be able to
demand performance of a demand obligation many years after the demand
obligation was created. It therefore recommended the adoption of a
complementary ultimate limitation period, running for 30 years from the date of
the creation of the demand obligation, in order to overcome this problem.
The BCLI considered that this would ensure finality to the period of liability
and, at the same time, allow for loans that are intended to span many years.[1337]
5.108
The Commission
considers that the date of accrual test causes many problems both in terms of
its application and the difficulty that is involved in explaining and
understanding the principle. We consider that if the ultimate limitation
period were to run from the date of the act or omission giving rise to the
cause of action, this would operate in a complementary manner to the running of
the basic limitation period from the date of knowledge of the plaintiff. It
would be entirely futile to also run the ultimate limitation period from the
date of knowledge.
5.109
The Commission provisionally recommends that
the ultimate limitation period should run from the act or omission giving rise
to the cause of action.
5.110
Various approaches have
been taken to the application of ultimate limitation periods to personal
injuries actions. The following is a selected overview of the different
attitudes.
5.111
The Orr Committee,
writing in 1974, did not favour the introduction of a long-stop limitation
period for actions in respect of latent personal injuries. The Committee
felt that any ultimate limitation period would “either be too long to serve any
very useful purpose in the majority of cases or too short to cover […]
insidious diseases.”[1338]
5.112
The Law Reform
Commission (“LRC”) of Western Australia in 1997 observed that ultimate
limitation periods are not generally favoured in personal injuries cases.
This is so because of the following:-
“Even a 30-year
long stop period might be too short to safeguard the interests of plaintiffs,
especially in cases involving such diseases as asbestosis or mesothelioma,
because such diseases have a very long latency period. Although defendants would
be at risk of a claim for a very long period, the seriousness of the injury and
the inability of the plaintiff to discover it until many years after exposure
to the hazard require the law not to close off the possibility of bringing an
action after some arbitrary period.”[1339]
5.113
The LRC set out an
overview of the ultimate limitation provisions adopted in Australia, England
and Wales, Canada and New Zealand, and found that it was only in exceptional
cases that ultimate periods were applicable to personal injuries actions.[1340]
5.114
In its Consultation
Paper on limitations, published in 1998, the Law Commission for England and
Wales asserted that plaintiffs who have suffered personal injury merit special
concern simply on the basis that personal injury is “a more extreme type of
harm than property damage or economic loss.” The Law Commission
provisionally recommended that there should be a special, 30-year ultimate
period for personal injury actions. The Law Commission considered that
one strategy for dealing with this issue would be to give the courts discretion
to override the long-stop, but rejected this option on the grounds of the
uncertainty and consequent wasted costs that it would involve.[1341]
5.115
During the consultation phase, the provisional recommendation of a
30-year ultimate period for personal injuries actions was rejected by roughly
55% of consultees.[1342]
Consultees were concerned that the application of an ultimate period to
personal injuries actions would be unjust to claimants suffering from latent
disease if the disease in question does not manifest itself until after the
ultimate period has expired. Consultees considered that claims for
asbestos-related disease present particular problems. The latency period
for mesothelioma can be anything up to 60 years after exposure; indeed, the Law
Commission received expert advice that the median latency period is over 30
years. It considered, therefore, that the adoption of a 3-year ultimate
period would prevent most claimants suffering from mesothelioma from recovering
damages. The Law Commission was particularly influenced by evidence that
“the incidence
of asbestos-related disease is increasing, and is expected to continue to do so
for at least the next twenty-five years.”[1343]
5.116
The Law Commission also
noted that consultees had expressed concern that the application of an ultimate
period to personal injuries actions could unjustifiably bar actions in respect
of sexual abuse. It noted that there was, at that time, a growing number of
actions being taken by persons who claimed to have suffered abuse in the 1970’s
and 1980’s, who had not reported the abuse because to do so would revive
traumatic memories. The Law Commission expressed the following view:-
“Victims of such abuse frequently need time to recover sufficiently from
the trauma consequent upon the abuse to be able to contemplate bringing a claim
against their abusers. It could also be argued that the public interest in
protecting the defendant from stale claims, and in ensuring that there is an
end to litigation, does not apply where the defendant has been guilty of sexual
abuse (which could be considered to make the case for exempting such claims
from the long-stop limitation period even stronger than is the case for other
personal injury claims such as for asbestosis).”[1344]
5.117
The Law Commission
therefore reached the conclusion that 30 years is too short a period for the
ultimate limitation of personal injuries actions. It was of the view that
to apply a longer ultimate period would not guarantee that all actions would be
covered, and in any event would make the ultimate period “too long to serve any
useful purpose”.[1345]
5.118
The Law Commission
considered – and rejected – the option of dis-applying the ultimate period for
cases involving personal injury where the claimant was not diagnosed as
suffering the relevant injury until a date less than three years before
proceedings were issued. It acknowledged that this would protect personal
injury claimants where the injury was not discoverable prior to the expiry of
the ultimate period, leaving the claim to be governed only by the basic
limitation period, running from discoverability. The Law Commission noted
that this option attracted support from consultees who had expressed objections
based on the long latency of asbestos-related claims.[1346]
5.119
The Law Commission
concluded, however, that to dis-apply the ultimate period for such claims would
be to increase the complexity of the core regime without necessarily providing
any compensating advantages, particularly in light of the Law Commission’s
revised proposals in relation to a judicial discretion to dis-apply the
limitation period for personal injuries claims.[1347]
5.120
The Law Commission
acknowledged that the absence of an ultimate limitation period had caused
“significant difficulties”, especially where the plaintiff was of unsound mind
and, consequently, under an indefinite disability. In the absence of an
ultimate period, such plaintiffs could bring an action many years – if not
decades – after the events giving rise to the cause of action. It
considered, however, that “these problems only affect a small number of personal
injury claims.”[1348]
5.121
A somewhat different
approach – though similar in its effect – has recently been adopted by the
Scottish Law Commission. In its recent Report on Personal Injuries
Actions, the Commission recommended that all personal injuries actions
should be subject to a five-year limitation period. This limitation
period would run either from
(i)
The date on which the
injuries were sustained or, where the injury is attributable to a continuing
act or omission, the date on which that act or omission ceased; or
(ii) The date of knowledge as
defined.[1349]
5.122
This was subject to the
recommendation that judicial discretion to allow a time-barred action to go
ahead should be retained, and should not be subject to a time-limit. [1350] The Scottish Law
Commission made this recommendation on foot of a consultation process that
wielded very little support for temporally limiting the exercise of judicial
discretion. It did acknowledge that the following difficulty with this
recommendation:-
“A potential defendant can never be sure that no action can be raised in
respect of a past incident after the expiry of a certain period of time.
Even in the case of industrial diseases such as asbestosis and some sexual
abuse cases, there will come a point in time where the injured party will have,
or ought reasonable to have, all the necessary knowledge. Therefore, even
where judicial discretion exists, there should come a time after which no
proceedings can be instituted.”[1351]
5.123
Nevertheless, the
Scottish Law Commission cited concerns raised by consultees that it was
questionable whether temporally limiting the exercise of judicial discretion
would provide increased certainty for the defendant, and that such limitation
would merely me a further arbitrary control which could lead to the very
injustice or unfairness that the provision of discretion sought to
overcome. Moreover, it was argued that setting a temporal limit for the
exercise of the discretion might in practice amount to a rebuttable presumption
that an action brought within that time should be allowed to proceed. In
addition, the courts are mandated to have regard to the reasons for the delay
in instituting proceedings; this, in itself, imposes a limit in a practical
sense.[1352]
5.124
The Commission notes
that the following three options are available, and invites submissions as to
the most appropriate option:-
i)
Application of the
proposed general 12-year ultimate limitation period;
ii)
Application of a
special 30-year ultimate limitation period; or
iii)
No ultimate limitation
period.
5.125
The Commission
considers that special considerations arise in respect of the application of an
ultimate limitation period to personal injuries actions. History
demonstrates that many forms of personal injuries lay dormant for years if not
decades. The imposition of a strict ultimate limitation period to such
actions may have harsh results for persons who do not become aware of their
injuries until after the expiry of the limitation period. That
notwithstanding, there is an underlying danger in allowing the prosecution of
civil actions long years after the act or omission giving rise to the cause of
action, especially in terms of a risk of unfairness to the defendant. It
is recalled that the Courts retain an inherent jurisdiction to strike out
claims for want of prosecution even where a statutory limitation period has not
yet expired, and it is considered that this jurisdiction plays a role in
ensuring that trials do not proceed simply because they are not statute-barred,
where there is a risk of unfairness to the defendant.
5.126
The Commission provisionally recommends that
the ultimate limitation period should apply to personal injuries actions.
6
6.01
In this Chapter, the
Commission assesses the merits and disadvantages that might arise if a
discretion allowing the courts to extend or dis-apply limitation periods was
introduced as a general feature of the Irish law of limitation.
6.02
In Part B, the
Commission examines the evolving approach to such a discretion in a number of
different jurisdictions, noting that there has been considerable movement in
the approach taken to this issue. In Part C, the Commission examines some existing
models of the judicial discretion in limitations legislation. In Part D, the
Commission analyses the merits and drawbacks of introducing such a discretion.
In Part E, the Commission sets out its conclusions and recommendation on this
issue.
6.03
A discretion to extend
or dis-apply limitation periods has been introduced in various other
jurisdictions. Some have enacted legislation allowing judges to extend
the running of the limitation period up to a particular length of time while
others have afforded judges the discretion to dis-apply a limitation period,
the latter being a much wider jurisdiction.
6.04
The exercise of
judicial discretion to extend or dis-apply has the effect of depriving the
defendant of what would otherwise be a complete defence to the action, i.e.
that the summons was issued too late.[1353]
Conversely, if the court refuses to exercise its discretion, the plaintiff will
be statute-barred and his action against the defendant will not be allowed to
proceed. Given these potentially grave consequences, careful
consideration must be given to the introduction of judicial discretion as a
general feature of limitations law in Ireland.
6.05
Judicial discretion has
been considered by various agencies over a number of decades. In
particular, the Law Revision Committee of Parliament and the Law Commission of
England and Wales have undergone a considerable evolution in their approach to
judicial discretion. The development of their assessment of the merits
and pitfalls of the introduction of judicial discretion, set out hereafter, are
both interesting and instructive.
6.06
The Wright Committee in
1936 considered the introduction of judicial discretion to extend the
limitation period in appropriate cases.[1354]
It acknowledged the “obvious advantages” of giving a discretion of this kind to
the courts, namely that such discretion “would obviate the cases of hardship
which are bound to occur under any rigid system of limitation, however well
devised”, and that it “would enable shorter general periods to be
prescribed, without the danger of increasing those cases of hardship.”[1355] It was noted that the “chief
merit” in the introduction of judicial discretion would be flexibility.[1356]
6.07
The Wright Committee
considered, however, that there were “formidable objections” to the
introduction of judicial discretion, namely that the exercise thereof would
present difficulties for the courts and that it was not easy to foresee how it
would operate.[1357]
Moreover, the flexibility that would be introduced would tend to disappear if
principles were to emerge as to how the discretion should be exercised.
Conversely, if no such principles came to be adopted and it remained more or
less impossible to predict how the court would exercise its discretion, the
benefit of certainty that is conferred by statutes of limitation would be
prejudiced.[1358]
6.08
The Committee examined
section 8 of the Maritime Conventions Act 1911, which allows for
judicial discretion to extend the two-year limitation period for actions to
enforce a maritime lien, and section 14(1) of the Workmen’s Compensation Act
1925, which also allowed for extension in the case of mistake, absence from
the UK, or “other reasonable cause”. The Committee considered that
special considerations applied in each of these cases which justified the
provisions in question, but which were not sufficiently applicable in general
to outweigh the disadvantage of uncertainty.[1359]
It did not, therefore, recommend the introduction of judicial discretion to
extend the limitation period.[1360]
6.09
The Wright Committee’s
recommendations were substantially enacted under the English Limitation Act
1939 and, accordingly, no statutory discretion was accorded to the Courts.
6.10
In 1949, the Tucker
Committee considered that provision should be made for exceptional personal
injuries cases by allowing an applicant to apply for leave to bring an action
more than two years, but not later than six years, after the accrual of the
cause of action. The judge should have a discretion to grant leave
to bring the action “if satisfied that it is reasonable in all the
circumstances so to do.”[1361]
A long-stop period of six years running from accrual would apply, after which
the court’s discretion would no longer be exercisable.[1362]
6.11
The Tucker Committee
noted that the evidence showed that “the great majority” of claims are notified
at an early date after the occurrence of the incident giving rise to the claim,
and that actions are in the main commenced reasonably promptly. It
indicated that where there is great delay, the probability therefore is that
either there is good reason for the delay, or that the claim is not a bona fide
one. It concluded, therefore, that whether the reason is one or the other
may be safely left to the decision of the court.[1363]
6.12
These recommendations
were not implemented. Instead, the Law Reform (Limitation of Actions)
Act 1954 implemented the recommendation of the Monckton Committee that the
limitation period should be fixed at three years from accrual.[1364]
6.13
The Edmund Davies
Committee’s 1962 Report addressed the problem of latent personal injuries.[1365] It recommended the introduction
of a three-year limitation period in cases of latent personal injury, running
from the date of knowledge and supplemented by a twelve month extension.[1366] The Committee rejected the idea
of introducing judicial discretion to extend the new, comparatively shorter
limitation period. It appreciated the advantage of the apparent
simplicity of this approach but considered that it would lead to uncertainty
and divergences of approach on the part of the judges.[1367]
6.14
The Committee’s
recommendations were substantially implemented by the Limitation Act 1963 and,
accordingly, the courts were not given discretion to extend the new limitation
period.
6.15
In 1975, the Orr
Committee considered the introduction of a comparatively short period of
limitation (i.e. two or three years) for personal injuries actions,
supplemented by a wide judicial discretion to extend the limitation period in
meritorious cases.[1368]
The Committee noted that the Wright and the Edmund Davies Committees had
rejected such an approach on the basis of the potential uncertainty that it
would involve, and it agreed that “[i]t is self-evident that any provision
which gives the court a discretion must pro tanto erode the certainty of
the law.”[1369]
It considered, however, that in the field of personal injuries, “a measure of
discretion is inevitable”.[1370]
6.16
The Orr Committee
decided against making the plaintiff entirely dependent on the court’s
discretion on the following basis:
“[T]o make
extension of the three-year period purely discretionary would not only entail
the disadvantages referred to by the Edmund Davies Committee; it would also
curtail the advantages conferred on an injured person by the 1963 Act, because
at present, provided he can show that he has started proceedings within three
years of his date of knowledge, he is entitled as of right to defeat a defence
of limitation. This we think is a valuable right and, moreover, its
existence means that in most cases both plaintiff and defendant know where they
stand on the issue of limitation and are therefore more likely to reach a
reasonable settlement without ever bringing the action to trial.”[1371]
6.17
The Orr Committee
therefore recommended a combination of the date of knowledge test with a “residual
discretionary power vested in the court to extend that period in cases where
the strict application of the “date of knowledge” principle would cause
injustice.”[1372]
Like its predecessors, the Committee recommended the discontinuation of the
need to obtain leave.[1373]
6.18
The recommendations of
the Orr Committee were substantially implemented by the Limitation Act 1975,
which introduced section 2D into the Limitation Act 1939. That
section established a discretionary limitation period, running following the
expiry of the primary limitation period. This discretion is discussed
further at page 269 below.
6.19
In 1977, when assessing
the problem of property damage actions (other than personal injuries) and
actions for economic loss, the Orr Committee considered the introduction of
discretion to override an otherwise valid limitation defence.[1374] It considered that the “obvious”
advantage of this discretion was that “it enables hard cases to be dealt
with on their particular facts and without putting the court into the difficult
position of having either to “bend” the statutory provision or to fail to do
justice.”[1375]
It was observed, however, that discretion involves “a greater measure of
uncertainty than does the date of knowledge principle, even if “guidelines” are
specified in the statute”.[1376]
It was also pointed out that in latent damages cases, it would be more
difficult to formulate guidelines to the exercise of discretion “across the
board” than in personal injuries claims alone.[1377]
6.20
The Committee was
unable to reach a unanimous decision as to the appropriate starting point for
latent damage actions. The majority favoured the view that the
best course was to preserve the accrual test. Certainty was the prime
consideration. It was noted that hard cases would be few and that justice
to defendants who have not acted in any unconscionable fashion demands that the
defendants be protected once the limitation period has run.[1378]
The minority agreed that the accrual test should be retained but it felt
that a residual discretion to extend the limitation period should be introduced
to mitigate the harshness of the accrual rule for parties who could not have
learned about their cause of action during the standard limitation period. The
proposed discretion would be limited to latent damage cases (e.g. professional
advice and building and engineering contracts), and the exercise of the
discretion would be conditional upon consideration of the nature of the claim
and the circumstances pertaining thereto.[1379]
6.21
The Latent Damage
Act 1986 inserted sections 14A and 14B into the Limitation Act
1980. These sections apply to all actions for damage for negligence
other than personal injuries actions.[1380]
Section 14A provides that the time for bringing the action expires at the later
of six years from accrual, or three years from the “starting date”.[1381]
Section 14B sets a long-stop of 15 years.[1382] The
courts do not have discretion to extend any of these limitation periods.
6.22
In its most recent
analysis of the limitation of actions, the Law Commission for England
and Wales considered the introduction of a general judicial discretion to
dis-apply limitation periods which would apply to a wide range of causes of
action.[1383]
6.23
In its 1998
Consultation Paper, the Law Commission noted that the introduction of statutory
judicial discretion to dis-apply the limitation period had engendered a huge
number of cases. Further, it meant that in the absence of a long-stop or
ultimate limitation period, defendants must retain records for many years for
fear that they may be exposed to claims many years after the occurrence of an
act or omission that gives rise to a cause of action.[1384]
It was noted that “to rely on judicial discretion needlessly risks
inconsistency and uncertainty on a fundamental policy issues which can be, and
should be, decided once and for all.”[1385]
On that basis and for the following reasons, it provisionally recommended the
removal of the discretion:
“We believe the disadvantages of a judicial discretion […] outweigh the
advantages. Experience with the discretion under section 33 if the
Limitation Act 1980 demonstrates the difficulty of restricting the
discretion. Moreover, the exercise of the discretion by the court of
first instance means a huge drain on court resources (as well as the costs for
defendants in resisting such applications). […] It is very difficult for
applications to be ruled out as raising no arguable case.”[1386]
6.24
In its Report,
published in 2001, the Law Commission noted that the question of whether or not
there should be a general discretion to dis-apply the limitation period was “one
of the most controversial areas of our proposals.”[1387]
It observed that of the consultees who responded to that issue,
there was an equal divide between those in favour and those opposed. Of
those in favour, it was noted that the majority were particularly concerned
with the possible consequences for personal injuries claims;[1388] but only 15% of consultees were in
favour of the introduction of a general discretion.[1389]
6.25
The Law Commission
reiterated that the chief merit of judicial discretion is that a judge can take
account of the individual circumstances of a case and is not confined to the
applicant of a strict rule. The judge can therefore prevent injustice to
an individual claimant who has failed to commence proceedings within the
standard limitation period for reasons that seem excusable to the judge.[1390]
6.26
The Law Commission
asserted however that the benefits of such flexibility must be weighed against
the risk of injustice to the defendant and the consequent uncertainty that
would be involved for all who might be involved in a case or upon whom the
final decision might impact. It was noted that the English Court of Appeal has
refused to set down guidelines for the exercise of judicial discretion[1391] and that it is therefore difficult, at
times, to give accurate legal advice as to how a case might proceed.
6.27
Ultimately, the Law
Commission concluded that the level of uncertainty involved for defendants
outweighed the benefits of judicial discretion:[1392]
“Justice for the individual claimant may come at the cost of increased
uncertainty for claimants in general, their advisers, and other parties who
need to be able to rely on the certainty which could be provided by a
limitation period.”
6.28
The Law Commission
hesitantly recommended the retention of the discretion to dis-apply the
limitation period for personal injuries actions. It noted that the
consequences of being unable to commence proceedings in respect of personal
injuries are more serious than those in respect of economic loss or property
damage.[1393]
It was also influenced by the need for a discretion in sexual abuse claims,
which it had recommended would be subject to the ordinary personal injuries
limitation period.[1394]
6.29
The Law Commission
recommended only minor changes to the guidelines contained in section 33 of the
Limitation Act 1980, except to recommend that the court should have
regard to “any hardship” which would be caused to the plaintiff if the
limitation period applied. [1395] As noted at page 167 above,
preparations are ongoing for the introduction of a Draft Civil Law Reform
Bill which will, among other things, seek to implement the Law Commissions’
recommendations as to the reform of the law of limitation.
6.30
As was noted above in
Chapter 2, section 38 of the Defamation Act 2009 amends section 11 of
the Statute of Limitations 1957 so as to introduce a new, one-year basic
limitation period in Ireland for the tort of defamation. The one-year
period is to be extendable at the discretion of the courts for up to one
further year. Thus, the maximum time available to a plaintiff within
which to commence proceedings will be two years, running from the date of
publication. This is only the second instance of judicial extension of
the basic limitation period in Ireland (the first being section 46(3) of the Civil
Liability Act 1961, discussed in Chapter 2 above).
6.31
In order for a court to
exercise its discretion to extend the time available to a plaintiff under the
new section 11(3A)(a), the court must be satisfied that the interests of
justice require the giving of the direction.[1396]
This equates broadly to the question of whether or not it is ‘equitable’ to
allow a claim to proceed under sections 32A and section 33 of the English Limitation
Act 1980. In addition, the court must be satisfied that the prejudice
that the plaintiff would suffer if the extension was refused would
significantly outweigh the prejudice that the defendant would suffer if the
extension was granted.[1397]
This second factor is similar to the ‘balance of prejudice’ test, exercised
under the English Limitation Act 1980 which is discussed at page 271
below.
6.32
In deciding whether to
exercise its discretion, the court is also mandated to have regard to the
following:
·
The reason for the failure to bring the action within
the initial one-year limitation period; and
·
The extent to which any evidence relevant to the
matter is no longer capable of being adduced, by virtue of the delay.[1398]
6.33
This may be compared to
section 33 of the English Limitation Act 1980, which requires
consideration of the circumstances of the case.[1399]
6.34
The question of the
balance of prejudice matter under the new section 11(3A) of the Statute of
Limitations 1957 (i.e. whether the prejudice that the plaintiff would
suffer if the limitation period were not so extended would “significantly
outweigh” the prejudice that the defendant would suffer) follows the recommendation
of the Mohan Report.
6.35
At present, the courts
in England and Wales have discretion to extend or dis-apply the limitation
period in personal injuries actions and defamation actions, both of which are
discussed below.
6.36
In addition, the courts
have discretion in a variety of specialised contexts including claims taken
under the Matrimonial Causes Act 1973,[1400]
the Carriage of Passengers by Road Act 1974,[1401]
the Solicitors Act 1974,[1402]
the Inheritance (Provision for Family and Dependants) Act 1975,[1403] the Discrimination Acts,[1404] the Company Directors
Disqualification Act 1986,[1405]
the Merchant Shipping Act 1995,[1406]
and the Employment Rights Act 1996.[1407]
6.37
The limitation periods
applied to personal injuries cases under the English Limitation Act 1980 are,
at first glance, much more stringent than the six-year general limitation
period applicable to tort actions. The rigour of the shorter limitation periods
is, however, mitigated by the courts’ discretion to dis-apply that short
period.
6.38
Section 33 of the Limitation
Act 1980 is a re-enactment of section 2D of the Limitation Act 1939.[1408] The courts may, under section
33, dis-apply the three-year limitation period applicable under sections 11,
11A and 12 of that Act, and allow a case to proceed even where it is initiated
outside of the three-year limitation period.[1409]
This has been described as “one of the most important and most heavily used
provisions in the law of limitations.”[1410]
6.39
As to the courts’
jurisdiction to issue a direction that the primary
limitation period will be dis-applied, in the UK House of Lords decision in
Thompson v Brown[1411]
Lord Diplock commented:
“A direction under [section 33] must therefore
always be highly prejudicial to the defendant, for even if he also has a good
defence on the merits he is put to the expenditure of time and energy and money
in establishing it, while if, as in the instant case, he has no defence as to
liability he has everything to lose if a direction is given under the section.
On the other hand if, as in the instant case, the time elapsed after the
expiration of the primary limitation is very short, what the defendant loses in
consequence of a direction might be regarded as being in the nature of a
windfall.”
6.40
The courts may exercise
their discretion to dis-apply where it appears equitable to allow the action to
proceed.[1412]
The court should have regard to the degree to which the application of
the limitation period would prejudice the plaintiff or any person whom he
represents, and the degree to which the dis-application of the primary
limitation period would prejudice the defendant or any person whom he
represents.[1413]
Thus, the court has to balance the likely prejudice occasioned to the
respective parties.
6.41
The discretion of the
court is fettered only to the extent that a non-exhaustive list of
circumstances to which the court should have regard is provided.[1414] Thus, addition to assessing the
balance of prejudice, the courts must have regard to all the circumstances of
the case. The following factors must, under the statute, be taken into
account:-
(a)
The length of and reasons for the delay on the part of the
plaintiff;
(b) The extent to which the evidence adduced or likely to
be adduced by the plaintiff or the defendant is or is less likely to be less
cogent than if the action was brought within the three-year limitation period;
(c) The conduct of the defendant after the cause of action
arose, include the extent to which he responded to requests reasonably made by
the plaintiff for information or inspection for the purpose of
ascertaining facts which were or might be relevant to the plaintiff’s cause of
action against the defendant;
(d) The duration of any disability of the plaintiff arising
after the date of accrual;
(e) The extent to which the plaintiff acted promptly
and reasonably once he knew that the defendant’s act or omission might be
capable of giving rise to an action for damages;
(f) The steps, if any, taken by the plaintiff to
obtain medical, legal or other expert advice and the nature of any such advice
he may have received.[1415]
6.42
The list is not
exhaustive, and has been labelled “a curious hotchpotch”.[1416]
Factors (a) and (b) relate to the degree of prejudice that would be suffered by
the plaintiff and the defendant, if there matter was allowed to proceed. The delay referred to here is delay after the
expiration of the limitation period.[1417] Factors (c) to (f) are those which
affect the equity of the situation. Factor (c) relates to the defendant’s
conduct, and (e) and (f) relate to the plaintiff’s conduct.
6.43
The interpretation of
these factors has generated a considerable amount of jurisprudence. The matter
is not determined simply by assessing comparative scales of hardship; rather,
the overall question is one of equity.
6.44
The exercise of the
courts’ discretion has been considered “an exceptional indulgence to a
claimant”.[1418]
It is little comfort to a potential defendant that the burden of showing that
it would be equitable to dis-apply the limitation period lies with the
claimant, or that this is considered “a heavy burden”.[1419]
Criticism has also been levied at the fact that the courts’ discretion to
dis-apply operates as an adjunct to extension provisions based on
discoverability.[1420]
This is because the general rule has already catered for delay in
starting proceedings that is due to excusable ignorance of material facts by
the plaintiff.[1421]
6.45
The UK Defamation
Act 1986[1422]
amended the Limitation Act 1980 with respect to the limitation of
defamation actions, such that a one-year limitation period now applies to for
actions for libel and slander.[1423]
This limitation period is, therefore, even more stringent than the three-year
limitation period set for personal injuries. The rigour of the one-year
limitation period is, however, mitigated by the courts’ discretion to dis-apply
the limitation period.[1424]
6.46
The court must have
regard to the same factors addressed in relation to the extension of personal
injuries actions.[1425]
All the circumstances of the case must be taken into account, including the
following:
(a) The length of and reasons for the delay on the part of the plaintiff;[1426]
(b) Where the reason (or one of the reasons) for the delay was that all or
any of the facts relevant to the cause of action did not become known to the
plaintiff until after the end of the one-year limitation period-
i. The date on which any
such facts became known to him; and
ii. The extent to which
he acted promptly and reasonably once he knew whether or not the facts in
question might be capable of giving rise to an action;[1427] and
(c) The extent to which, having regard to the delay, relevant evidence is
likely -
i. To be unavailable, or
ii. To be less cogent
than if the action had been brought within the one-year limitation.[1428]
6.47
This list of factors
that must be considered is, for the most part, a replication of the factors to
which consideration must be given when the courts are exercising their
discretion to dis-apply the limitation period in respect of personal injuries
actions. The circumstances omitted in the list applicable to the
dis-application of the defamation limitation periods were, it is assumed,
thought irrelevant or insufficiently important to defamation cases as opposed
to personal injuries actions.[1429]
Although this discretion is “structured” by the statutory guidelines, it
is very wide and has been described as “unfettered”.[1430]
6.48
The English Court of
Appeal has stated that limitation issues should be determined, where possible,
by a preliminary hearing by reference to the pleadings and written witness
statements and the extent and content of discovery.[1431]
If this is not possible, the court should be careful not to determine the
substantive issues (i.e. liability, causation and quantum) before determining
the issue of limitation. In particular, the court should assess the
effect of delay on the cogency of the evidence before determining the
substantive issues.[1432]
6.49
Since 1980 the
Scottish courts have had a discretionary power to override time limits in
personal injury cases.[1433]
In order for the courts have jurisdiction to do so, it must seem equitable for
the court to extend the limitation period.[1434]
The courts’ discretion is otherwise unfettered and there is no list of
statutory guidelines to which the court must have regard.[1435]
Where the court does exercise its discretion, the action
may not be tried by jury.[1436]
6.50
In a
Consultative Memorandum published before this discretion was introduced, the
Scottish Law Commission was not in favour of the introduction of judicial
discretion, considering
that such discretion would introduce uncertainty and divergence of approach on
the part of judges.[1437]
In a subsequent Report, published after the introduction of the
discretion, the Commission acknowledged that consultees were not in favour of
judicial discretion but considered it inappropriate to recommend the repeal of
the relevant section before experience had been gained of the working of the
section.[1438]
The Commission recommended against the introduction of statutory
guidelines, partly on the basis of experience in England and Wales, partly
because they were considered unnecessary.
6.51
As is the case in
England and Wales, the courts’ discretion to override the limitation period in
personal injuries actions has since been subject to considerable judicial
interpretation in Scotland.[1439]
The crucial consideration is the equity of the situation.[1440]
In its Report on Personal Injury Actions published in December 2007, the
Scottish Law Commission noted that although the outcome of each case turns of
its facts, “judges have tended to develop similar approaches” to the
factors to which they have regard in determining whether or not to exercise the
discretion.[1441]
For instance, judges commonly undertake the balancing of prejudices likely to
be suffered by the respective parties, and have regard to the conduct of the
parties.[1442]
Thus, the concerns that were expressed when the discretion was introduced do
not appear to have materialised.[1443]
6.52
During the consultation
phase of its most recent review, the Scottish Law Commission found that “nearly
all” of its consultees were in favour of the retention of this
discretionary power.[1444]
The Commission noted that the need for judicial discretion is clearly greater
where there is no discoverability provision and the limitation period runs from
the date of accrual of the cause of action. It observed, however, that
the argument has been made that the converse is also true - a discretionary
power is, or ought to be, unnecessary if the knowledge or discoverability test
is sufficiently framed.[1445]
That notwithstanding, the Scottish Law Commission was still inclined to retain
judicial discretion in addition to formulating a subjective discoverability
test.[1446]
6.53
The Scottish Law
Commission noted that many personal injury actions are commenced close to the
expiry of the limitation period, owing to a desire to settle. Additionally, there is scope for things to go wrong
and for mistakes to occur in the process of commencing proceedings. The
Commission considered that it was desirable to retain judicial discretion to
deal with those “technical or accidental cases of missing the time limit”.[1447] Furthermore, judicial discretion
could be exercised to mitigate harshness in child sexual abuse cases.[1448] Thus, the Scottish Law
Commission’s considerations reflected the concerns expressed by the Law
Commission for England and Wales in its most recent review with respect to the
abolition of discretion.
6.54
The Scottish Law
Commission did not consider that the exercise of judicial discretion should be
subject to a time limit.[1449]
It recommended the introduction of a non-exhaustive list of statutory
guidelines which the court may take into account in deciding whether to
exercise its discretion.[1450]
It recommended no change to the current situation as to the onus of
proof, which - as in England and Wales - lies with the plaintiff to persuade
the court that it is equitable to allow the otherwise time-barred action to
proceed.[1451]
6.55
Judicial discretion
provisions that were introduced in the various Australian jurisdictions in
recent decades have recently been re-formulated as a result of the Defamation
Acts 2005 and 2006.[1452]
|
Jurisdiction |
Judicial Discretion to Extend |
|
A.C.T. |
Sections 36-40, Limitation Act 1985 |
|
New South Wales |
Sections 56A-62F , Limitation Act 1969 |
|
Northern Territory |
Sections 44 and 44A, Limitation Act 1981 |
|
Queensland |
Section 31 and 32A, Limitation Act 1974 |
|
Southern Australia |
Section 48, Limitation of Actions Act 1936 |
|
Tasmania |
Sections 5 and 5A, Limitation Act 1974 |
|
Victoria |
Parts II and IIA, Limitation of Actions Act 1958 |
|
Western Australia |
Sections 38-44, Limitation Act 2005 |
Sections 36 to
40 of the ACT Limitation Act 1985 (Australian
Capital Territory)[1453] provide for the extension of the relevant limitation
periods for personal injuries actions, actions by and against the estate of a
deceased person, and actions in respect of latent property damage.
6.56
The extension of the
limitation period in personal injuries actions is only available if the action
accrued on or before 9 September 2003.[1454]
6.57
Prior to 2003, the
six-year limitation period applicable to personal injuries actions could be
extended under section 36(2) of the 1985 Act. The court could hear such persons
likely to be affected by an extension as it considered appropriate, and its
discretion could be exercised where it decided that it was “just and
reasonable” to extend the limitation period. The extension could last for
such period as the court determined.[1455] The court was mandated to have regard
to all the circumstances of the case and a non-exhaustive list of factors that
could be considered by the court was provided.[1456] The court
could have regard to factors such as the plaintiff’s ability to sue his or her
solicitor for negligence, and the prospects of the claim succeeding if it were
allowed to proceed to trial.[1457] An extension
could be granted even though the primary limitation period had expired at the
time of the application.[1458]
6.58
This was a
wide discretion, not limited to exceptional cases. It has now been replaced by a stricter
discoverability rule. The general extension
provision now applies only to actions under section 16 (compensation for
relatives), 16A (workers compensation), and 38 (actions by the estate of a
deceased person). As a result of amendments made in 2003,[1459]
a three-year limitation period now applies to personal injuries actions.[1460]
No extension is available in respect of personal injuries actions accruing
after September 9 2003,[1461]
children’s claims relating to health services,[1462] or wrongful death claims.[1463]
6.59
Sections 37 and 38 of
the ACT Limitation Act 1985 provide for the extension of the limitation
period applicable to actions in respect of the estate of a deceased person.
Section 38 regulates the situation where the executor or administrator of a
deceased person’s estate institutes proceedings in respect of personal injuries
that accrued to the deceased person before his or her death. The
court may extend the limitation period for such actions where it considers it
just and reasonable to do so.[1464] An extension may be granted even
if the limitation period for the action has expired.[1465] The extension may last for such
period as the court considers appropriate but may not exceed six years from the
date of death.[1466]
As with regular personal injuries actions, the court is mandated to have regard
to all the circumstances of the case and a list of sample circumstances that
may be considered is provided.[1467]
6.60
Section 39 provides for
the extension of the limitation period for actions for compensation for the
relatives of a deceased person.[1468]
6.61
Section 40 of the ACT Limitation
Act 1985 provides for the extension of the limitation period applicable to
actions in respect of latent damage to property, or economic loss in relation
to such damage to property.[1469] The limitation period may be
extended for such period as the court considers appropriate, but the Act
provides a long-stop period of 15 years from the date of the occurrence of the
act or omission upon which the cause of action is based.[1470] The extension may be granted
even if the limitation period for the action has expired.[1471] The court must consider it “just
and reasonable” to extend the limitation period.[1472] As with the above categories of
action, the court is mandated to consider all the circumstances of the case,
including a non-exhaustive list of factors specified in the Act. [1473]
6.62
Part 3 of the New South
Wales Limitation Act 1969 (New South Wales)[1474] deals with
the postponement of the limitation periods set down in Part 2 of the Act.
6.63
Divisions 3
and 4 of Part 3 deal with the extension of the limitation period in personal
injuries actions. Various
different approaches have been taken to the extension of the limitation period
for personal injuries in New South Wales. Prior to 1990, a discoverability test
applied to personal injuries actions.[1475]
In 1990, following a Report of the NSW Law Reform Committee,[1476] a new limitation regime was
introduced for personal injuries actions.[1477]
A three-year limitation period was introduced,
running from the date of accrual[1478] and subject to a (maximum) five-year extension by judicial
discretion.[1479] The court could order the extension of this
limitation period where if decided that it was “just and reasonable” to do so,
having heard such of the persons likely to be affected as it saw fit.[1480] As in
the ACT legislation, the court was mandated to have regard to “all the
circumstances of the case” and, without prejudice to this general obligation,
it was to have regard to a list of eight matters that could be relevant to the
circumstances of the case.[1481] Crucially, the primary focus was on a fair trial.[1482] A
separate discoverability test applied.[1483]
6.64
A further regime was
introduced for personal injuries actions in 2002.[1484] A three-year limitation period applies, running from
discoverability, and subject to a 12-year long-stop.[1485] The primary
limitation period cannot be extended but an extension of the long-stop is
available where the court decides that it is “just and reasonable” to do so,
having heard such persons who are likely to be affected by the application as
the court sees fit.[1486] The long-stop can be extended by such period as the
court determines, but may not exceed three years after the date of
discoverability.[1487] As before, the court must have regard to “all the
circumstances of the case and, without prejudice to this general obligation, it
must have regard to a list of eight factors that could be relevant to the
circumstances of the case.[1488]
6.65
As a result of recent
amendments,[1489]
a one-year limitation period applies to defamation actions, running from the
date of publication.[1490]
This limitation period may be extended for a period of up to three years from
the same date.[1491]
Thus, the maximum extension is two years from the date of expiry of the primary
limitation period. The extension can only be granted where the court is
satisfied that it was reasonable in the circumstances for the plaintiff to have
commenced an action in relation to the matter complained of within one year
from the date of publication.[1492]
An extension may be granted even though the primary limitation period has
expired at the time of the application.[1493]
6.66
Section 44 of the
Northern Territory Limitation Act 1981 (Northern Territory,[1494]
as amended,[1495]
makes provision for the judicial extension of the limitation periods set by the
Act. The court may extend the limitation period “to such an extent, and
upon such terms, if any, as it sees fit.”[1496]
The provisions of this Act are broadly similar to the provisions in force in
South Australia.
6.67
Before extending the
time available for the instituting of proceedings in civil claims under the
Northern Territory Limitation Act 1981, the court must be satisfied that
in all the circumstances of the case, it is just to grant the extension of
time.[1497]
It must also be satisfied of one of the following:
(i)
That facts material
to the plaintiffs case were not ascertained by him until some time after 12
months before the expiration of the limitation period or occurring after the
expiration of that period, and that the action was instituted within 12 months
after the ascertainment of those facts by the plaintiff; or
(ii)
That the
plaintiff’s failure to institute the action within the limitation period
resulted from representations or conduct of the defendant, or a person whom the
plaintiff reasonably believed to be acting on behalf of the defendant, and was
reasonable in view of those representations or that conduct and other relevant
circumstances.[1498]
6.68
Part (a) above is
essentially a discoverability test. Part (b) relates to the conduct of the
defendant or his agents.
6.69
The court’s discretion
does not apply to criminal proceedings, or defamation actions.[1499] It does extend to personal
injuries actions and fatal injuries actions, notwithstanding that the
limitation period for the action had expired before the commencement of the Limitation
Act 1981, or before an application for extension was made.[1500]
6.70
Under the 1981 Act,[1501] defamation actions are subject to a
one-year limitation period, running from the date of publication of the
defamatory matter. Special rules apply to the extension of this limitation
period.[1502]
The limitation period may be extended to a period of “up to three years” from
the date of publication.[1503]
Thus, in essence, the basic limitation period may be extended by up to two
years. A court may not grant the extension unless satisfied that it
was not reasonable in the circumstances for the plaintiff to have commenced the
action within one year of the publication.[1504]
An application for extension may be made even where the standard, one-year
limitation period has expired.[1505]
Where an extension is granted, the limitation period for actions to recover
contributions associated with the defamation action is also extended [1506]
6.71
As in the Northern Territory,
under the Queensland Limitation of Actions Act 1974 (Queensland), as amended, a one-year limitation period applies to
defamation actions, running from the date of publication.[1507] A person claiming to have a cause
of action for defamation may apply to the court for an order extending this
limitation period.[1508]
An extension may be granted where the court is satisfied that “it was not
reasonable in the circumstances for the plaintiff to have commenced an action
in relation to the matter complained of within one year from the date of
publication”.[1509]
The extension may last for a period of up to three years, running from the date
of publication.[1510]
Thus, in essence, the basic limitation period may be extended by up to two
years. An extension may be provided even if the application is made after
the expiry of the one-year limitation period.[1511] Where an extension is given, the
expiry of the basic limitation period has no effect for the purposes of
limitation.[1512]
6.72
An application for an
extension may be made ex parte, but the court may require that notice of
the application be given to any person to whom the judge thinks it proper that
notice should be given.[1513]
6.73
Under the
South Australia Limitation of Actions Act 1936 (South Australia),[1514] personal injuries actions are
subject to a limitation period of three years.[1515] Since the 1936 Act was amended
in 1972, the courts have the power to extend this limitation period, not only
in personal injuries cases, but in relation to any cause of action, according
to the justice of the case.[1516] This wide discretion may be
compared to the discretion available in the Northern Territory.[1517]
6.74
Under the South
Australia legislation, the courts may extend time-limits or limitation
periods to such an extent and upon such conditions, if any, as the justice of
the case may require. As in the Northern Territory, the Southern
Australian courts must first be satisfied that in all the circumstances of the
case, it is just to grant the extension of time.[1518]
Unlike the Northern Territory, however, the circumstances to which the courts
in South Australia should have regard have been codified.[1519]
These include but are not limited to: the period of the extension sought,
prejudice, the desirability of bringing litigation to an end within a
reasonable time, the nature and extent of the plaintiff’s loss, and the conduct
of the parties.
6.75
As in the Northern
Territory, the Southern Australian court must also be satisfied of one
of the following:
i)
That facts
material[1520]
to the plaintiffs case were not ascertained by him until some time after 12
months before the expiration of the limitation period or occurring after the
expiration of that period, and that the action was instituted within 12 months
after the ascertainment of those facts by the plaintiff; or
ii)
That the plaintiff’s
failure to institute the action within the limitation period resulted from
representations or conduct of the defendant, or a person whom the plaintiff
reasonably believed to be acting on behalf of the defendant, and was reasonable
in view of those representations or that conduct and other relevant
circumstances.[1521]
6.76
Unlike the Northern
Territory, however, the Southern Australian Act does not contain any special
provisions for defamation actions, which therefore fall under the general
extension provision.
6.77
The Tasmanian Limitation
Act 1974 (Tasmania),[1522]as
amended,[1523]
makes provision for the extension of the limitation period applicable to
personal injuries actions. The provision that applies depends on the date
of accrual of the personal injuries action: section 5(3) applies to actions
that accrued before January 1 2005;[1524]
while section 5A(5) applies to actions accruing thereafter.
6.78
Under section 5(3), a
judge may extend the limitation period as he or she thinks necessary, but the
period within which the judge determines that the action may be brought may not
exceed a period of 6 years from the date of accrual. This constitutes a
maximum three-year extension, as the limitation period for actions accruing
before 2005 is three years running from the date of accrual.[1525] There is no statutory list
of factors to take into consideration.[1526]
The judge may only extend the limitation period if he thinks that in all the
circumstances of the case it is “just and reasonable” to do so.[1527] The judge’s discretion can be
exercised even if the initial three-year limitation period has expired.[1528]
6.79
Personal injuries
actions accruing after January 1 2005 are subject to a three-year limitation
period running from the date of discoverability, and a 12-year long-stop
running from the date of the act or omission giving rise to the cause of
action.[1529]
Under section 5A(5) of the 1974 Act,[1530]
a judge may extend the limitation period for personal injuries actions to
the expiry of three years from the date of discoverability.[1531]
Thus, the broad discretion available prior to the 2004 amendments has been
reduced to a wide discoverability rule.
6.80
The limitation of
actions in Victoria is primarily governed by the Limitation of Actions Act
1958 (Victoria), as amended.[1532]
6.81
The 1958 Act has
undergone several reviews[1533]
and numerous amendments[1534]
in relation to personal injuries actions. Two limitation regimes are now
contained within the 1958 Act: Part II governs acts or omissions occurring
before 21 May 2003; Part IIA governs acts or omissions occurring on or after 21
May 2003.[1535]
Part IIA applies to all actions for personal injury or death commenced on or after
1 October 2003.[1536]
6.82
Section 23A of the 1958
Act[1537]
allowed for the extension of the limitation period applicable to personal
injuries actions. This extension could be applied where the court
considered it “just and reasonable” to do so.[1538]
The extension was available for such period as the court determined.[1539] The court was mandated to have
regard to “all the circumstances of the case”, including the following
non-exhaustive list.[1540]
6.83
Part IIA of the 1958
Act, which was introduced in 2003,[1541]
resulted from the “Ipp Report”.[1542]
Two limitation periods now apply to actions for personal injury or death: a
basic limitation period of three years running from discoverability,[1543] and a long-stop period of 12 years
running from the date of the act or omission giving rise to the cause of
action.[1544]
Special limitation periods are provided for persons suffering under a
disability,[1545]
survivor actions,[1546]
wrongful death actions,[1547]
and actions by minors injured by close relatives or close associates.[1548]
6.84
The court may extend
the limitation periods applicable to any of these actions for such period as it
determines, provided that it decides that it is “just and reasonable” to do so.[1549] The court is mandated to have
regard to “all the circumstances of the case”, including a non-exhaustive list.[1550] This list of factors, with the
exception of factor (e), mirrors those to which the court was to have regard
under section 23A. A novel provision is contained, however, in section
27L(2), which provides that “to avoid doubt”, the court may have regard to the
following circumstances: [1551]
a.
Whether the passage of time has prejudiced a fair
trial of the claim;
b.
The nature and extent of the plaintiff's loss; and
c.
The nature of the defendant's conduct.
6.85
The law of defamation
and the limitation of defamation actions in Victoria was overhauled by the Defamation
Act 2005 (Victoria).[1552]
As a result of amendments made by this Act, the 1958 Act sets a one-year
limitation period for defamation actions, running from the date of publication.[1553] This limitation period may be
extended for up to three years running from the date of publication[1554] Such an extension may only be granted
if the court is satisfied that it was not reasonable in the circumstances for
the plaintiff to have commenced the action within the original one-year
limitation period.[1555]
6.86
The law of limitation
in Western Australia is currently governed by the Limitation Act 2005
(Western Australia.[1556]
The Act allows for the extension of the limitation period in the following
cases:
·
personal injuries and
wrongful death actions (based primarily on discoverability principles);
·
defamation actions;
·
fraud or improper
conduct;
·
actions by a person who
was under 18 at the date of accrual; and
·
actions by person with
a mental disability.[1557]
6.87
The Act sets a one-year
limitation period for defamation actions, running from the date of publication.[1558] It allows for the extension of that
limitation period if the courts are satisfied that it was not reasonable in the
circumstances for the plaintiff to have commenced an action in relation to the
matter complained of within one year from the publication.[1559]
An action relating to the publication of defamatory matter cannot be commenced
if 3 years have elapsed since the publication.[1560]
6.88
When deciding, in an
extension application, whether to extend the time for the commencement of an
action, a court is to have regard to —
(a) whether the delay in commencing the
proposed action, whatever the merit of the reasons for that delay, would
unacceptably diminish the prospects of a fair trial of the action; and
(b) whether extending the time would
significantly prejudice the defendant (other than by reason only of the
commencement of the proposed action).[1561]
6.89
In 1982, the Law Reform
Commission of Western Australia recommended that instead of introducing
a discoverability rule, the limitation period should not apply where the court
determined that its application would be “unjust”.[1562]
The focus of the court should, it suggested, be upon the justice of
the case in the circumstances. The WA Commission essentially recommended the
introduction of something similar to the discretion allowed for under the UK Limitation
Act 1975, without the discoverability provisions that accompanied that
discretion.
6.90
The Commission set out
statutory criteria which would assist the court in making this decision.
Thus, the justice of the case would be determined by the court in light of all
the circumstances, including the following:
a) The reasons why the plaintiff did not commence the action within the
statutory limitation period, including that there was a significant people of
time after the cause of action accrued during which the plaintiff neither knew
nor ought reasonably to have known that he or she had suffered the injury
giving rise to the cause of action.
b) The steps taken by the plaintiff t obtain medial, legal or other expert
advice and the nature of any such advice received
c) The extent to which the plaintiff acted promptly and reasonably once he
or she knew that the alleged act or omission of the defendant might be capable
at that time of giving rise to an action for damages
d) The conduct of the defendant after the cause of action accrued relevant
to the commencement of proceedings by the plaintiff
e) The extent to which the defendant may be prejudiced in defending the
action, other than relying on a defence of limitation, if the limitation period
does not apply,
f) Alternative remedies available to the plaintiff if the
limitation period applies.
g) The duration of any disability of the plaintiff whether arising before
or after the cause of action accrued.[1563]
6.91
The Limitation Act
1935 (WA) was amended in 1983 to cater for persons who have contracted “a
latent injury that is attributable to the inhalation of asbestos”. This
amendment was narrow, in light of the Commission’s recommendations and by
comparison to legislative amendments in other Australian jurisdictions.[1564]
6.92
In its 1997 Report, the
Law Reform Commission of Western Australia recommended that a “very narrow
discretionary power” to extend the limitation period should be introduced as a
central feature of the core regime. The limitation period or long-stop
period could be extended by the courts “in the interests of justice”, but only
in exceptional circumstances, where the prejudice to the defendant in having to
defend an action after the normal litigation period has expired, and the
general public interest in the finality of litigation, are outweighed by other
factors.[1565]
6.93
The Commission set out
the following eight factors that could be taken into account by the courts in
exercising its discretion:
i.
The length and reasons
for delay on the part of the plaintiff,
ii.
The extent to which,
having regard to the delay, there is or is likely to be prejudice to the
defendant;
iii.
The nature of the
plaintiff’s injury;
iv.
The position of the
defendant;
v.
The conduct of the
defendant;
vi.
The duration of the
disability of the defendant arising on or after the date of discoverability;
vii.
The extent to which the
plaintiff and defendant acted properly and reasonably once the injury became
discoverable; and
viii.
The steps, if any,
taken by the plaintiff to obtain medical, legal or other expert advice and the
nature of any such advice received.[1566]
6.94
This list is rather
more extensive than those listed in section 33 of the English Limitation Act
1980, and deals with factors other than the latency of damage. Even
though the Western Australia Commission suggested that the discretion should be
“very narrow”, it is phrased in wide, unrestricted terms.
6.95
Under the New Zealand Law
Commission’s consultation draft of a Limitation Defences Bill 2007, the
two-year primary limitation period applicable to claims in respect of abuse or
bodily injury may be extended up to a duration of six years.[1567] The parties may agree to alter
the length of the applicable limitation period, the time at which the defendant
could raise the limitation defence, vary or add to the circumstances in which
the defendant could raise a defence.[1568]
The court or tribunal may make an extension subject
to any conditions it thinks just to impose, but only if satisfied that the
delay in making the claim was occasioned by a mistake, or by any other
reasonable cause.[1569]
6.96
This ability to extend
the period is similar to the court’s power under the proviso to section 4(7) of
the New Zealand Limitation Act 1950, which relates to actions in respect
of bodily injury.
6.97
There is no judicial
discretion to extend the limitation period under the core regimes adopted in
Alberta, Ontario, and Saskatchewan, or under the ULCC Model Limitations Act of
2005. As seen above, all of these pieces of legislation have emanated
from the ground-breaking recommendations of the Alberta Law Reform Institute.[1570] In its 1986 Discussion
Paper, that Institute stated that where a discoverability rule alone was
introduced as the starting point for the running of the basic limitation
period, judicial discretion to extend the limitation period is unnecessary:-
“If a discovery period if applicable, a claimant will not be exposed to
the risk that his claim will be barred before he could have discovered it with
the exercise of reasonable diligence. For claims subject to the discovery
rule, we will recommend a limitation period of sufficient duration to give even
a relatively unsophisticated claimant ample time in which to attempt to settle
his controversy with the defendant and to bring a claim when necessary.
We are not prepared to go further, for we believe that to go further would
sacrifice the objectives of a limitations system.”[1571]
6.98
Judicial discretion to
extend the limitation period does, however, apply in Manitoba and in Nova
Scotia.
6.99
Under Part II of the
Manitoba Limitation Act 1987 (Manitoba),[1572]
the courts have discretion to grant the plaintiff leave to proceed out of
time if the court is satisfied that not more than 12 months elapsed between:
a)
The date on which the
applicant first knew or ought to have known of all the material facts of a
decisive character upon which the action is based, and
b)
The date of the
application for leave.[1573]
6.100
This discretion is
based on discoverability principles - there is no alternative statutory
discoverability provision.
6.101
Once the court has
granted leave to begin an action, the court will then fix a period within which
the applicant must begin the action. If the applicant fails to comply with this
time-limit, the order granting leave will expire and cease to have effect.[1574] The discretion is not unfettered
- a long-stop provision applies to the exercise of the discretion. The
court may not grant leave to being an action, or to continue an action that has
been begun more than 30 years after the occurrence of the acts or omissions
that gave rise to the cause of action.[1575]
6.102
In its recent Draft
Report for Consultation on the Limitation of Actions Act, the Manitoba Law
Reform Commission noted that none of the modern Canadian limitations regimes
have included a residual discretion of the nature that is available under the
1987 Act, and the general consensus in Canada appears to be that permitting
courts to waive or extend limitations creates too much uncertainty. [1576] The Commission recommended
that its proposed Limitation Act should not retain discretion in a court to
extend a limitation, on the following reasoning:
“The Commission is not persuaded that there is sufficient reason to
leave the Court any residual discretion to extend a limitation. Permitting any
discretion simply invites applications to extend, unnecessarily increasing both
the burden on the courts and the cost and unpredictability of litigation. The
potential difficulties created by such a provision are too great to make
additional discretion desirable, and the flexibility built into the new
limitations regime is sufficiently broad in any event.” [1577]
6.103
The Nova Scotia Limitation
of Actions Act 1989[1578]
provides a general extension provision based entirely on discretion.
Under this provision, a court may disallow a defence based on time limitation
and allow the action to proceed if it appears to the court to be equitable
having regard to the degree to which:
(1)
The time
limitation prejudices the plaintiff or any person whom he represents; and
(2)
Any
decision of the court would prejudice the defendant or any person whom he
represents, or any other person.[1579]
6.104
The court is to have
regard to all the circumstances of the case, and in particular to a list of
factors similar to those contained in section 33 of the English Limitation
Act 1980.[1580]
The court cannot exercise jurisdiction where an action is commenced or
notice is given more than four year after the limitation period expires.[1581] The provision does not apply
where the initial limitation period has expired, or where the initial
limitation period is ten years of more in length.[1582]
6.105
With few exceptions,
judicial discretion has been introduced only in respect of the limitation
periods applicable to personal injuries, wrongful death and defamation actions.
In the Australian Capital Territory, discretion is available with respect
to actions involving latent property damage.[1583] The Northern Territory, South
Australia and Manitoba have provisions allowing for discretion in all civil
actions,[1584]
while British Columbia allows time limits to be extended in a wide range of
civil actions.[1585]
In contrast, in Canada,[1586]
New Zealand[1587]
and the United States,[1588]
the courts have held that causes of action accrue only when damage is
discoverable. Discoverability is, therefore, of general application in these
jurisdictions, even in the absence of an ultimate limitation period. It
has been considered unnecessary to introduced judicial discretion to extend the
limitation period in cases such as professional negligence, economic loss, or
defective buildings.
6.106
While the incorporation
of judicial discretion into limitations law has been criticised,[1589] it has the merit of allowing delay in
the commencement of proceedings to be excused for non-discoverability reasons.[1590] Thus, where the strict
application of the “date of knowledge” test causes injustice, a court does not
have to apply an unnatural construction to the meaning of that test in order to
avoid the injustice.
6.107
The primary advantages
of judicial discretion are simplicity and flexibility. Judicial
discretion is much simpler than legislative provisions based on discoverability,
as can be seen from the evolution in the UK between the Limitation Act 1963 and
the Limitation Acts 1975 and 1980. The argument that
judicial discretion will lead to excessive delay may be countered by the
argument that it remains in the plaintiff’s best interest to pursue his claim
expeditiously.[1591]
6.108
Judicial discretion
allows judges to balance the numerous factors involved and the hardships caused
to plaintiff and defendant. It does not necessarily sacrifice
consistency.[1592]
The Law Reform Commission of Western Australia reported in 1997 that experience
with discretion-based provisions in Victoria, A.C.T., and New South Wales had
shown that the courts are able to use such provisions to do justice without
producing uncertainty and inconsistency.[1593]
Even if it does create uncertainty, it may be argued, as noted by Ormrod LJ in Firman
v Ellis,[1594] that “uncertain justice is
preferable to certain injustice”.[1595]
Rules that operate to a high degree of certainty are often unduly rigid, and
may be excessively technical. Flexibility has the advantage of fairness
to the claimants, who will not be prejudiced by the expiry of a limitation
period before they had sufficient opportunity to commence a claim.
6.109
As a corollary of the
flexibility that it creates, judicial discretion has the potential to generate
uncertainty. Certainty is, of course, one of the primary functions of a
limitations system. Where a judge has discretion to extend or dis-apply a
limitation period, the defendant is not certain as to when a claim can no
longer be brought against him. The defendant can therefore face
liability for an indefinite period of time, spanning decades after the events
giving rise to a potential claim. Such uncertainty may lead to higher
insurance costs as it becomes more difficult and more expensive to insure
against claims where the liability is essentially open-ended.
6.110
Additionally, it might
be said that judicial discretion could undermine the effectiveness of a fixed
limitation period as a means of encouraging plaintiffs not to sleep on their
rights. Moreover, it may cause a general slowing down of the process of
proceeding with claims.[1596]
6.111
The introduction of
judicial discretion also generates problems of interpretation, particularly as
statutory guidelines aimed at directing the exercise of discretion cannot
always be clearly and simply drafted, given that the aim of the discretion in
the first place is to ensure flexibility. Discretion therefore has the
potential to lead to divergent approaches between judges and courts, as a
result of different ideas of the equity of a given situation. This may cause
confusion and lead to prolonged and unnecessary litigation.
6.112
Further, the Law Reform
Commission of Western Australia in 1997 reported that:
“[t]he experience of jurisdictions which deal with the problem of latent
damage by giving the courts a discretion suggests that the discretion is
practically always exercised in favour of the plaintiff, particularly in cases
where the plaintiff did not acquire the requisite knowledge within the
limitation period.”[1597]
6.113
Moreover, in many
jurisdictions it is necessary to make an application to the court for an
extension of the limitation period, or for the period to be disregarded. This
adds delay and expense to a litigation process that is already invariably slow
and costly.
6.114
The Commission agrees
with the observations of the Alberta Institute with regard to the absence of a
necessity for judicial discretion in circumstances where a regime incorporating
a short basic limitation period and a longer ultimate limitation period,
supplemented by rules governing postponement, is formulated. The
advantage of certainty that is the product of the formulation of such a regime
would be unnecessarily weakened in the event that judicial discretion to extend
or dis-apply the limitation period were to be introduced as a feature of the
regime. Moreover, the additional costs, delay and unnecessary litigation
that would inevitably result, albeit only in the initial years of the exercise
of such discretion, seems anathema to the objective of introducing a
simplified, straightforward, comprehensible limitations regime. The Commission
has previously expressed the view that reliance on judicial discretion in the
application of limitation law would result in unnecessary uncertainty,[1598] and it remains firmly of that view.
6.115
The Commission is of
the view that there is a real danger that if such discretion was introduced, a
practice would be likely to develop in the great majority of cases of
exercising that discretion in favour of the plaintiff. It is also
considered that judicial discretion would be unnecessary if an ultimate
limitation period was available and particularly in the light of the additional
levels of flexibility and protection for defendants that result from the
courts’ inherent discretion to dismiss claims for want of prosecution even
before the statutory limitation period has expired.
6.116
The Commission provisionally recommends that if
the proposed new legislation governing limitation of actions limitation contains a short
basic limitation period and a longer ultimate limitation period, supplemented
by rules governing postponement, it need not include a provision allowing for
judicial discretion to either extend or dis-apply the limitation period.
6.117
In light of its recent enactment, the
Commission does not propose to make any recommendations on the limitation
periods in the Defamation
Act 2009.
7.01
The courts have an
inherent discretion to dismiss or strike out claims for ‘want of
prosecution’. This is a facet of the courts’ inherent jurisdiction to
control their own procedure[1599]
and is discretionary in nature.[1600]
The rationale for this inherent jurisdiction is analogous to the rationale that
underpins limitations law: as a result of the delay, the defendant can no
longer reasonably be expected to defend the claim; put simply, “the chances of
the courts being able to find out what really happened are progressively
reduced as time goes on.”[1601]
7.02
The jurisdiction to
dismiss for want of prosecution is distinct from the courts’ power under the
Rules of Court to dismiss claims at particular times (e.g. failure to deliver a
statement of claim,[1602]
failure to give notice of trial,[1603]
lack of proceedings for two years,[1604]
or where the pleadings disclose no reasonable cause of action, or are frivolous
or vexatious.[1605])
It is also distinct from the courts’ power to dismiss a case that is
‘bound to fail’.[1606]
7.03
In this Chapter, the
Commission examines this inherent jurisdiction against the general background
of the law on limitation of actions. In Part B, the Commission examines the
general principles that have guided the courts for many years in applying this
inherent jurisdiction. In Part C, the Commission examines recent case law which
may indicate some changes in the manner in which these general principles are
applied by the courts. In Part D, the Commission notes that a stricter approach
to delay has been applied by the courts having regard to considerations arising
under the Constitution and the European Convention on Human Rights. In Part E,
the Commission notes the connection between this jurisdiction and the Statute
of Limitations, noting the differing approaches to dismissal of cases for
want of prosecution where, on the one hand, delay was incurred prior to the
commencement of proceedings (pre-commencement delay) and, on the other hand, delay
was subsequently incurred in the prosecution of the claim (post-commencement
delay). In Part F, the Commission sets out its conclusions and provisional
recommendation on this issue.
7.04
Want of prosecution
arises where, owing to inordinate and inexcusable delay, there has been an
extreme lapse of time that would cause or is likely to case prejudice to the
defendant in the conduct of his defence.[1607]
7.05
A two-step test must be
followed before the courts can dismiss a claim.[1608]
First, it must be considered whether or not the delay in question is both
inordinate and inexcusable.[1609]
The onus of establishing inordinate and inexcusable delay lies on the party
seeking to have the claim dismissed, which is usually the defendant.[1610] The prediction of what period of
inactivity will constitute ‘inordinate delay’ remains an inexact science, with
each case being decided on its own merits. The courts have given no
general indication of how long the delay must be to qualify as inordinate.[1611] It is significant that in general,
inordinate periods of delay will be considered ‘excusable’ by virtue of the
fact that the statutory limitation period applicable to the claim had not yet
expired at the time at which the delay was incurred.[1612]
This is further discussed below (see page 313).
7.06
If the delay has
not been inordinate and inexcusable, there are no real grounds for dismissing
the proceedings.[1613]
Once the cumulative requirements of inordinate and inexcusable delay are
fulfilled, however, the courts must weigh up the “balance of justice”, and
thereby attempt to strike a balance between the competing rights of the
parties.[1614]
The courts will be influenced by the concepts of fairness and justice,
and must balance the interests of both litigants i.e. ‘whether it is fair to
the defendant to allow the action to proceed and whether it is just to the
plaintiff to strike out the action’.[1615]
The importance of this balancing process was stressed in Dowd v Kerry
County Council where
Ó Dálaigh CJ stated that ‘in weighing the extent of one party's delay, the
court should not leave out of account the inactivity of the other
party…[l]itigation is a two–party operation and the conduct of both parties
should be looked at.’[1616]
7.07
A list of the
factors that may be taken into account was set out in Primor Ltd v Stokes
Kennedy Crowley.[1617] Such factors include
the nature of the case, the type of claim advanced, the extent of the
defendant’s indemnity, the conduct of the parties, the complexity of the
arguments, whether or not the claim was such that it required investigation
immediately after the event, or whether or not there claim was based on
physical evidence and, if so, whether the evidence had been or could be
preserved over a reasonable period pending trial,[1618]
and the excuse tendered with respect to the delay.[1619]
7.08
When considering the
balance of justice, the courts will consider the degree to which the defendant
has been prejudiced by the delay.[1620]
Prejudice may be of varying kinds: it may relate to the trial of the
issue, the defendants’ liability[1621]
and/or business interests, or the damages to be recovered. In addition to
actual or specific prejudice, a defendant may rely on general or
presumed prejudice. A delay will be considered prejudicial if it
will necessarily create an injustice to the defendant.[1622]
The prejudice must be “so extreme that it would be unjust to call upon a
particular defendant to defend himself or herself”.[1623]
As a general rule, it is accepted that “the longer the delay, the greater
the likelihood of serious prejudice at the trial.”[1624]
7.09
The prejudice suffered by
the defendant may be in the nature of stress and anxiety. It is
noteworthy, albeit that it related to prosecutorial delay in criminal
proceedings, that in a recent judgment of the Supreme Court in Cormack and
Farrell v DPP & Ors,
Kearns J. found that an applicant must demonstrate “something more than the
predictable levels of anxiety that any citizen would feel in the face of an
impending trial.”[1625]
He noted that it may be helpful if medical evidence is furnished in support of
a contention that an applicant has suffered a particular level of stress and
anxiety in the particular circumstances of his or her case,[1626]
but he held that it is not a matter of looking at the degree of anxiety in a
quantitative sense, requiring proof thereof, and it not necessary for an
applicant to meet a threshold of having to establish or prove a form of
psychiatric illness and he remarked that it would be “most unfortunate” if
cases relating to prosecutorial delay came to be determined by reference to
some form of context between doctors called by various parties.[1627]
7.10
The general principles
applicable to the exercise of the court’s inherent jurisdiction to dismiss for
want of prosecution are, at this stage, well established. There
has, however, recently been something of a fresh approach to the weight that is
to be attached to the various factors that are weighed in the balance, particularly
in light of the incorporation into Irish law of the European Convention on
Human Rights.
7.11
Recent case law
suggests a new departure in terms of the degree to which the courts will excuse
lengthy delays. Giving the judgment of the Supreme Court decision in the
case of Gilroy v Flynn in
2004, Hardiman J. noted that there have been “significant developments” in the
law relating to the courts’ inherent jurisdiction to dismiss stale claims since
the High Court gave judgment in Rainsford v Limerick Corporationand Primor Ltd v Stokes
Kennedy Crowley.[1628]
He listed in particular the following three developments:
i)
The amendment of Order
27, rule 1, RSC;
ii)
Increased awareness of
the consequences of delay;
iii)
The obligation of the
Courts - following cases such as McMullen v Ireland and the European
Convention on Human Rights Act 2003 - have an obligation to ensure that
rights and liabilities, civil or criminal, are determined within a reasonable
time.
7.12
Hardiman J. then
continued as follows:-
“These changes, and others, mean that comfortable assumptions on the
part of a minority of litigants of almost endless indulgence must end. Cases
such as those mentioned above will fall to be interpreted and applied in light
of the countervailing considerations also mentioned above and others and may
not prove as easy an escape from the consequences of dilatoriness as the
dilatory may hope. The principles they enunciate may themselves be revisited in
an appropriate case. In particular, the assumption that even grave delay will
not lead to the dismissal of an action if it is not on the part of the
plaintiff personally, but of a professional adviser, may prove an unreliable
one.” [1629]
7.13
The evolution of the
approach of the courts to the length of time which may be considered “inordinate”,
and the factors upon which that evolution has been based, including those set
out by Hardiman J. in Gilroy v Flynn, are indicative of the attitudes
prevailing on a broader scale in relation to the limitation of actions in
general and, in that context, merit closer consideration.
7.14
Rule 1 of Order 27 of
the Rules of the Superior Courts regulates the dismissal of proceedings where
the plaintiff has failed to deliver a statement of claim. In reality, a
statement of claim is very rarely, if ever, delivered within the time limit set
out in the Rules, i.e. within 21 days of the entry of an appearance.
Prior to 2004, plaintiffs were routinely granted an extension of time to deliver
the statement of claim, albeit generally with a costs penalty.[1630] In 2004, however, rule 1 of Order 27
was amended,[1631]
such that it now reads as follows:-
“If the plaintiff, being bound to deliver a statement of claim, does not
deliver the same within the time allowed for that purpose, the defendant may
... at the expiration of that time apply to the Court to dismiss the action,
with costs, for want of prosecution; and on the hearing of the first such
application, the Court may order the action to be dismissed accordingly, or may
make such other order on such terms as the Court shall think just; and on the
hearing of any subsequent application, the Court shall order the action
to be dismissed as aforesaid, unless the Court is satisfied that special
circumstances (to be recited in the order) exist which explain and justify the
failure and, where it is so satisfied, the Court shall make an order—
(a) extending the time for delivery of a statement of claim,
(b) adjourning the motion for such period as is
necessary to enable a statement of claim to be delivered within the extended
time,
and on such adjourned hearing—
(i) if a statement of claim has been delivered within the extended time, the
Court shall allow the defendant the costs of and in relation to the motion at
such sum as it may measure in respect thereof;
(ii) if a statement of claim has not been delivered within the extended time,
the Court shall order the action to be dismissed, with costs, for want of
prosecution.
7.15
Thus, a plaintiff must
now show special circumstances for failing to deliver a statement of claim
within the specified time, and must justify his or her failure to adhere to the
time-limit. Where the plaintiff fails to provide such a justification,
the court “shall” dismiss the plaintiff’s claim. Moreover, if time is
extended and the plaintiff again fails to comply with the time-limit, the court
“shall” dismiss the claim. In effect, this means that a plaintiff can no
longer repeatedly ignore the obligation to prosecute his claim expeditiously;
rather, he or she will have to advance an acceptable justification for any
delay.[1632]
7.16
In Morrissey v
Analog Devices BV,[1633] Herbert J. noted that the
amendment of Rule 27 in 2004 had “signalled a change of attitude to procedural
delay.” Indeed, through this amendment, the Oireachtas has indicated its
desire to create a culture of adherence to the time-limits that apply to the
prosecution of civil actions, and its support for the principle that parties
should prosecute their claims with due expedition and promptness.
7.17
In Gilroy v Flynn, Hardiman
J. noted the following as the second recent development in the approach of the
courts to want of prosecution:-
“[T]he Courts have become ever more conscious of the unfairness and
increased possibility of injustice which attach to allowing an action which
depends on witness testimony to proceed a considerable time after the cause of
action accrued.[1634]
7.18
Of particular
relevance in this context is the previous decision of Hardiman J. in J O'C v
Director of Public Prosecutions.[1635]
Although that case involved a delay in the prosecution of a criminal case,
Hardiman J. addressed the general effect of lapse of time on a proposed trial
in cases of all kinds, “civil as well as criminal and whether the trial is
to be held with or without a jury”.[1636]
Hardiman J. noted that “lapse of time is intrinsically prejudicial to the
fairness of a trial”, in relation to cases of all kinds.[1637]
Following a comprehensive
examination of previous cases involving lengthy periods of delay, both Irish
and in the UK, Hardiman J. drew the following principles:-
(a) A lengthy lapse of time between an
event giving rise to litigation, and a trial creates a risk of injustice:
"the chances of the courts being able to find out what really happened are
progressively reduced as time goes on";
(b)
The lapse of time may be so
great as to deprive the party against whom an allegation is made of his
"capacity … to be effectively heard";
(c)
Such lapse of time may
be so great as it would be "contrary to natural justice and an abuse of
the process of the court if the defendant had to face a trial which (he or) she
would have to try to defeat an allegation of negligence on her part in an
accident that would taken place 24 years before the trial …";
(d)
Having regard to the above
matters the court may dismiss a claim against a defendant by reason of the
delay in bringing it "whether culpable or not", because a long lapse
of time will "necessarily" create "inequity or injustice",
amount to "an absolute and obvious injustice" or even "a parody
of justice";
(e)
The foregoing principles apply
with particular force in a case where "disputed facts will have to be
ascertained from oral testimony of witnesses recounting what they then recall
of events which happened in the past …", as opposed presumably cases where
there are legal issues only, or at least a high level of documentation or
physical evidence, qualifying the need to rely on oral testimony.[1638]
7.19
As seen in Chapter One
above, the European Court of Human Rights has condemned excessive delays in
domestic litigation. The Irish State has been found to be in breach of the
Convention on a number of occasions with respect to its obligation to ensure
that legal proceedings are brought to a final determination within a reasonable
time. The importance and relevance of the Strasbourg Court’s
jurisprudence is a factor that the Commission considers cannot be
underestimated in terms of the approach that should be fostered with respect to
the creation of a modern limitations regime.
7.20
Also indicative of the
Oireachtas’ desire to foster a more stringent approach within the courts to the
passage of time in civil proceedings is the Civil Liability and Courts Act
2004, which places restrictions on the courts’ ability to enlarge the time
limits available for the performance of procedural steps in personal injuries
actions. Section 9(1) thereof provides:-
“It shall be the function of the courts in personal injuries actions to
ensure that parties to such actions comply with such rules of court as apply in
relation to personal injuries actions so that the trial of personal injuries
actions within a reasonable period of their having been commenced is secured”.
7.21
Although section 9 does
not materially alter the courts’ jurisdiction to ensure compliance with time
limits set out in the Rules of the Superior Courts 1986,[1639] it is a further indication on the part
of the Oireachtas that time limits should be more rigorously enforced. [1640]
7.22
The remarks made by
Hardiman J. in 2004 with respect to the role of the Courts in ensuring that
Article 6 rights are not infringed[1641]
have been cited and applied in a series of recent cases decided by the Superior
Courts. In Stephens v Paul Flynn Ltd,[1642]
Clarke J. adverted to the decision in Gilroy. He noted that the “central
tests” (i.e. inordinate and inexcusable delay, and the balance of justice)
remain the same, but he went on to state that in light of the conditions
prevailing in the courts system, there was a need for a significant
re-assessment of the weight to be attached to the various factors that are to
be considered in respect of the balance of justice:-
“[I]t seems to me that for the reasons set out by the Supreme Court in Gilroy
the calibration of the weight to be attached to various factors in the
assessment of the balance of justice and, indeed, the length of time which
might be considered to give rise to an inordinate delay or the matters which
might go to excuse such delay are issues which may need to be significantly re-assessed
and adjusted in the light of the conditions now prevailing. Delay which would
have been tolerated may now be regarded as inordinate. Excuses which sufficed
may no longer be accepted. The balance of justice may be tilted in favour of
imposing greater obligation of expedition and against requiring the same level
of prejudice as heretofore.”
7.23
Clarke J.’s judgment in
Stephens was upheld in the Supreme Court, where Kearns J. referred to
remarks made by Hardiman J. in Gilroy v Flynn as to the “changing legal
landscape” and noted that “by no stretch of the
imagination” could be period of delay that preceded the delivery of a statement
of claim in that case be seen as anything other than inordinate.[1643]
7.24
In Roche v Michelin
Tyre plc,[1644] Clarke J. reiterated that despite
recent developments in the law in this area, the basic questions which the
court has to address remain those originally set out in Rainsford v Limerick
Corporation.
7.25
This approach was
approved in Wolfe v Wolfe[1645] by Finlay Geoghegan J., as follows:-
“[T]he decisions since Primor plc v. Stokes Kennedy Crowley do
not mean that there have been a change in the factors which the court should
properly take into account in assessing where the balance of justice lies but
rather that the weight to be attached to the various factors may need to be
reconsidered.”
7.26
A comparable approach
was taken in a number of other recent cases.[1646] Of particular relevance are the
following comments of Clarke J. in Kategrove (in receivership) v Anglo Irish
Bank:-
“It is clear, therefore, that in a case where the defendant applicant
satisfies the court that there is inordinate and inexcusable delay, the court
should go on to consider where the balance of justice lies by reference to the
factors identified in Primor but with a stricter approach to
compliance.”[1647]
7.27
An alternative approach
was adopted in Morrissey v Analog Devices BV.[1648]
In that case, Herbert J. noted that the amendment of Rule 27
in 2004 had “signalled a change of attitude to procedural delay.” He went on to
observe that this was a “material and significant change” have been “further
indicated and strongly emphasised” by the Supreme Court in Gilroy v Flynn, again
in 2004. Herbert J. noted, however, that the delay that was at
issue in Morrissey had occurred in October, 2004, and he held as
follows:-
“[I]n my judgment it would be neither reasonable nor just for this court
to immediately enforce such a significantly changed approach to procedural
delay on the part of a claimant by reference to facts developing at the same
time as this new jurisprudence was itself evolving.”
7.28
The decrease in the
level of tolerance that will be shown by the courts to procedural delay was
very evidence from the following comments of Feeney J. in Faherty v Minister
for Defence & Ors:-
“The current approach of the Courts in supervising litigation cannot
permit the continuance of proceedings such as these where delay is so excessive
and so inordinate as to be a cause of a real risk to justice and where stale
proceedings are allowed to fester and where no real excuse has been offered.” [1649]
7.29
In the Supreme Court
decision of Desmond v MGN Ltd,[1650]
Kearns J. held that in the light of the remarks of Hardiman J. in Gilroy
v Flynn and Clarke J. in Stevens v Paul Flynn Ltd, the requirements
of the European Convention on Human Rights “add a further consideration to the
list of factors which were enumerated in Primor as factors to which the
courts should have regard when deciding an issue of this nature.”
7.30
In his concurring
decision in that case, however, Geoghegan J. took a certain degree of issue
with the comments of Kearns J. as to the evolution of the courts’ approach to
want of prosecution. Specifically, Geoghegan J. noted that on his
analysis, the comments expressed by Hardiman J. in Gilroy v Flynn were obiter
dicta. Geoghegan J. stated firmly that the basic principles set out
in Rainsford v Limerick Corporation and Primor plc v. Stokes Kennedy
Crowley “remain substantially unaltered.” He continued as follows:-
“I do not think that the case law of the Court of Human Rights relating
to delay justifies reconsideration of those principles or in any way modifies
those principles. I do not know of any relevant case of the Court of Human
Rights dealing with when an action should be struck out for delay. The dicta of
Hardiman J. to which I have already referred indicate that his view is that
application of those principles should now change or indeed that the principles
themselves might have to be “revisited”. I am not convinced that that
would be either necessary or desirable. It would seem to me that those
principles have served us well. Unless and until they are altered in an
appropriate case by this court, I think that they should still be treated as
representing good law [...].”[1651]
7.31
Also concurring with
the dismissal of the claim for want of prosecution, Macken J. expressed a
similar degree of reservation, as follows:
“Quite apart from the specific requirement of a plaintiff in a libel
action to progress his claim with real diligence, there are also, as is
recalled by the appellant, obligations to progress proceedings, which may be
traced to the provisions of the European Convention on Human Rights and to
certain jurisprudence of the European Court of Human Rights. While accepting
that is undoubtedly so, I do not think it necessary for the resolution of this
appeal to invoke that jurisprudence, there being ample extant Irish
jurisprudence on the matter without doing so. The extent to which that
jurisprudence of the European Court of Human Rights supports an automatic
striking out of proceedings due to delay is not, in my view, yet established.
Nor am I aware of any jurisprudence of that court which suggests that where
inexcusable delay is found, the balancing exercise established in Irish
jurisprudence is inappropriate. I am satisfied that the tests mentioned by
Clarke. J. in Stephens v Flynn Limited, (unrept’d the High Court 28th
April 2005) remain those applicable, namely:
1. Ascertain whether the delay in question is inordinate and
inexcusable; and
2. If it is so established the court must decide where the balance of
justice lies.”
7.32
Thus, it is clear that
the evolution of the courts’ approach to want of prosecution is continuing and
there remains a degree of ambiguity as to the degree to which the incorporation
of the European Convention on Human Rights into domestic law will in fact,
impact on the courts’ practices. The general principles set out in Primor and
Rainsford still represent the watermark, albeit that the weight to be
given to the various factors set out therein is, at present, in a state of
flux.
7.33
Of further relevance in
the context of a review of limitation law is the fact that the new approach of
intolerance to delay emanating from Gilroy v Flynn have been applied by
the courts outside of the context of want of prosecution. In Crawford
Inspector of Taxes v Centime Ltd,[1652]
Clarke J. was assessing an appeal by way of case stated on a point of law with
respect to a determination of the Appeals Commissioner that the respondent was
a taxable person within the meaning of the Value Added Tax Act 1972. As
a preliminary point, Clarke J. noted that there had been a delay of some 30 months
between the date of the Appeal Commissioner’s decision and the date of the case
stated. He accepted that the process by which cases stated are agreed
frequently leads to significant delays in the presentation of an agreed text,
and that the 30 month delay in that case was not unusual, but he went on to
remark as follows:-
“However it is important to note that the jurisprudence of the courts in
this jurisdiction, relying at least in part on the jurisprudence of the
European Court of Human Rights, has come, in recent times, to recognise the
necessity for the supervision of matters before the courts in a manner designed
to ensure the timely disposal of all litigation (see for example Gilroy v.
Flynn, Unreported, Supreme Court, Hardiman J. 3rd December, 2004).
Similar principles apply to quasi judicial tribunals such as the Appeal
Commissioner which can have serious consequences for the rights of parties
particularly where such tribunals are, in a sense, preliminary to the courts
system. It seems to me that that it may well be necessary to give active
consideration to the possibility of.”
7.34
Clarke J. suggested
that it may be necessary to give active consideration to the possibility of
introducing improved methods for arriving at the text of a case stated so as to
avoid the sort of delays which had occurred in that case and which occur in
many other cases, but he went on to clarify that his comments should be
taken as referring to the general issue of the need to introduce a more efficient
system for ensuring the timely forwarding of a case stated to this court rather
than being seen as a comment on anything specific that arises on the facts of
that case.[1653]
7.35
The case of Allergan
Pharmaceuticals (Ireland) Ltd v Noel Deane Roofing and Cladding Ltd[1654]
involved an application to set aside an order granted by McKechnie J. for the
renewal of a summons for a period of three months. In his judgment in the
High Court, O’Sullivan J. adverted to the principle addressed in Gilroy v
Flynn. In a further case relating to the renewal of a summons, O'Grady
v The Southern Health Board & Anor,[1655]
O’Neill J. noted that under the jurisprudence of the European Court of
Human Rights, there is an obligation on the court to ensure that all
proceedings are completed in a reasonable time-frame, and he adverted to Gilroy
and to the Allergan decision as authority for the following
proposition:-
“These cases require [...] a much stricter approach than hitherto
applied to all questions where the indulgence of the court is sought, where the
primary problem is default of pleading or other form of procedure or lapse of
time.”[1656]
7.36
The Supreme Court has
adopted a similar sense of urgency with respect to the prosecution of criminal
proceedings.[1657]
In McFarlane v The Director of Public Prosecutions, Kearns J. stated:-
“[T]he Court must remember that degrees of dilatoriness which may have
been acceptable in the past may no longer be tolerated since the European
Convention on Human Rights Act, 2003 gave effect in this jurisdiction to the provisions
of the Convention. This is a theme more fully adumbrated upon by Hardiman J.
with regard to civil litigation in Gilroy v Flynn [2005] 1 ILRM 290 and more recently by this
Court in the context of criminal litigation in Noonan (aka Hoban) v D.P.P.
[2007] IESC 34. Both the Constitutional
right under Article 38.1 and the rights derived under Article 6 of the
Convention to a trial with reasonable expedition must be vindicated by being
given real effect.”[1658]
7.37
Moreover, in a recent
decision in the long-running case of Moorview Development Ltd v First Active
plc,[1659]
Clarke J. made some preliminary observations in respect of what he saw as
an “unduly lax approach to compliance in a timely fashion with procedural requirements.”
He continued as follows:-
“In the context of the jurisprudence concerning the dismissal of
proceedings arising out of undue delay in their prosecution, Hardiman J., in Gilroy
v. Flynn [2005] 1 I.L.R.M. 290, spoke of the need to
bring an end to what he described as an era of almost endless indulgence. Where
parties come to expect almost endless indulgence then such parties are likely
to act on the not unreasonable assumption that they will be indulged again to
the considerable detriment of the proper functioning of the timely
administration of justice and with consequent significant potential injustice
across a whole range of cases. That consequence is a matter which needs to be
given all due weight in any consideration.”
7.38
Thus, it is not simply
in the context of motions to dismiss for want of prosecution that the recent
developments noted in Gilroy v Flynn have led to a more strict approach
on the part of the courts with respect to delay in the prosecution of a claim.
7.39
The courts’ approach to
the dismissal of cases for want of prosecution differs with respect to delay
that was incurred prior to the commencement of proceedings (pre-commencement
delay) and delay that subsequently incurred in the prosecution of the claim (post-commencement
delay). Post-commencement delay involves procedural delays in the
conduct of proceedings, such as a failure to deliver pleadings for lengthy
periods of time, following the issue of the originating document. Pre-commencement
delay involves a delay between the occurrence of the events that gave rise
to the proceedings, the accrual of the cause of action and the initiation of
proceedings. Once proceedings are officially commenced, the Statute of
Limitations ceases to run against the plaintiff. All delay after this
date is post-commencement delay.
7.40
If proceedings are
commenced within the limitation period and delay thereafter occurs in the
prosecution of the case, account must be taken by the courts, when assessing
whether or not to dismiss the claim for want of prosecution, of whether or not
the statutory limitation period has expired. In general, statutes of
limitations are designed so as to allow a plaintiff a particular length of time
before he or she must commence proceedings, within which to consider the facts,
investigate matters, seek legal advice, and seek to achieve a negotiated
settlement. If the period that would be available to a plaintiff under
the Statute has not yet elapsed at a time when the court dismisses the
claim for want of prosecution, the dismissal is somewhat fruitless: the
plaintiff can simply commence fresh proceedings; thus, the delay will
necessarily be lengthened and the prejudice to the defendant aggravated and
exacerbated. Of course, it would be open to a defendant to argue that the
plaintiff was engaging in frivolous or vexatious litigation if they were to
commence fresh proceedings, but the court analysing the motion for dismissal
could not predict how that matter would be resolved.
7.41
For these reasons, it
is generally considered that any delay in commencing proceedings within the
time allowed by the Statute of Limitations 1957 is “excusable” under the
traditional two-step test.[1660]
7.42
The House of Lords in Birkett
v James addressed
the above considerations,[1661]
and went on to rule that in the absence of conduct amounting to an abuse of
process, the fact that the limitation period has not yet expired must always be
“a matter of great weight” in an application to dismiss for want of
prosecution.[1662]
Lord Salmon stressed that it is “only in the most rare and exceptional
circumstances” that an action would be dismissed before the expiry of the
limitation period.[1663]
Lord Diplock held that the defendant must show something “exceptional” to bring
the case outside the general principle.[1664]
7.43
In Tolley v Morris, the House of Lords
summarised the general rule as follows:
“[A]n action would not normally be dismissed for want of prosecution
while the relevant period of limitation was running, because the plaintiff
could, without abuse of the process of the court, issue a fresh writ within
that period.”[1665]
7.44
In other words, as a
general rule, delay prior to the expiry of the statutory limitation period,
however inordinate, cannot of itself justify dismissal for want of
prosecution. This does not mean, however, that such delay is discounted
entirely by a court when assessing a motion to dismiss. To the contrary; where
a plaintiff has delayed in commencing proceedings, it becomes essential for him
to proceed expeditiously with the prosecution of the claim. This duty of
expedition was expressed as follows by Lord Diplock in Birkett v James:-
“A late start makes it the more incumbent upon the plaintiff to proceed
with all due speed and a pace which might have been excusable if the action had
been started sooner may be inexcusable in the light of the time that has
already passed before the writ was issued.”[1666]
7.45
The decision of the
House of Lords in Birkett v James was adopted and applied by the Irish
courts in Hogan v Jones.[1667] That case involved four years’
delay prior to the commencement of proceedings, within the statutory limitation
period. The parties agreed that this delay did not fall to be taken into
account in calculating whether or not inordinate delay had occurred, but rather
was material only to the subsequent conduct of the plaintiffs.[1668]
7.46
Hogan v Jones was cited in Stevens v Paul
Flynn Ltd as authority for the following proposition:-
“[I]t
is clear that inordinate and inexcusable delay in the commencement of
proceedings is not, in itself, a factor though it may colour what happens
later.” [1669]
7.47
In Stevens,
Clarke J. affirmed that “the court is confined, in determining whether a delay
has been inordinate, to the period subsequent to the commencement of
proceedings”.[1670]
Hogan was cited in Rogers v Michelin Tyre Plc as authority for
the principle that “delay which is required to justify dismissal of an action
for want of prosecution must relate to the time which the plaintiff allows to
lapse unnecessarily after the proceedings have been commenced”.[1671]
7.48
Nevertheless, as is the
case in the UK and as was neatly stated by Barron J. in Southern Mineral Oil
v Cooney , “the
fact that the proceedings were issued in time does not write off such delay as
a factor in the event of further delay.”[1672]
In Hogan v Jones, Murphy J. adverted to the duty of expedition set out
in Birkett v James.[1673]
This lead was followed in Stevens v Paul Flynn Ltd, where Clarke J.
stated that there is a very heavy onus on a plaintiff to proceed with extra
diligence in progressing the proceedings in circumstances where the proceedings
were commenced just a few days before the expiry of the six year statutory
limitation period. In the light of that fact, he considered a delay
of 20 months in the filing of a statement of claim to be inordinate. He
noted that he would have considered such a delay to be inordinate even on the
basis of the “traditional jurisprudence” but that he would take such a view
“with even greater strength” in the light of the Supreme Court’s remarks in Gilroy.[1674]
7.49
In Wicklow County
Council v O'Reilly & Anor,
Clarke J. summarised the general rule with respect to pre-commencement
delay in the following concise fashion:-
“Firstly it is well settled that a case which is late is starting must
be proceeded with great expedition. Secondly insofar as the overall
balance of justice is concerned the court can have regard to the totality of
the delay between the date of the events giving rise to the proceedings and any
likely date of hearing.”[1675]
7.50
The House of Lords in
Birkett v James expressed the view that because Parliament has, through the
relevant limitation legislation, manifested its intention that a plaintiff has
a legal right to commence an action, the courts have no role in interfering with
that legal right in the absence of an abuse of process. [1676]
The Lords have retained this position, stating that “[t]he courts must respect
the limitation periods set by Parliament; if they are too long then it is for
Parliament to reduce them.”[1677]
7.51
This principle does not
apply in Ireland. The Irish courts have consistently stated that the fact
that an action has been commenced within the period permitted by limitations
legislation does not preclude a court from dismissing the action. In Toal
v Duignan (No. 2), the
Chief Justice concluded that “to conclude otherwise is to give to the
Oireachtas a supremacy over the courts which is inconsistent with the Constitution.”[1678] He continued as follows:-
“If the courts were to be deprived of the right to secure to a party in
litigation before them justice by dismissing against him or her a claim which
by reason of the delay in bringing it, whether culpable or not, would probably
lead to an unjust trial and an unjust result merely by reason of the fact that
the Oireachtas has provided a time limit which in the particular case has not
been breached would be to accept a legislative intervention in what is one of
the most fundamental rights and obligations of a court to do ultimate justice
between the parties before it.”[1679]
7.52
Thus, the Irish courts
will not simply defer to the Oireachtas as to the appropriate duration within
which a plaintiff may defer commencing proceedings. The courts perform,
in effect, a system of checks and balances with respect to the present or
absence of prejudice to defendants and in a number of cases, the courts have
dismissed a claim for want of prosecution based solely on delay in the
commencement of proceedings, within the statutory limitation period. Motions to
dismiss based on lengthy periods of pre-commencement delay were considered, for
example, in Toal v Duignan (No. 1)[1680] and (No.2) (23 years’
delay),[1681]
Guerin v Guerin (20
years’ delay),[1682]
Kelly v O'Leary (50
years’ delay),[1683]
and J MacH v JM(57
years’ delay).[1684]
In each of these cases, the running of the basic limitation period had been
postponed owing to the minority of the plaintiff. The motions to dismiss where,
therefore, based on delay during “limitation periods of extraordinary length”.[1685] In J MacH v JM, Peart J.
noted that a “wider discretion based on general fairness” applies to such
cases.[1686]
7.53
In Southern Mineral
Oil Ltd v Cooney,[1687]
Keane J. (as he then was) explained the rationale for the approach adopted
by the Irish courts in this series of cases, noting that actions subject to
lengthy limitation periods may not be initiated for a long period after the
events giving rise to the cause of action, perhaps running into decades.
Such periods of pre-commencement delay may be “so extreme that it would be
unjust to call upon a particular defendant to defend himself”. In the event of
such injustice, the courts must apply the constitutional guarantee of fair
procedures, and assess the inordinacy of the delay.[1688]
Keane J. observed that different considerations apply to claims to which
a standard limitation period (i.e. 6 years or less) apply, as much shorter
periods of pre-commencement delay arise and the risk of prejudice to the
defendant is much less. Keane J. reiterated that in such cases, pre-issue
delay “may not, of itself, be sufficient to justify the striking out of the
proceedings.”[1689]
7.54
The Statute of
Limitations (Amendment) Act 2000 creates a new category of ‘disability’
that postpones the running of the limitation period. Section 3 of the Act
provides a saver in relation to court's power to dismiss on ground of delay in
the following terms:
“Nothing in section 48A of the Statute of Limitations, 1957 (inserted by
section 2 of this Act), shall be construed as affecting any power of a
court to dismiss an action on the ground of there being such delay between
the accrual of the cause of action and the bringing of the action as, in the
interests of justice, would warrant its dismissal.”[1690]
7.55
It is clear from this
provision that the Oireachtas envisaged that dismissal could be based on
pre-commencement delay alone, in the context of a postponed limitation
period. The House of Lords has, by contrast, refused to recognise lengthy
limitation periods as an exceptional circumstance justifying the
dis-application of the general rule set out in Birkett v James.[1691]
7.56
In sum, therefore,
unlike their UK counterparts, the Irish courts may dismiss claims based on
lengthy delays prior to the commencement of proceedings, irrespective of the
fact that the claim was not statute-barred and that the Statute of
Limitations envisaged that a claim could be commenced during that period.
7.57
The Commission
considers that the courts’ inherent discretion to dismiss for want of want of
prosecution is an important tool through which the courts are enabled to
perform their duties under Article 6 §1 of the European Convention on Human
Rights to ensure that the determination of civil rights and obligations is
achieved promptly and within a reasonable time.
7.58
The Commission
considers that in the light of the above discussion, it is clear that the
courts’ inherent discretion to dismiss for want of prosecution is applied in
accordance with judicially-developed guidelines, and that those guidelines lend
a sufficient level of certainty to an area in which flexibility is essential to
ensure the fulfilment of the aim of the courts’ discretion, namely preventing
claims being prosecuted in circumstances in which there is undue prejudice to
the defendant.
7.59
Moreover, the
Commission considers that the continuing availability of a discretion to
dismiss even when the limitation period has not yet expired has the potential
to enhance the operation of an ultimate limitation period as there would remain
available to a defendant the option of seeking the dismissal of the claim where
the passage of time has prejudiced his defence, even if the ultimate limitation
period had not yet expired. In other words, the primary disadvantage of
introducing an ultimate limitation is allayed by virtue of the courts’
discretion to dismiss the claim in the event of prejudice; the courts would
operate as a form of final safeguard against the unjust operation of a hard and
fast ultimate limitation period.
7.60
The Commission provisionally recommends that
the proposed new legislation governing limitation of actions should include an express
statement that, without prejudice to the provisions of the legislation, the
courts may continue to exercise their inherent jurisdiction to dismiss a claim
for prejudicial delay or want of prosecution.
8
8.01
This Chapter addresses
what is variously described as the postponement, suspension, or extension of
limitation periods. The discussion is framed by the firm (although, at
present, provisional) view of the Commission that a simplified limitations
regime should be introduced to replace the outdated and unduly complex system
that applies in Ireland at present.
8.02
The conclusions drawn
in this chapter are formulated against the background of the provisional
recommendations made in the preceding chapters that a basic limitation period
should run for a period of two years from the date of knowledge of the
plaintiff and that a long-stop or ultimate limitation period of 12 years should
run parallel to the basic limitation period, starting from the date of the act
or omission giving rise to the cause of action. The central premise of this
chapter is that the various facets of the proposed limitations regime –
formulated so to as to balance the interests of the various parties – render it
unnecessary and illogical to incorporate the current postponement rules.
8.03
Prior to the enactment
of the Statute of Limitations 1957 the provisions governing postponement
were scattered in a number of different enactments. It appears that the
postponement of limitation periods was first provided for in the English Limitation
Act 1623.[1692]
The Common Law Procedure Amendment Act (Ireland) 1853 also regulated
postponement and the effect of acknowledgements and part-payments on actions on
account of specialty, upon a judgment, statute or recognizance[1693] and liabilities on simple contract.[1694]
8.04
Part III of the
Statute of Limitations 1957 currently regulates postponement.
It provides that even though the statutory limitation period has expired
according to the general rules of limitation, the plaintiff may be entitled to
commence an action by proving that the cause of action has been kept alive by
reason of any one of the following four factors: (a) the plaintiff’s “disability”;
(b) acknowledgement or part-payment by the defendant; (c) fraud or
concealment by the defendant; or (d) the consequences of a mistake.The
Commission discusses each of these factors in turn in this Chapter.
8.05
In Part B, the
Commission addresses the situation that arises when the plaintiff is deemed
incapable of managing his or her affairs or where the plaintiff is an infant on
the date of accrual or the act or omission giving rise to the cause of action.
In Part C, the continued application of the current rules governing
acknowledgments and part-payments is questioned. Part D focuses on the
merits of postponing the limitation period where the action is based on the
fraud of the defendant or is concealed by fraud, while Part E centres on the
extension of the limitation period where the plaintiff is seeking relief from
the consequences of a mistake.
8.06
It has been the case
since the early statutes of limitation that where a limitation period begins to
run at a time when the plaintiff is deemed to be ‘disabled’ in some way, the
running of the limitation period will be suspended until such time as the
plaintiff ceases to be ‘disabled’. This is because limitations law
intends to operate only when a person is in a position to commence proceedings
during the relevant period.
8.07
It is generally
accepted that the limitation period will not (or at least should not) begin to
run if the plaintiff is not in a position to make a reasonable judgment with
respect to his affairs during the period allowed and commence proceedings if
necessary. The plaintiff should be in a position to conduct
investigations, to attempt to negotiate a settlement and to give instructions
for the commencement of proceedings, if necessary. Those who are not able
to make such decisions and carry out such tasks should be protected. The
general principle in such cases has been such that the “date of accrual” test
is side-stepped.
8.08
Under the Limitation
Act 1623[1695]
and the Common Law Procedure (Ireland) Act 1853,[1696]
a plaintiff was allowed six years from the date on which he or she ceased to be
under a ‘disability’ within which to commence an action. ‘Disability’
covered situations where the plaintiff was, at the date of accrual, under the
age of 21, a married woman, a person “of unsound mind” or a person “beyond the
seas”.[1697]
There have been significant developments in the area of postponement since that
time.
8.09
The disability of
coverture (i.e. the position of a married woman under her husband's protection)
was described in 1849 as “the simple consequence of that sole authority which
the law has recognised in the husband, subject to judicial interference
whenever he transgresses its proper limits.”[1698]
The following view elucidates the thinking of that time:-
“In that variety of wills with which human nature is ordinarily
constituted, it is absolutely necessary for the preservation of peace, that
where two or more persons are destined to pass their lives together, one should
be endued with such a pre-eminence as may prevent or terminate all
contestation. And why is this pre-eminence exclusively vested in man? Simply,
because he is the stronger. […] Nor is this the only reason: it is always probable
that man, by his education and manner of life, has acquired more experience,
more aptitude for life, and a greater depth of judgment than the woman.”[1699]
8.10
Coverture ceased to be
a ‘disability’ for limitation purposes as a result of the Married Women's
Property Act 1882.[1700] The absence of the plaintiff
beyond the seas also ceased to be recognised as a disability as a result of the
Mercantile Law Amendment Act 1856.[1701]
Imprisonment was considered a ‘disability’ for limitation purposes until it,
too, was abolished as such by the Mercantile Law Amendment Act 1856.[1702] The Forfeiture Act
1870[1703]
provided that persons convicted of treason or felony and sentenced to death or
penal servitude were ‘disabled’ for limitation purposes unless they were
lawfully at large under licence or unless an administrator or curator of their
property has been appointed.[1704]
8.11
Sections 48 and 49 of
the Statute of Limitations 1957 replaced the disability provisions of
the Common Law Procedure (Ireland) Act 1853.[1705]
The Statute abolished the ‘disability’ of absence beyond the seas.
It was considered that this provision was of little practical value, given that
defendants can now be served with legal proceedings while outside of the
jurisdiction. Absence “beyond the seas” had also given rise to
difficulties of legal interpretation.[1706]
The Statute repealed parts of section 19 of the Moneylenders
Act 1933[1707]
which specifically regulated absence beyond the seas.[1708]
8.12
Under section 48 of the
Statute the following persons are considered to be under a ‘disability’
for the purposes of limitation:[1709]
(1)
Infants, that is,
persons under 18 years of age;
(2)
“Persons of unsound
mind”, which is in any event an inappropriate term that should now take account
of proposals to reform the law on mental capacity; and
(3)
“Convicts,” an obsolete
term used in the Forfeiture Act 1870 (since repealed) to describe
certain categories of prisoners.
8.13
Before
discussing each of these three categories of persons in this Part, the
Commission discusses the general approach of current limitations law to the
issue of “disability.”
8.14
As a preliminary point
the Commission reiterates its previous recommendation that the term
“disability” is no longer an appropriate term to use in a revised, modern
limitations regime. [1710]
8.15
The Commission provisionally recommends that
the term ‘disability’ should not form part of a revised, modern limitations
regime.
8.16
At present, the general
rule is that where a plaintiff is under a legal “disability” on the date of
accrual or the date of knowledge of the cause of action, the running of the
limitation period will be postponed and will commence only when the plaintiff
ceases to be under a disability or dies, whichever occurs first. The term
‘postponement’ is something of a misnomer because the effect is not that the
running of the relevant limitation period is postponed; rather, for the great
majority of actions, the plaintiff will have six years running from that date
within which to commence his or her action.[1711]
For example, where the plaintiff is a child on the date of accrual, the
limitation period is suspended until her 18th birthday and will run from that
date for six years. She will therefore have until the day before her 24th
birthday to commence proceeding. Where a person falls into a coma as a
result of an accident, the running of the limitation period is suspended until
the date on which he or she emerges from the coma and the limitation period
will run for six years from that date.
8.17
The general six-year
post-disability limitation period does not apply in a number of situations: a
two-year post-disability limitation period applies in the case of personal
injuries and wrongful death actions[1712]
and actions brought under section 13(7) of the Sale of Goods and Supply of
Services Act 1980.[1713]
A three-year post-disability limitation period applies to actions seeking
compensation for malicious injuries.[1714]
A three-year post-disability limitation period also applies to actions for
damages for slander,[1715]
but an amendment to this rule is currently being debated in the Houses of the
Oireachtas. A two-year post-disability limitation period applies to
actions to recover a penalty or forfeiture or a sum by way of penalty or
forfeiture, recoverable by virtue of any enactment.[1716]
These shorter post-disability limitation periods are, in effect, exceptions to
an exception. They have developed in a piecemeal fashion and without
cohesion or consistency. It is the view of the Commission that they serve
only to create confusion in the already complex area of limitation, which
should be clear and comprehensible insofar as that is possible.
8.18
A further exception
applies with respect to actions against the estate of a deceased person.
Until the Civil Liability 1961 came into force, infants could
wait until the expiry of the relevant limitation period, running from the age
of majority, to commence a claim against the estate of a deceased person.
The repercussions were set out by the Supreme Court in Moynihan v Greensmyth:[1717]
“This could mean that the administration of an estate might be greatly
delayed or, alternatively, that after many years those entitled on a death
might be subjected to a claim for damages of which there had been no prior
notice. Obviously in such circumstances severe hardship might be caused and
injustice done to innocent people.”
8.19
Section 9 of the Civil
Liability Act 1961 was enacted with a view to remedying any potential
injustice. It provides that actions against the estate of a
deceased person are subject to a fixed limitation period of two years, running
from the date of death. This period cannot be extended in the event of
disability. The constitutionality of this strict limitation period was
upheld by the Supreme Court in Moynihan v Greensmyth[1718],
which bore in mind “the State's duty to others—in particular those who
represent the estate of the deceased, and beneficiaries”.[1719]
8.20
There is one further
exception - certain land-related actions are currently subject to an ultimate
limitation period of 30 years’ duration running from the date of accrual.
These actions cannot be commenced after that thirty year period expires, even
if the plaintiff remains under a “disability”.[1720]
8.21
There are also a number
of restrictions on the application of the disability provisions of the Statute.
The running of the limitation period is not postponed where the right of
action accrues to a person (not under a disability) through whom the person
under a disability claims.[1721]
Additionally, where a right of action which has accrued to a ‘disabled’ person
accrues on the death of that person to another ‘disabled’ person, no
postponement occurs by reason of the disability of the second person.[1722]
8.22
The Commission’s
proposed new limitations regime would incorporate a basic limitation period of
two years running from the plaintiff’s date of knowledge and an ultimate
limitation period of twelve years running from the date of the act or omission
giving rise to the cause of action. The provisional recommendations made
in the preceding chapters are formulated so as to ensure maximum fairness to
the plaintiff and the defendant as well as to society as a whole. In this
context the Commission questions the need to make provision for the
postponement of either the basic or the ultimate limitation period.
8.23
The Commission
therefore turns now to discuss the merits of retaining postponement provisions
in a new limitations regime, in the specific context of the plaintiff’s
inability to manage his or her own affairs whether by way of infancy or otherwise.
8.24
Section 48(1)(b) and
section 49 of the Statute of Limitations 1957 make allowances for
plaintiffs who are incapable of managing their own affairs by providing for the
‘extension’ of the limitation period where the plaintiff is “of unsound
mind”. Section 48(2) of the Statute is singularly unhelpful
as to who is afforded protection under these rules, providing only the
following antiquated example, without prejudice to the generality of the
phrase:
“a person shall be conclusively presumed to be of unsound mind while he
is detained in pursuance of any enactment authorising the detention of persons
of unsound mind or criminal lunatics.”[1723]
8.25
Section 48(1) (b) has
been given a particularly narrow construction and is now understood to
encompass only such persons who are, by reason of mental illness, not capable
of managing their own affairs.[1724]
It has been suggested that such matters as capacity to instruct a solicitor
properly or to exercise reasonably judgment on a possible settlement may
indicate whether or not a person is of unsound mind.[1725]
8.26
The Commission has
previously[1726]
expressed its dissatisfaction with the concept of ‘unsoundness of mind’ and
again stresses that, like the concept of ‘disability’, this antiquated concept
is entirely inappropriate today. In addition, the concept is problematic
because it excludes from its protection certain categories of person who are no
less deserving of protection than those who fall within its remit. For
example, persons who are unconscious or in a coma, or those who suffer from
very severe physical incapacity, may fall outside of the protection of section
48(1) (b).[1727]
The Commission has previously recommended the widening of the concept to
persons who are incapable of the management of their affairs “because of
disease or impairment of physical or mental condition”.[1728]
8.27
The Commission’s
previous recommendations were made in the context of a review of the current
limitations regime. In the context of a proposed new regime, however, the
Commission now faces the broader question of whether there is any continued
justification for rules allowing for postponement of the limitation period
where a person is incapable of managing his or her affairs.
8.28
The Commission is
concerned that the effect of the current postponement rules is that where the
plaintiff is incapacitated, the defendant is open to claims for an indefinite
period of time. The problem is particularly acute where, for example, the
plaintiff suffers from an incurable or open-ended illness. In such cases
there is no natural term to the plaintiff’s incapacity and no necessary end to
the postponement of the limitation period.[1729]
Difficulties created by such an indefinite postponement include a heightened
risk that the evidence will have deteriorated with the consequent danger of an
unfair trial, and increased insurance costs with extra costs passed on to the
consumer.[1730]
8.29
The potential for
injustice in such cases is illustrated by the scenario in which a car crash
caused by the negligence of the potential defendant causes an adult to suffer a
form of intellectual impairment which has the potential to be cured but only
after sustained medical treatment. In such a case, the potential
defendant is left waiting and wondering when, if ever, the injured party will
regain the capacity to commence proceedings. As was succinctly noted by
the British Columbia Law Institute in 2002:
“Suspension provisions that are not subject to a cap significantly
weaken the limitations system as defendants would never know if and when claims
might be brought in favour of a person under a disability. This creates a
great deal of uncertainty for defendants.”[1731]
8.30
The potential injustice
implied by such a situation is mitigated to a degree by the possibility that an
action commenced after such a long delay could be dismissed for want of
prosecution even though it was not statute-barred, if the defendant is
prejudiced by the delay. The courts’ inherent power to dismiss in the
event of an inordinate and inexcusable delay is a discretionary jurisdiction,
however, and does little for legal certainty, less still for the defendant
during the long years waiting and wondering if proceedings will issue.
8.31
Bearing these
difficulties in mind, the Commission has looked carefully at the consequences
of the proposed introduction of a general discoverability / date of knowledge
test governing the running of the basic limitation period and is satisfied that
such a test would render nugatory any provision allowing for the postponement
of the basic limitation period in the event of a person’s inability to manage
his or her own affairs as the plaintiff’s state of mind and capacity to bring
proceedings impact upon the date of knowledge.
8.32
This does not remedy
the possibility of open-ended liability for defendants, however. In the
circumstances the Commission has given consideration to the question of whether
or not the ultimate limitation period should run unaffected by the plaintiff’s
inability to manage his or her affairs.
8.33
The Commission is keen
to ensure that there are as few exceptions as possible to the proposed ultimate
limitation period which is formulated so as to ensure maximum certainty and
fairness to defendants and to be easily understood and applied. The
Commission is of the view that the incapacity of the plaintiff should not be
allowed to postpone the running of the ultimate limitation period
indefinitely. Fairness to plaintiffs must, of course, not be sacrificed
to that end but the Commission is satisfied that sufficient protection will be
available to plaintiffs provided that recent developments in the areas of
guardianship and capacity, outlined below, are brought to fruition. These
developments envisage a co-ordinated system whereby persons who are incapable
of managing their own affairs would be protected by a guardian. Indeed, in that
respect, the Commission notes that there are good reasons for supporting the
approach that plaintiffs may benefit from bringing proceedings as early as
possible, subject to suitable safeguards.
8.34
Significant
developments have recently occurred in the law of mental capacity and
guardianship, arising from the Commission’s Report
on Vulnerable Adults and the Law (2006).[1732] The Commission made extensive recommendations on
determining when a person has the legal capacity to make a wide range of
decisions. The Commission recommended that there should be a clear
presumption that all persons who have reached the age of majority, 18 years of
age, have capacity.[1733] The Commission recommended the introduction
of a broad statutory definition of capacity focusing on functional cognitive
ability to understand the nature and consequences of a decision in the context
of available choices at the time the decision is to be made.[1734]
8.35
In 2008 the Government
published the Scheme of a Mental Capacity Bill 2008, which is in
line with the Commission’s recommendations on capacity.[1735] The Government has indicated that a Mental
Capacity Bill, based on the 2008 Scheme, will be published in late 2009.[1736]
8.36
Significant
developments have also been seen in the area of the law concerning the general
legislative framework to assist those whose mental capacity is reducing or who
have lost mental capacity. In the 2006 Report on Vulnerable Adults and the
Law, the Commission recommended that a new legislative framework, to
be called guardianship, should be established. At present, adults may be
made wards of court in certain circumstances[1737]
but this is a completely outmoded system, regulated by the Lunacy Regulation
(Ireland) Act 1871,[1738] in which decision-making is completely
removed from an individual in an “all-or-nothing” approach. The wards of
court system does not, for example, take account of situations where assisted
decision-making would be more appropriate for a person whose capacity is
gradually diminishing over time rather than completely absent through acquired
brain injury. In addition, the 1871 Act is also based on 19th
century concepts of paternalism rather than contemporary views of capacity. On
that basis, In its 2006 Report on Vulnerable Adults and the Law,[1739]
the Commission proposed the introduction of a procedure by which a personal
guardian could be appointed to assist in managing the affairs of an adult whose
capacity is limited or who has lost some or all mental capacity, and where the
role of the personal guardian would be tailored to the specific situation and
condition of the individual involved.
8.37
The 2006 Report
envisaged that a Personal Guardian would either assist in, or as appropriate
actually make, decisions concerning the property, financial affairs and
personal welfare of a person. The appointment would be made by way of a
guardianship order and the Commission observed that the guardianship order
could involve the personal guardian in a wide range of matters, including ”the
conduct of legal proceedings in the adult’s name.”[1740]
8.38
The Commission also
recommended the establishment of an Office of the Public Guardian (OPG) which
would oversee and supervise personal guardians The proposed OPG
would also play a wide-ranging advice, support and educational role for
vulnerable people and their families.
8.39
The Government’s draft
Scheme of a Mental Capacity Bill 2008, discussed above, proposes to
implement these recommendations. The Scheme proposes to replace the Lunacy
Regulation (Ireland) Act 1871 (subject to necessary transitional
arrangements) and to provide for the appointment of personal guardians. Under
the Scheme of the Bill, personal guardians could be authorised to take
proceedings on behalf of the person in respect of whom they act as guardian.
The Scheme also proposes to establish an Office of the Public Guardian to
supervise personal guardians. The OPG would also be empowered to act as a
personal guardian of last resort in the event that there is no person willing
or able to act as a personal guardian.[1741]
8.40
The Commission is of
the view that the proposed guardianship system has the potential to afford a
suitable level of protection if the current rules governing postponement in the
event of adult incapacity were not incorporated into a new limitations regime.
8.41
The Law Commission for
England and Wales has proposed that, in general, the absence of adult capacity
should not affect the running of the ultimate limitation period. The Law
Commission was of the view that in most cases a person without capacity over
more than a short period of time will be in the care of an adult who is able to
act on his or her behalf.
8.42
The Law Commission’s
recommendations must be viewed in the context of the parallel recommendation
that the ultimate limitation period should not apply at all in personal
injuries cases.[1742]
It made a special recommendation in respect of an incapacitated plaintiff who
has suffered personal injury and is in the care of a responsible adult ten
years after the onset of the disability and the date of the act or omission
giving rise to the claim. In such a scenario, the primary limitation
period be deemed to run from the date of knowledge of the adult in whose care
the incapacitated plaintiff remains. This does not apply however, where
the responsible adult is a defendant to the claim. The Law Commission
recommended that the “representative adult” be the member of the plaintiff’s
family who is responsible for his or her day-to-day care or another person authorised
to conduct proceedings in the name of the claimant.
8.43
The Scottish Law
Commission has also made recommendations as to the running of the limitation
period in the event of adult incapacity.[1743]
It noted that because a guardian appointed under the Adults with Incapacity (Scotland) Act 2000[1744] is subject to a
measure of supervision by the Public Guardian, it might be though that the
guardian would act promptly in bringing the claim for damages and that a
specific provision starting the running of time would no longer be
necessary. The Scottish Commission recorded that its advisory group
reported that past experience indicated that if the equivalent of a personal
guardian was appointed to a person who lacked mental capacity, proceedings
were normally instituted.[1745] The Scottish Commission noted that the
opinions of those consulted were divided on the guardianship issue, with some
expressing concern about the risk of a guardian missing the limitation
period. It noted that guardians may be appointed in a wide range of
situations and some may have no knowledge of a claim and may be reliant on the
ability of the incapax to communicate which might lead to
injustice. The Commission acknowledged that there were significant
arguments on both sides but on balance concluded that the appointment of a
guardian should not lift the suspension of the limitation period.
In reaching that conclusion it stated that
“It
was not suggested to us that the present law in this area operates in an
unsatisfactory manner; that of itself tends to suggest that change is
unnecessary.”[1746]
8.44
The British Columbia
Law Institute (BCLI) made proposals in 2002 for the postponement of the
ultimate limitation period in the event of adult disability.[1747] The BCLI recommended that the
proposed 10-year ultimate limitation period of general application should apply
irrespective of the plaintiff’s disability.[1748]
It noted that protection is available to the adult who is under a legal
disability who has a representative appointed under a power of attorney or a
representation agreement. The representative will, it observed, typically be
responsible for managing the affairs of the incapacitated adult, including
bringing a law suit on his or her behalf if necessary. The BCLI noted
that under the existing legislation, the running of time would be subject to
the requirement that the defendant deliver a “notice to proceed” to the
disabled person’s guardian and to the Public Guardian and Trustee. It
will be noted that the Commission reached the view in 2001 that “notice to
proceed” provisions do not really solve any problems because the onus is on the
defendant to trigger the limitation period and a defendant is unlikely to want
to do that as it may encourage a plaintiff or his guardians to take an action
against him or her.[1749]
8.45
The Commission provisionally recommends that,
in light of the proposal in the Government’s Scheme of a Mental Capacity Bill
2008 to establish a new guardianship system for adults whose mental capacity is
limited or who lack mental capacity, the proposed limitations regime should not
allow for any exception to the running of either the basic or the ultimate
limitation period in the event that the plaintiff is an adult whose mental
capacity is limited or who lacks mental capacity.
8.46
The Common Law
Procedure (Ireland) Act 1853 provided that if the plaintiff was under 21
years of age at the time of the accrual of a right of action, he or she could
bring the action within six years after reaching the age of 21.[1750] The motivation behind this
principle was expressed in 1849 as being to prevent as far as possible “the
evils which would arise from the imbecility and inexperience to which every man
is subject on his entrance into the world”.[1751]
A more modern view is that the postponement of the limitation period until the
age of majority prevents disputes between the parties as to the age at which
the minor could properly ‘know’ the relevant facts and make informed and
reasonable decisions with respect to his or her person and property.[1752]
8.47
The 1853 Act applied in
Ireland until the Statute of Limitations 1957 came into force. As
enacted, the Statute provided that an action could be brought at
any time before the expiration of the relevant limitation period, running from
the date on which the plaintiff reached the age of 21 years.[1753] This was reduced to 18 years of
age under the Age of Majority Act 1985.[1754] The general rule now is that
where the plaintiff is under the age of 18 years on the date of accrual or the
date of knowledge, the running of the limitation period is postponed and will
run for six years from the plaintiff’s 18th birthday. This
means that in the great majority of cases a plaintiff has until his or her 24th
birthday to commence proceedings.
8.48
The Commission is
concerned that the postponement provisions currently protecting infant
plaintiffs have the potential to engender injustice and create a substantial
risk of an unfair trial. That risk is illustrated by the following
example: a little girl (the plaintiff) suffers personal injuries by tripping in
a supermarket on her first birthday. Under the current rules, a two year
limitation period will apply but it will not begin to run until the plaintiff’s
eighteenth birthday. The plaintiff will therefore have until the day
before her 20th birthday to commence proceedings against the party
whose negligence led to her injuries. Thus, the Statute would
allow her some nineteen years before she is statute-barred. It is trite
to suggest that with such a lapse of time there must be serious questions as to
whether a defendant can be ensured a fair opportunity to present an effective
defence. It is little consolation to the defendant that the potential for
injustice is less acute than if the limitation period were to be postponed by
the plaintiff’s incapacity - this is because minority has a natural end and a
set duration and, provided that he or she knows the child’s date of birth, the
defendant will know with certainty when the child will be deemed to have
capacity and when the ultimate limitation period will begin to run against him
or her.
8.49
The Commission is
mindful that its recommendations must achieve a delicate balance between
ensuring fairness to the defendant and allowing sufficient protection for the
plaintiff. Bearing this in mind, the Commission recommended in 2001 that
the running of the limitation period should not be postponed unless the infant
plaintiff can show that at the time of the incapacity, he was not in the
custody of a parent or guardian.[1755]
This recommendation was made with a view to ensuring the maximum fairness to
the defendant and to minimising delays.
8.50
The Commission remains
of the view that an infant plaintiff who is in the custody of a competent
parent or guardian does not require the level of protection currently afforded
to him by the Statute. The experience of the Commission is that in
the great majority of cases, an infant plaintiff will have a parent or guardian
who is capable of acting as the child’s next friend and that in most cases, the
parent or guardian will commence proceedings promptly on behalf of the child.[1756] The Commission does not consider
it unjustified to assume that the interests of minors are for the most part
looked after by their parents or guardians. In the light of that
experience the Commission considers that as they stand, the disability
provisions over-protect the infant plaintiff, potentially at the expense of the
defendant, even when the infant plaintiff has n adult representative who is
fully aware of the relevant facts.[1757]
8.51
The Commission is of
the view that to reduce the protection afforded to infant plaintiffs who are in
the custody or care of a competent parent or guardian would be a proportionate
measure towards safeguarding the defendant’s rights. In addition it would
have the corollary effect of reducing the need to invoke the inherent
jurisdiction of the courts to dismiss for want of prosecution during the running
of the limitation period and the lack of certainty that is intrinsic to the
exercise of that jurisdiction.
8.52
The Commission provisionally recommends that
the proposed limitations regime should not allow for any exception to the
running of either the basic or the ultimate limitation period in the event that
the plaintiff is a under the age of 18 and is in the custody of a competent
parent or guardian who is conscious of his or her responsibilities and is
capable of commencing proceedings on behalf of the plaintiff.
8.53
The Commission
acknowledges that there are a number of scenarios in which there is potential
for an injustice to be caused to an infant plaintiff if a new limitations
regime does not afford the same protection as the current postponement
provisions.
8.54
One of the key
difficulties is illustrated by the decision of the Supreme Court in O’Brien
v Keogh[1758],
which held that an analogous provision dealing with a person
under the age of 18 (section 49(2)(a)(ii) of the Statute of Limitations 1957,
as enacted) was unconstitutional.[1759]
Under that provision, infant plaintiffs who were in the custody of their
parents at the date of accrual of certain causes of action were subject to the
limitation period appropriate to an adult while infants who were not in the
custody of their parents at that time had until their infancy ceased and the
appropriate adult limitation period thereafter. In O'Brien v
Keogh the infant plaintiff (suing through his mother) sought to
bring proceedings against his father but was statute-barred because he was in
the custody of his mother on the date of accrual. Giving the judgment of
the Supreme Court, Ó Dálaigh CJ held that although the Statute did not
contravene the guarantee of equality contained in section 40.1 of the
Constitution, it failed to respect, defend, protect and vindicate the right to
sue for personal injuries, which is one of the personal rights of a citizen
protected by Article 40.3.[1760]
The Supreme Court had particular difficulty with the fact that the test was
whether the infant plaintiff was in the custody of his parents at the date
of accrual. This meant that if a family was in a car accident, resulting in
the death of both parents, the limitation period would run as normal against
the children as they were in their parents’ custody at the time of accrual,
even though they might be in a public-welfare institution. Ó Dálaigh CJ also
noted the scenario of a child who wishes to take an action against one of his
parents (e.g. for personal injuries sustained as a result of negligent
driving). In such cases, the child would have been in the custody of his
or her parent at the date of accrual of the cause of action and the limitation
period would run as normal against the child, irrespective of the child’s age
or current family circumstances. The Supreme Court noted that both of
these scenarios are “of too frequent occurrence.”[1761]
8.55
Following O’Brien
v Keogh, the custody provision ceased to be part of the law of limitations
and the postponement provisions were restored without qualification to all
infants.[1762] The custody provision was repealed in its entirety by the Statute
of Limitations (Amendment) Act 1991.[1763]
A similar custody provision in the English Limitation Act 1939 was also
removed after it was found to have a number of defects. Like the Supreme
Court in Ireland, in 1974 the English Law Reform Committee questioned that the
basic assumption underlying the rule, namely that where the minor is in the
charge of a competent adult, that adult can be trusted to seek legal advice
and, if appropriate, to institute legal proceedings on his behalf. The
Committee recommended the repeal of the provision, and this was done by section
2 of the English Limitation Act 1975.[1764]
8.56
Further difficulties
arise in the case of an infant plaintiff as a by-product of the provisional
recommendation of a 12-year ultimate limitation period running from the date of
the act or omission giving rise to the cause of action. If, for example,
a child suffered personal injuries at birth and the ultimate limitation period
was to run unaffected by the child’s minority, the child’s action could be
statute-barred by her twelfth birthday even if during that time she was not in
the custody of a parent or guardian capable of commencing proceedings on her
behalf. This is a clear example of the infant plaintiff being
under-protected. The opposing arguments in this regard have been
paraphrased as follows by the Law Commission for England and Wales:-
“It could be said that it is unduly harsh for the minor to lose his or
her cause of action before he or she is regarded as having the capacity fully
to understand it, and to bring proceedings on his or her own behalf. The
opposing argument is that there is an interest in preventing claims in respect
of stale claim, regardless of the identity of the claimant.”[1765]
8.57
The Commission also
acknowledges that while it is reasonable to assume that the parent or guardian
of an infant will act in his or her best interests, this is not always borne
out in reality. The parent or guardian may fail to act in the child’s
best interest for many reasons, whether as a result of financial difficulties,
a conflict of interests, apathy or ignorance. If, for example, the potential
defendant was the guardian or the parent or a close family member or friend,
the parent or guardian might not be able or willing to take the case in the
child’s name. The Commission is concerned that, provided that the
defendant is not prejudiced by the lapse of time, a child should not be forced
to forfeit his or her legal rights as a result of the unwillingness or
inability of the parent or guardian to pursue those rights on the child’s
behalf.
8.58
The introduction of a
12-year ultimate limitation period has been conceived in the interests of
certainty, finality and fairness to the defendant. The Commission
acknowledges however that it has the potential to create unfairness is a small
number of cases. On the one hand the Commission is mindful of the
imperative to ensure fairness to the defendant and to minimise delays wherever
possible, while on the other it is cognisant of ensuring that vulnerable
persons such as minors and incapacitated adults are protected where such
protection is necessary. The Commission does not seek to recommend any
revision of the law which would have the effect of penalising those who are
vulnerable in our society. With that in mind, the Commission is anxious to
find a workable solution which would ensure that an appropriate level of
protection would be available to the those who are deserving of it.
8.59
As the Commission
observed in 2001, the Supreme Court decision in O’Brien v Keogh[1766] was primarily centred on the
difficulty that arises where it is the plaintiff’s parent or guardian who is
the potential defendant. In 2001, the Commission recommended that this
difficulty could be avoided by providing that the limitation period could be
postponed while the claimant is taking an action against his or her parent or
guardian.[1767]
The Commission noted that section 5(2) of the Alberta Limitations Act provides
for such a scenario.[1768]
That sub-section was introduced in 2002 after the Alberta Institute
expressed its concerns about the situation where a parent or guardian allows a
limitation period to expire without bringing a claim, to the serious prejudice
of the infant.[1769]
Section 5 allows for the running of the limitation period against a minor
plaintiff who is in the custody of a guardian in certain circumstances and subject
to the approval of the Public Trustee, who makes inquiries into the guardian’s
ability and intention to act in the plaintiff’s best interest. Section 5
provides, however, that in no circumstances will the limitation period run
against a minor plaintiff where the guardian is the potential defendant or
where the claim is based on conduct of a sexual nature, including but not
limited to sexual assault.[1770] A similar exclusionary provision is in force in Western Australia
where the Limitation
of Actions Act 2005)[1771]
provides that no limitation period will run against a minor plaintiff who is
without a guardian while the limitation period is running where the minor
plaintiff is in a “close relationship”[1772]
with the defendant or where it was unreasonable for the guardian not to
commence the action on time. This is designed to ensure that the defendant is
unable to avoid being sued by pressurising the plaintiff not to bring
proceedings, or ensuring that the plaintiff does not have knowledge of the
facts essential to the formation of a cause of action.[1773]
8.60
The Commission
acknowledges that there is some merit in legislating for the situation where
the infant plaintiff is in a familial or close personal relationship with the
defendant. The Commission is, however, mindful that the proposed limitations
regime is intended to be streamlined, simplified and of general application,
and that it should have as few exceptional rules as possible. For that
reason the Commission does not favour the introduction of a complex or
elaborate system such as those in place in Alberta or Western Australia.
The Commission also notes that no system of independent checks and balances
such as that which is in place in Alberta is available in Ireland and there are
no plans to put such infrastructure in place.
8.61
An alternative solution
was proposed by the Law Commission for England and Wales in 2001. Having
considered a number of options it recommended the introduction of a clause to
the following effect:-
“[A]ny long-stop limitation period shall run but not so as
to bar a claim before the claimant has reached the age of 21.” [1774]
8.62
The Commission
acknowledges that the introduction of such a clause would allow a minor a
reasonable chance to bring proceedings on reaching majority. Nonetheless
the Commission considers that it runs the risk of over-protecting the great
majority of infant plaintiffs who are in the custody of a parent or guardian
who is capable of commencing proceedings promptly on behalf of the
plaintiff. It is also inconsistent with the Commission’s goal of
formulating a simplified limitations regime consisting of a minimum number of
different limitation periods and rules governing their general application.
8.63
A further option would
be to allow for a narrow, residual discretion on the part of the courts to
allow for proceedings to be commenced in exceptional circumstances even where
the plaintiff is statute-barred by reason of the expiry of the ultimate limitation
period. This would in effect be a reverse of the courts’ present inherent
jurisdiction to dismiss for want of prosecution, and would be expressly subject
to the interests of justice being served. Although the Commission does
not consider that an exhaustive list of the situations in which “exceptional
circumstances” arise would serve the purpose of allowing for a residual
discretion, it is helpful to consider some examples. One might be where
the infant plaintiff was not in the custody of a competent parent or guardian
during the time allowed for proceedings to be commenced. Another might
arise where the infant plaintiff’s cause of action is against the parent or
guardian in whose custody or guardianship he was during the time allowed for
proceedings to be commenced. A further scenario might be where the
plaintiff’s parent or guardian was either negligent or unreasonable in failing
to commence proceedings on behalf of the child before the limitation period
expired. Alternatively the residual discretion could be exercised where
it is shown on the balance of probabilities that the infant plaintiff and / or
his parent or guardian was in a close familial or personal relationship with
the defendant such that there was pressure – whether conscious or otherwise –
to refrain from commencing of proceedings.
8.64
The Commission
considers that the residual discretion could also be exercisable if the
proposed new guardianship regime envisaged in the draft Scheme of a Mental
Capacity Bill 2008 does not result in a sufficient basis for an adult
plaintiff who is deemed unable to manage his affairs to have a guardian
appointed to him who is both willing and capable to institute or defend
proceedings on his behalf.
8.65
The Commission provisionally recommends the
introduction of a residual discretion on the part of the courts, exercisable in
exceptional cases and subject to the interests of justice, to allow proceedings
to be commenced by a plaintiff who had not reached the age of 18 before the
expiry of the ultimate limitation period.
8.66
The Commission
notes that the Statute of Limitations 1957 provides that the running of
the limitation period is postponed in respect of ‘convicts’ who are subject to
operation of the Forfeiture Act 1870,[1775]
and in respect of whom no administration or curator has been appointed.[1776] Section 8 of the 1870 Act
prevented persons “convicts”, those convicted of treason or felony and
sentenced to death or penal servitude from bringing any action unless they are
lawfully at large under licence or unless an administrator or curator of their
property has been appointed.[1777]
The Forfeiture Act 1870 was repealed by the Criminal Law Act 1997,[1778]
which abolished the concepts of felonies and misdemeanours. As a result, the
reference to the 1870 Act in the Statute of Limitations 1957 is
obsolete. In 2001 the Commission recommended that section 48(1)(c) should
be removed from the Statute[1779]
and the Commission reiterates that proposal here. Because a person who is
imprisoned on conviction does not lose any rights, other than the right to
liberty, the Commission provisionally recommends that a new limitations regime
should not contain any provision for postponement where the plaintiff is a
convicted prisoner.
8.67
The Commission provisionally recommends that a
new limitations regime should not contain any provision for postponement where
the plaintiff is a convicted prisoner.
8.68
Sections 50 to 60 of
the Statute of Limitations 1957 govern the impact of acknowledgements on
the running of limitation periods while sections 61 to 70 govern the impact of
part payments. The general rule is that even if a cause of action has
already accrued, it will be deemed to have accrued afresh on the date of an
acknowledgment or part payment by the defendant. Thus, the part payment
or acknowledgment in effect restarts the running of the limitation period.[1780] This will occur, however, only
in respect of specified actions and subject to the formal requirements set out
in the Statute.
8.69
For the most part, the Statute
of Limitations 1957 simply consolidated the law
as to the effect of an acknowledgment in the different classes of case where it
could arise when the Statute was drafted. The principles governing
acknowledgment have their origins in the doctrine that a right of action upon a
simple contract debt might be revived by acknowledgment, a doctrine that
appears to have been a judicial creation.[1781] The
doctrine first received statutory recognition in the Statute of Frauds
Amendment Act 1828[1782] which provided that only an acknowledgment in writing
should take the action out of the Statute. An acknowledgment by an
agent was rendered as effective as an acknowledgment made by his principal by
the Mercantile Law Amendment Act 1856.[1783] Thereafter
it was decided by case-law that an acknowledgment could only revive a debt if
it contained a fresh promise to pay, whether express or implied. That
principle applied until 1959 in relation to simple contract debts[1784] but it does not apply under the Statute of Limitations
1957.
8.70
Section 23 of the
Common Law Procedure Amendment Act (Ireland) 1853[1785]
provided that an action upon a specialty debt may be brought within twenty
years after an acknowledgment has been made. There was no requirement of
a fresh promise to pay in that context – just an admission that the debt was
due. That principle applied in the case of actions to recover land or
money charged thereon, under the Real Property Limitation Acts.[1786] The principle was adopted in the
Statute of Limitations 1957 for all debts, doing away with the
requirement to make a fresh promise to pay.
8.71
Under the current Statute,
the acknowledgement by the defendant of a debt owed to the plaintiff may
re-start the running of the limitation period. One reason behind this
rule is that the purpose of limitations law is to prevent a stale claim
progressing through the courts in the event as the lapse of time makes it
difficult for the defendant to prove that a debt had not been incurred or had
been satisfied. The difficulty for the defendant - and the consequent
need for the protection of limitations law - is greatly reduced where it can be
shown that the defendant acknowledged the debt or made a part payment of it.[1787] The acknowledgement is therefore
seen to keep the action alive. There is an element of estoppel involved -
it is thought that if the debtor has promised to pay a debt, the creditor
should be permitted to rely on this new promise without bringing an action for
a renewed limitation period.[1788]
8.72
The Statute does
not define an “acknowledgment” but it sets out certain formal requirements
which must be met in order for an acknowledgment to restart the limitation
period - it must be made in writing and signed by the acknowledgor.[1789] It may be made by the
agent of the person by whom the acknowledgement is required to be made, and to
the person or the agent of the person whose title, right, equity of
redemption or claim is being acknowledged.[1790]
An acknowledgment made by or to a stranger is of no effect.[1791]
There is no requirement that the plaintiff show either an express or implied
promise to pay; there must only be an acknowledgment of a debt or other
liquidated amount.[1792]
It is therefore sufficient for the defendant to have written to the plaintiff
stating that he or she would never pay the said amount. One qualification
is that the defendant must quantify the debt in figures or in such a way that
the amount is ascertainable by calculation or by extrinsic evidence without
further agreement by the parties. If the debt
is not quantified or ascertainable without further agreement, the
acknowledgment is insufficient for the purposes of the Statute.[1793]
8.73
The current rules
governing acknowledgments apply only to certain actions - actions to recover
land (section 51 of the Statute); actions by mortgagees to recover land
(section 52); actions by mortgagees claiming sale of land (section 53); actions
by mortgagors to redeem land (section 54); actions in respect of private rights
in or over land (section 55); actions to recover debt (section 56); actions to
recover mortgage debt (section 56(2)) and actions claiming a share or interest
in the personal estate of a deceased person (section 57).
8.74
A part payment is a
form of acknowledgment where the right of action is in respect of a debt and
the acknowledgment takes the form of conduct rather than words. The law is
more or less the same as that of acknowledgment.[1794] The payment may be made by
the agent of a person liable and to the agent of the person in respect
of whose claim the payment is being made.[1795]
There is no requirement of an express or implied promise to pay. No
endorsement or memorandum of any payment written upon any bill of exchange or
promissory note on behalf of the party to whom such payment is made will be
considered to be evidence of a part payment for the purposes of the Statute.[1796]
Specific rules govern the appropriation of a part payment where a number of
debts exist.[1797]
8.75
The current rules
applicable to part payments apply only to certain actions - actions by
mortgagees to recover land (section 62); actions by mortgagees claiming sale of
land (section 63); actions by mortgagors to redeem land
(section 64); actions to recover debt (section 65);
and actions claiming a share or interest in the personal estate of a deceased
person (section 66).
8.76
The Commission
acknowledges that the rules governing acknowledgments and part payments have
long been a feature of limitations law. It is considered, however, that
the introduction of a general discoverability / date of knowledge test for the
running of the basic limitation period will render it unnecessary for
limitations law to provide additional protection to the plaintiff in the event
of an acknowledgment or part payment by the defendant after the expiry of the
basic or ultimate limitation periods. The date of knowledge or
discoverability is premised on the theory that the plaintiff has all of the
knowledge required on a particular date to bring proceedings and that as a
result the plaintiff should be required to bring proceedings within a set
period after that date. It is clear that if an acknowledgment or part
payment occurs, this will go some way towards establishing that the plaintiff
has the requisite knowledge to commence proceedings, if he or she did not
already have that knowledge. It would be somewhat illogical to suggest
that the date of knowledge of the plaintiff should somehow re-occur at a date
after the requisite conditions are fulfilled, simply by reason of the
defendant’s acknowledgment of his liability or by his part payment in respect
of that liability. It may also have the undesirable effect of penalising
any attempt on the part of the defendant to achieve an out-of-court solution
after the plaintiff’s date of knowledge but before proceedings are commenced.
8.77
The Commission
is of the view that the law of limitations should provide real incentives for
proceedings to be brought as promptly as is possible, in the interests of
justice, certainty and fairness. The current provisions allowing for the
running of the limitation period to begin anew in the event of an
acknowledgment or a part payment detract from this important goal. To incorporate
such provisions into a new regime would be contrary to the spirit of ensuring
maximum clarity and consistency in the application of limitations law.
8.78
The Commission provisionally recommends that an
acknowledgment or part payment should have no impact on the running of either
the basic or ultimate limitation period.
8.79
Under section 71 of the
Statute of Limitations 1957, a limitation period will not begin to run
against a defendant if:-
“(a) the action is based on the fraud of the defendant or his
agent or of any person through whom he claims or his agent, or
(b) the right of action is concealed by the fraud of any such
person.”
8.80
The limitation period
begins to run only when the plaintiff “has discovered the fraud or could with
reasonable diligence have discovered it.[1798]
8.81
Section 71(1)(b) has
its origins in equitable principles which were, it appears, first laid down in
section 26 of the Real Property Limitation Act 1833[1799] as follows:-
“That in every case of a concealed fraud the right of
any person to bring a suit in equity for the recovery of any land or rent of
which he, or any person through whom he claims, may have been deprived by such
fraud, shall be deemed to have first accrued at and not before the time at
which such fraud shall or with reasonable diligence might have been first known
or discovered”.
8.82
Section 26
ameliorated the rigour of the 20-year limitation period set out in the Act for
persons claiming land or rent in equity.[1800] The “previously well-settled
principles of equity” set out in section 26 of the 1833 Act were interpreted as
being applicable “to all kinds of property, and not
to real property only”,[1801] although
doubts have been expressed about whether that interpretation was entirely
correct.[1802] The
rationale behind the rules governing fraudulent concealment been expressed as
follows:-
“The equitable exception to the old and unqualified
statutory limitation rule rested on the principle that a defendant whose
unconscionable conduct had denied the plaintiff the opportunity to sue in time
should not in conscience be permitted to plead the statute to defeat the
plaintiff’s claim provided the claim were brought timeously once the plaintiff
learned or should have learned of it.”[1803]
8.83
It should,
however, be noted that later judgments suggest that unconscionable behaviour is
not a prerequisite to establishing fraudulent or deliberate concealment.[1804]
8.84
The principle
underpinning section 71 of the Statute is that a limitation period
should generally not run against a plaintiff at that time when he or she is not
aware of the existence of his right of action. It is clear that this is
the same principle that underlies the discoverability / date of knowledge
test.
8.85
The Commission observed
in 2001 that the introduction of a discoverability test would “swallow up and
make redundant” section 71 of the Statute given that it essentially applies
a discoverability test. The introduction of a discoverability test would
therefore render that section somewhat unnecessary.[1805]
The Commission did not recommend the abolition of the principle, however, as it
was concerned that the date of discoverability of an action an action that has
been fraudulently concealed from the plaintiff might not always coincide with
the date of discoverability of the resulting loss. Fraudulent concealment
is linked to the plaintiff’s state of mind, which of course determines the date
of knowledge it is possible that a plaintiff might discover the loss on a
particular date and later discover the defendant’s fraud or fraudulent
concealment.[1806]
For this reason, the Commission in 2001 recommended the retention of a
provision equivalent to section 71 alongside the proposed discoverability rule.[1807]
8.86
In the context of
proposals for a simplified limitations regime, however, the Commission has
reconsidered its view. The Commission considers that if the date of
knowledge / discoverability test is carefully formulated, it will require a
plaintiff to bring proceedings only where the requisite knowledge to do
so. Where the plaintiff is deemed to have the requisite knowledge, it is
immaterial that the defendant sought to fraudulently conceal the cause of
action from her, whether successfully or otherwise. Where the date of
knowledge is defined by reference to the plaintiff’s constructive knowledge -
i.e. what ought she have known at the relevant time - any attempt to conceal
the cause of action on the part of the defendant will, of course, be an element
to be weighed in the balance. The fact that the plaintiff did not make
any inquiries which might otherwise have been expected of her may or may not be
outweighed by the defendant’s attempts to conceal the cause of action from
her. This can only be determined on a case by case analysis, depending on
the nature and degree of success of the defendant’s conduct and the various
other sources from which the plaintiff might have been expected to uncover the
requisite knowledge had she sought it out.
8.87
The Commission
therefore considers that the introduction of a general discoverability / date
of knowledge test will render obsolete the continued need for a provision such
as section 71 of the Statute.
8.88
The Commission provisionally recommends that
the concept of postponement in circumstances where the action is based on the
fraud of the defendant or the defendant has fraudulently concealed the cause of
action from the plaintiff should not be incorporated into a new limitations
regime which includes a discoverability test of general application.
8.89
Section 72 of the Statute
of Limitations 1957 provides a limited defence of mistake which suspends
the running of the limitation period until such time as the plaintiff has
discovered the mistake or could, with reasonable diligence, have discovered it.[1808] The defence is very limited as
it applies only where the basis of the plaintiff’s action is relief “from
the consequences of mistake”. Thus, the mistake must be part of
the cause of action.[1809]
An example of such an action would be a claim for rectification of a deed or of
the register in the case of registered title, or an action to recover money
paid under a mistake of fact. In Kearns & Fallon v McCann
Fitzgerald, Peart J. gave the example of a contract entered into as a result of a mistake and where the action is seeking relief by way of
rescission or rectification.[1810] The English Court of Appeal
has held, when interpreting section 32(1)(c) of the Limitation Act 1980,
a provision equivalent to section 72 of the Statute, that an action is
one for relief from the consequences of a mistake where the mistake is an
essential ingredient of the cause of action. [1811] The test of reasonable
diligence implies that time will still run against the plaintiff if he or she
could have discovered the mistake with such diligence, whether or not the
mistake was due to his or her fault or that of the defendant.[1812] The defence is not available to
plaintiffs who are mistaken as to or simply ignorant of their rights[1813] - a person may acquire adverse title
to land because, for example, of his neighbour’s mistake as to the location of
the boundary between the two properties.[1814]
8.90
In the light of the
proposed introduction of a general date of knowledge test, the Commission is of
the view that there is no continued need for a limitation defence of
mistake. Section 72 provides that time starts only from the date on which
the plaintiff discovers the mistake from the consequences of which he is
claiming relief, or with reasonable diligence could have discovered the
mistake. The introduction of a general date of knowledge test would mean
that the protection provided by section 72 would be automatically incorporated
into the general limitations regime.[1815]
Section 72 would therefore become obsolete.
8.91
The Commission provisionally recommends that
the defence of mistake should not be incorporated into a core limitations
regime which includes a discoverability test of general application.
9
The provisional
recommendations made in this Consultation Paper may be summarised as follows:
9.01
The Commission
provisionally recommends that the law governing limitation of actions must
ensure that, in resolving civil disputes in an orderly and timely fashion, it
takes into account the competing rights of plaintiffs and defendants as well as
the general interest of the public, within the framework of the Constitution
and the European Convention on Human Rights. [Paragraph 1.128.]
9.02
The Commission
provisionally recommends that, in the context of a reformed law on limitation
of actions, it should be clear that specific forms of civil litigation, such as
claims for breach of a fiduciary duty, do not fall within the scope of any
limitation period in the limitations legislation. [Paragraph 2.93]
9.03
The Commission
provisionally recommends that, since the principal legislation governing
limitation of actions, the Statute of Limitations 1957 (as amended) is
unnecessarily complex, it is in need of fundamental reform and simplification.
[Paragraph 2.264.]
9.04
The Commission
provisionally recommends the introduction of new “core regime” legislation
governing limitation of actions, based on a set of limitation periods that
would apply to various civil actions and which would remedy a number of
anomalies in the current law. The Commission also provisionally
recommends that the new legislation governing limitation of actions should
apply to the majority of civil actions, with limited exceptions which would
provide for special limitation periods. [Paragraph 3.65.]
9.05
The Commission
provisionally recommends the introduction of a uniform basic limitation period
of general application, which would apply to a wide range of civil actions,
subject to a limited number of exceptions. [Paragraph 4.13.]
9.06
The Commission
provisionally recommends the introduction of either:
(a) one basic limitation period of general
application, running for a period of two years; or
(b) three basic limitation periods of specific application, running from
periods of one, two and six years respectively. [Paragraph 4.53.]
9.07
The Commission
provisionally recommends that, subject to rules concerning the date from which
the basic limitation period is to run, the introduction of a two-year
limitation period would be sufficient for the majority of actions. [Paragraph
4.54.]
9.08
The Commission
provisionally recommends the basic limitation period should run from the date
of knowledge of the plaintiff [Paragraph 4.160.]
9.09
The Commission provisionally
recommends the introduction of an ultimate limitation period of general
application [Paragraph 5.16.]
9.10
The Commission
provisionally recommends the introduction of an ultimate limitation period of
general application of 12 years’ duration. [Paragraph 5.56.]
9.11
The Commission
provisionally recommends that the ultimate limitation period should run from
the date of the act or omission giving rise to the cause of action.
[Paragraph 5.109.]
9.12
The Commission
provisionally recommends that the ultimate limitation period should apply to
personal injuries actions [Paragraph 5.126.]
9.13
The Commission
provisionally recommends that if the proposed new legislation governing limitation
of actions limitation contains a short basic limitation period and a longer
ultimate limitation period, supplemented by rules governing postponement, it
need not include a provision allowing for judicial discretion to either extend
or dis-apply the limitation period [Paragraph 6.116.]
9.14
The Commission
provisionally recommends that the proposed new legislation governing limitation
of actions should include an express statement that, without prejudice to the
provisions of the legislation, the courts may continue to exercise their
inherent jurisdiction to dismiss a claim for prejudicial delay/ want of
prosecution. [Paragraph 7.60.]
9.15
The Commission
provisionally recommends that the term ‘disability’ should not form part of a
revised, modern limitations regime [Paragraph 8.15.]
9.16
The Commission
provisionally recommends that, in light of the proposal in the Government’s
Scheme of a Mental Capacity Bill 2008 to establish a new guardianship system
for adults whose mental capacity is limited or who lack mental capacity, the
proposed limitations regime should not allow for any exception to the running
of either the basic or the ultimate limitation period in the event that the
plaintiff is an adult whose mental capacity is limited or who lacks mental
capacity [Paragraph 8.45.]
9.17
The Commission
provisionally recommends that the proposed limitations regime should not allow
for any exception to the running of either the basic or the ultimate limitation
period in the event that the plaintiff is a under the age of 18 and is in the
custody of a competent parent or guardian who is conscious of his or her
responsibilities and is capable of commencing proceedings on behalf of the
plaintiff [Paragraph 8.52.]
9.18
The Commission
provisionally recommends the introduction of a residual discretion on the part
of the courts, exercisable in exceptional cases and subject to the interests of
justice, to allow proceedings to be commenced by a plaintiff who had not
reached the age of 18 before the expiry of the ultimate limitation period
[Paragraph 8.65.]
9.19
The Commission
provisionally recommends that a new limitations regime should not contain any
provision for postponement where the plaintiff is a convicted prisoner
[Paragraph 8.67.]
9.20
The Commission
provisionally recommends that an acknowledgment or part payment should have no
impact on the running of either the basic or ultimate limitation period
[Paragraph 8.78.]
9.21
The Commission
provisionally recommends that the concept of postponement in circumstances
where the action is based on the fraud of the defendant or the defendant has
fraudulently concealed the cause of action from the plaintiff should not be
incorporated into a new limitations regime which includes a discoverability
test of general application [Paragraph 8.88.]
9.22
The Commission
provisionally recommends that the defence of mistake should not be incorporated
into a core limitations regime which includes a discoverability test of general
application [Paragraph 8.91.]
[1]
Law Reform Commission, Report
on Third Programme of Law Reform 2008-2014 (LRC 86-2007), Project 4.
[2]
Report on the Statute
of Limitations: Claims in respect of Latent Personal Injuries (LRC
21-1987). The Commission also examined the area in: Report on
the Statute of Limitations: Claims in Contract and Tort in Respect of Latent
Damage (other than Personal Injury) (LRC 64-2001); Consultation Paper
on the Law of Limitation of Actions arising from Non-Sexual Abuse of
Children (LRC CP 16-2000); Consultation Paper on the
Statutes of Limitations: Claims in Contract and Tort in Respect of Latent
Damage (other than Personal Injuries) (LRC CP 13-1998); Report on
Defective Premises (LRC 3-1982); and Working Paper on the Law
relating to the Liability of Builders, Vendors, and Lessors for the Quality and
Fitness of Premises (LRC WP 1 – 1977).
[3]
LRC 74-2005, at 322-339, which followed from the Consultation Paper on
Reform and Modernisation of Land Law and Conveyancing Law (CP 34-2004). See
also Report on Title to Adverse Possession of Land (LRC 67-2002).
[4]
The Commission has also
had the benefit of the analysis in Brady & Kerr The Limitation of
Actions 2nd ed (Round Hall, 1994) and McMahon and Binchy, Law
of Torts 3rd ed (Tottel, 2000).
[5]
Under Order 8, rule 1 of
the Rules of the Superior Courts 1986, which applies to High Court
proceedings, the plaintiff is allowed 12 months from the date of issue of the
originating document before he or she is obliged to serve that document on the
defendant. If the 12 month period is about to expire and the originating
document has not yet been served, the plaintiff may apply to the court for
permission to renew the summons for a further six month period.
Alternatively, after the expiry of the initial 12 month period, an application
may be made for an extension of time to make an application for permission to
renew the summons.
[6]
The Statute of
Limitations 1957 has also been amended on a number of occasions by other
legislation, such as the Civil Liability Act 1961, the Civil
Liability and Courts Act 2004 and the Defamation Act 2009. See the
list of Acts in fn.6, below. The Commission is currently preparing a
Restatement (administrative consolidation) of the 1957 Statute as part of its First
Programme of Statute Law Restatement: see Report on Statute Law
Restatement (LRC 91-2008).
[7]
See e.g. Civil
Liability Act 1961; ss.49 and 122, Registration of Title Act 1964;
Schedule, Civil Liability (Amendment) Act 1964; Part XI, Succession
Act 1965; s.22(7), Family Law (Maintenance of Spouses and Children) Act
1976; s.13(8), Sale of Goods and Supply of Services Act 1980;
s. 23, Malicious Injuries Act 1981; s.3(6), Animals Act 1985;
Age of Majority Act 1985; s.3(2), Health (Amendment) Act 1986;
s.21(4), Control of Dogs Act 1986; s.133, Bankruptcy Act 1988;
s.3, International Carriage of Goods by Road Act 1990; s.7, Liability
for Defective Products Act 1991; Schedule 3, Criminal Law Act 1997;
Schedule, Stamp Duties Consolidation Act 1999; s.134(2),Copyright
and Related Rights Act 2000; s.50, Personal Injuries Assessment
Board Act 2003; s.84(7), Residential Tenancies Act 2004; s.7, Civil
Liability and Courts Act 2004; s.38, Defamation Act 2009. In
addition, where new areas of liability arise under EC Directives, the implementing
legislation may often take the form of Regulations made under the European
Communities Act 1972, so that some relevant limitation periods are now to
be found in such Regulations rather Acts of the Oireachtas.
[8]
Sections 11 and 12, Statute
of Limitations 1957.
[9]
Sections 13 to 42, Statute
of Limitations 1957.
[10]
Sections 43 and 44, Statute
of Limitations 1957.
[11]
Sections 45 and 46, Statute
of Limitations 1957.
[12]
Section 4, Statute of
Limitations 1957. See further in this respect: section 76, Merchant
Shipping Act 1894; section 99, Mercantile Marine Act 1955.
[13]
Section 11(8), Statute of
Limitations 1957. Note, however, section 11(8)(a), which provides that this
exclusion does not apply to an action to recover seamen’s wages, so that such
claims are covered by the relevant limitation period in the 1957 Statute.
[14]
Section 10, Proceeds of
Crime (Amendment) Act 2005.
[15]
Section 7(a), Statute of
Limitations 1957.
[16]
Section 7(b), Statute of
Limitations 1957. Where a State authority is party to an action in relation
to which a limitation period is fixed for private citizens under an enactment
other than the Statute, the State authority is subject to that
limitation period (and not to the Statute).
[17]
The Commission has been involved in
the reform of the substantive law of land law and conveyancing law (Report
on Reform and Modernisation of Land Law and Conveyancing Law (LRC 74-2005),
culminating in the enactment of the Land and Conveyancing Law Reform Act
2009, which includes aspects of limitation periods. The Commission will
also deal with the limitations aspects of the law of adverse possession under
its Third Programme of Law Reform 2008-2014, Project 20.
[18]
The Commission addressed aspects of
this in its Report on Judicial Review Procedure (LRC 71-2004) at 35-52.
[19]
The Commission has addressed some
aspects of this in its Consultation Paper on Alternative Dispute Resolution (LRC
CP 50-2008), which forms part of its Third Programme of Law Reform 2008-2014
(Project 5).
[20]
Courts Service Annual Report 2007,
available at www.courts.ie .
[21]
The 2007 figure represents 43% of the total number of commercial cases listed
since the Commercial Court commenced operation.
[22]
Courts Service Annual Report
2007. 30,435 Civil Bills were issued in 2007, compared to 26,503 in 2006.
[23]
Courts Service Annual Report
2007. 49,965 actions were commenced in 2006, compared to 59,061 in 2007.
[24]
This is an alternative method of
commencing and dealing with disputes concerning certain small claims. The
procedure is provided by District Court offices and is designed to handle
certain consumer claims cheaply. See further District Court (Small Claims
Procedure) Rules 1999, as amended.
[25]
Applications relating to holidays
accounted for more than 10% of the total of these claims. Notably, there was an
increase of 94% in claims involving furniture, and an increase of 92% in claims
involving damage to private property.
[26]
No. 6 of 1957.
[27]
21 James 1, c. 16.
[28]
32 Hen VIII, c. 2
(1540).
[29]
21 James 1, c. 16
(1623); Civil Procedure Act 1833 (3 & 4 Will IV, c. 42).
[30] Crown Suits
Act 1769 (9 Geo. III, c. 16) (also known as the Nullum Tempus Act),
amended by the Crown Suits Act 1861 (24 & 25 Vic, c. 62).
[31]
Civil Procedure Act 1833 (3 & 4 Will IV, c. 42).
[32] Real Property
Limitation Act 1833 (3 & 4 Will IV, c. 27); Real Property Limitation
Act 1874 (37 & 38 Vic, c. 57).
[33]
Trustee Act 1888 (51
& 52 Vic, c. 59).
[34] Public
Authorities Protection Act 1893 (56 & 57 Vic, c. 61).
[35]
See Law Reform Commission of Western Australia Report on Limitation and
Notice of Actions (Project No. 36II, 1997) at Chapter 16.
[36]
Alberta Institute of Law Research
and Reform Limitations (Report for Discussion No. 4, September 1986) at
68.
[37]
21 James 1, c 16 (1623).
[38]
See e.g. Administration of
Justice Act 1707 (4 & 5 Anne, c. 3); 6 Anne, c.10 Ir (so as to include
seamen’s wages); 8 Geo 1, c.4 Ir; Statute of Frauds Amendment Act 1828
(9 Geo IV, c .14); Mercantile Law Amendment Act 1856 (19 & 20 Vic,
c. 97).
[39]
Bell v Morrison (1828)
26 US 351, 360 (Story J., US Supreme Court).
[40]
3 & 4 Will IV, c. 42
(1833).
[41]
Law Revision Committee Fifth
Interim Report: Statutes of Limitation (Cmd. 5334, 1936) at 8.
[42]
Ibid at 8-9.
[43]
An Act for Limitation of
Actions, and for avoiding of Suits in Law (10 Car.1.sess.2, c. 6 Ir).
Amended in 1707 (6 Anne, c.10 Ir), to include actions in respect of seamen’s
wages. Further amended in 1721 (8 Geo. 1, c.4 Ir).
[44]
See An Act for Limitation
of Actions, and for avoiding of Suits in Law (10 Car.1.sess.2, c. 6 Ir); An
Act for Expedition of Justice in Cases of Demurrers, &c. (10 Car. 1.
Sess. 2. c.11); An Act for […] the further
Amendment of the Law and the better Advancement of Justice in Ireland (3
& 4 Vic. c. 105).
[45]
Sections 20-30, Common Law
Procedure (Ireland) Act 1853 (16 and 17 Vic, c.113).
[46]
Schedule A of the 1853 Act
repealed sections 14, 16 and 17 of the Act for Limitation of Actions and for
avoiding of Suits of Law (10 Car. 1. Sess. 2. c. 6); the entirety of the Act
for Expedition of Justice in Cases of Demurrers, &c. (10 Car. 1. Sess.
2. c.11) and sections 32-39 of the Debtors (Ireland) Act 1840 (3 & 4
Vic, c.113).
[47]
See e.g. Schedule 1, Courts
of Justice Act 1936.
[48]
Section 1(2), Statute of
Limitations 1957.
[49]
The English Limitation Act
1623 (21 James 1, c. 16) set the same period.
[50]
The English Civil Procedure
Act 1833 (3 & 4 Will IV, c. 42) set the same period.
[51]
The English Limitation Act
1623 (21 James 1, c. 16) set the same period.
[52]
The English Limitation Act
1623 (21 James 1, c. 16) set the same period.
[53]
The English Civil Procedure
Act 1833 (3 & 4 Will IV, c. 42) set the same period.
[54]
The English Civil Procedure
Act 1833 (3 & 4 Will IV, c. 42) set the same period.
[55]
The English Limitation Act
1623 (21 James 1, c. 16) set the same period.
[56]
The English Limitation Act
1623 (21 James 1, c. 16) set the same period.
[57]
The English Limitation Act
1623 (21 James 1, c. 16) set the same period.
[58]
The English Limitation Act
1623 (21 James 1, c. 16) set the same period.
[59]
The English Civil Procedure
Act 1833 (3 & 4 Will IV, c. 42) set the same period.
[60]
The English Civil Procedure
Act 1833 (3 & 4 Will IV, c. 42) set the same period.
[61]
Sections 21 and 22, Common
Law Procedure Amendment Act (Ireland) 1853 (16 & 17 Vic, c.113).
[62]
Ibid at section 23.
[63]
Ibid at section 24.
[64]
F Pollock and FW Maitland The History of English Law before the time of
Edward I (2nd ed 1968) at 81.
[65]
Statute of Merton, 20 Hen III, c 8
(1235); Statute of Westminster, 3 Ed I c 39 (1275).
[66]
32 Hen VIII, c. 2 (1540).
[67]
21 James 1, c 16 (1623).
[68] First
Report of the Real Property Commissioners
(Parliamentary Papers, 1829) cited in Law Commission for England and Wales Limitation
of Actions (Consultation Paper No. 151, 1998) at 5.
[69]
Section 2, Real Property
Limitation Act 1833 (3 & 4 Will IV, c 27).
[70]
An Act to amend an Act of
the Third and Fourth Years of His late Majesty, for the Limitation of Actions
and Suits relating to Real Property, and for simplifying the Remedies for
trying the Rights thereto July 3 1837 (1 Vic, c 28).
[71]
Section 1, Real Property
Limitation Act 1874 (37 & 38 Vic, c 57). Section 9 thereof repealed and
replaced sections 2, 5, 16, 17, 23, 28, 40 of the 1833 Act.
[72]
Brady & Kerry The
Limitation of Actions (2nd ed 1994) at 3.
[73]
Sections 32-36, An Act for
abolishing Arrest on Mesne Process in Civil Actions, except in certain Cases;
for extending the Remedies of Creditors against the Property of Debtors; and
for the further Amendment of the Law and the better Advancement of Justice in
Ireland (3 & 4 Vic. c. 105).
[74]
New South Wales Law Reform
Commission First Report on Limitation of Actions (LRC 3, October 1967)
at 8.
[75]
Law Revision Committee Fifth
Interim Report: Statutes of Limitation (Cmd. 5334, 1936) at paragraph
5. With respect to such abolition, see the Common Law Procedure Acts
and the Judicature Act 1873.
[76]
Law Revision Committee Fifth
Interim Report: Statutes of Limitation (Cmd. 5334, 1936) at paragraph
7.
[77]
2 & 3 Geo.
6, c. 21.
[78]
See further Unger “Statutes:
Limitation Act, 1939” 4 MLR 45 (1940-41) at 45.
[79]
Newson & Abel-Smith Preston
and Newsom on Limitation of Actions (3rd ed 1953) at v.
[80]
2 & 3
Eliz. 2, c. 36.
[81]
c.47.
[82]
c.54.
[83]
Adams “Provincial Statutes of
Limitations and Historical Interference with Indian Lands” (2001) 7 Appeal:
Rev. Current L. & L. Reform 32, 32.
[84]
Law Reform Commission Consultation
Paper on The Law of Limitation of Actions arising from Non-Sexual Abuse of
Children (CP16-2000) at paragraph 1.20.
[85]
Ibid at paragraph 1.14.
[86]
New Zealand Law Commission
Consultation Draft: Limitation Defences Bill 2007 (NZLC 69, 2007), at 4.
[87]
O’Brien v. Manufacturing
Engineering Co. Ltd [1973] IR 334, 366.
[88]
Macauley v Minister for
Posts and Telegraphs [1966] IR 345, 358; Murphy v Minister for Justice [2001] 1 IR 95, 98
[89]
Buckley and Others (Sinn
Féin) v The Attorney General & anor [1950] IR 67, 81. Article 40.3.1°
provides as follows:- “The State guarantees in its laws to respect, and, as far
as practicable, by its laws to defend and vindicate the personal rights of the
citizen.”
[90]
In Murphy v Minister for Justice [2001] 1 IR 95, 98-99.
[91]
Macauley v Minister for
Posts and Telegraphs [1966] IR 345, 358.
[92]
Byrne v Ireland [1972]
IR 289, 292-3.
[93]
White v Dublin City Council
and the Attorney General [2004] 1 IR 545, 567; O’Brien v
Manufacturing Engineering Co. Ltd [1973] IR 334, 364.
[94]
White v Dublin City Council
and the Attorney General [2004] 1 IR 545, 567. See also
Murphy v Greene [1990] 2 IR 566, 578.
[95]
Buckley and Others (Sinn
Féin) v Attorney General [1950] IR 67, 84.
[96]
O’Brien v Keogh [1972] IR
144, 155.
[97]
Byrne v Ireland [1972]
IR 289, 293.
[98]
Macauley v Minister for Posts and Telegraphs [1966] IR 345, 358.
[99]
Macauley v Minister for
Posts and Telegraphs [1966] IR 345, 358.
[100]
Murphy v Greene [1990]
2 IR 566, 578.
[101]
Report of the Constitution
Review Group (1996) at 134.
[102]
In re Article 26 and the
Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360, 394.
[103]
O’Brien v. Manufacturing
Engineering Co. Ltd [1973] IR 334, 366.
[104]
Article 40.3.2° provides as follows:
“The State shall, in particular, by its laws protect as best it may from unjust
attack and, in the name of injustice done, vindicate the life, person, good
name, and property rights of every citizen.”
[105]
O’Brien v Keogh [1972] IR 144.
[106]
Section 49(2)(a)(ii), Statute of
Limitations 1957.
[107]
Moynihan v Greensmyth [1977]
IR 55.
[108]
Cahill v Sutton [1980] 1 IR
269.
[109]
Cahill v Sutton [1980] 1 IR
269, 272.
[110]
Ó
Domhnaill v Merrick [1984] 1 IR 151, 161
[111]
Brady v
Donegal Counity Council [1989] ILRM 282.
[112]
(1992) 96 DLR (4th) 289.
[113]
KM v HM (1992) 96 DLR
(4th) 289, 301-305 (emphasis added), cited by Law Reform Commission of Western
Australia Report on Limitation and Notice of Actions (Project No. 36II,
1997) at paragraph 7.5.
[114]
Ó Domhnaill v Merrick [1984]
IR 151, 158.
[115]
The State (O'Connell) v
Fawsitt [1986] IR 362, 365.
[116]
Southern Mineral Oil
Limited (in liquidation) v Coonev [1997] 3 IR 549, 562.
[117]
Allen v Sir Alfred McAlpine
Sons & anor [1968] 2 QB 229, 245.
[118]
Allen v Sir Alfred McAlpine
Sons & anor [1968] 2 QB 229, 255.
[119]
Tuohy v
Courtney [1994] 3 IR 1, 48.
[120]
O’Connor v John Player
& Sons Ltd [2004] 2 ILRM 321 (headnote), cited as a
“useful summary of the judgment” in Shanahan v P.J. Carroll & Co.
Ltd [2007] IEHC 229.
[121]
Rogers v Michelin Tyre plc [2005] IEHC 294.
[122]
White v Dublin City
Council [2004] 1 IR 545, 56. See also Kelly v
O’Leary [2001] 2 IR 526; Sheehan v Amond [l982]1 IR 235; Allen v
Sir Alfred McAlpine Sons & anor [1968] 2 QB 229, 255.
[123]
British Columbia Law Institute The
Ultimate Limitation Period: Updating the Limitation Act (BCLI Report No.
19, July 2002) at 6.
[124]
Sheehan v Amond [1982]
IR 235, 238.
[125]
Law Reform Commission Consultation Paper on The Law of Limitation of Actions
arising from Non-Sexual Abuse of Children (CP16-2000) at paragraph 1.19.
[126]
White v Dublin City Council [2004] 1 IR 545, 568.
[127]
Ó Domhnaill v Merrick [1984]
IR 151, 157.
[128]
Ó Domhnaill v Merrick [1984]
IR 151, 158.
[129]
O’Keeffe v Commissioners of
Public Works Supreme Court 24 March 1980. There had been only two
witnesses to the accident, one of whom was dead. The other witness’ memory had
been “all but obliterated by the passage of time.” Additionally, the store in
which the accident took place had been “redesigned out of all recognition.”
[130]
J O’C v Director of Public
Prosecutions [2000] 3 IR 478, 499-500. Hardiman J was in a minority in
terms of the outcome of the case, but this summary of the effects of delay is
not affected by this.
[131]
This summary of principles was adopted and
applied by the High Court in Manning v Benson & Hedges Ltd [2004] 3
IR 556, 568.
[132]
Southern Mineral Oil Limited (in
liquidation) v Coonev (1997) 3 IR 549, 562.
[133]
Tuohy v
Courtney [1994] 3 IR 1, 48.
[134]
See Law Commission of Western
Australia Limitation and Notice of Actions (Project No 36 Part II,
Discussion Paper, January 1985) paragraph 1.2.
[135]
Tuohy v
Courtney [1994] 3 IR 1, 48.
[136]
Birkett v James [1978] 1 AC 297,
331.
[137]
Oireachtas Debates, Seanad Eireann, volume
47, January 16 1957, Statute of Limitations Bill 1954 – Second Stage at
57.
[138]
Ibid at 58.
[139]
See Turner “The Doctrine of Adverse
Possession: Is it Equitable?” The Property Valuer, Autumn 2006 at 18-21.
[140]
Law Commission for England and Wales
Report on land registration for the Twenty-First Century - A Consultative
Document (jointly with the HM Land Registry) (Law Com 254, 1998) at
paragraph 10.6.
[141]
O’Brien v Manufacturing
Engineering Co. Ltd [1973] IR 334, 366-67. In this case, however, the
Supreme Court reserved judgment as to whether the right to sue claimed by the
plaintiff was a property right and, if so, whether it was one of the property
rights guaranteed by Article 40(3)(2) of the Constitution.
[142]
Tuohy v
Courtney [1994] 3 IR 1, 47.
[143]
O’Brien v Manufacturing
Engineering Co. Ltd [1973] IR 334, 367.
[144]
Tuohy v
Courtney [1994] 3 IR 1, 47.
[145]
Law Reform Commission Consultation
Paper on the Law of Limitation of Actions arising from Non-Sexual Abuse of
Children (CP16-2000) at paragraph 1.20.
[146]
Ibid at paragraph 1.19.
[147]
Byrne v Minister for Defence [2005] 1 IR 577, 585.
[148]
Ibid at 585.
[149]
Tuohy v
Courtney [1994] 3 IR 1, 48.
[150]
Brady v
Donegal County Council [1989] ILRM 282, 289.
[151]
Cartledge v E Jopling & Sons Ltd [1962]
1 QB 189, 195.
[152]
New Zealand Law Commission Tidying the
Limitation Act (NZLC R 61, July 2000) at paragraph 1.
[153]
Law Reform Commission Consultation Paper on The Law of Limitation of Actions
arising from Non-Sexual Abuse of Children (CP16-2000) at paragraph 1.19.
[154]
Ó Domhnaill v Merrick [1984] 1 IR
151, 158.
[155]
Law Reform Commission of Western
Australia Report on Limitation and Notice of Actions (Project No. 36II,
1997) at paragraph 7.6.
[156]
New Zealand Law Commission Tidying the
Limitation Act (NZLC R 61, July 2000) at paragraph 1.
[157]
Brady v Donegal County Council [1989]
ILRM 282, 288.
[158]
See e.g., s.82, Local Government
(Planning and Development) Act 1963; s.78(2) of the Housing Act 1966;
s.85(8), Environmental Protection Agency Act 1992; s.43(5), Waste
Management Act 1996; s.12(2), Transport (Dublin Light Rail) Act 1996; s.13(3)
of the Irish Takeover Panel Act 1997; s.73(2), Fisheries (Amendment)
Act 1997; s.55A,the Roads Act 1993 (inserted by s.6 of
the Roads (Amendment) Act 1998); and s.5(2), Illegal
Immigrants (Trafficking) Act 2000.
[159]
Delany “Extension of Time for Bringing
Judicial Review Pursuant to s.5 of the Illegal Immigrants (Trafficking) Act
2000” (2002) 20 ILT 44.
[160]
K.S.K. Enterprises Ltd. v An Bord
Pleanála [1994] 2 IR 128, 135.
[161]
By section 42 of the Local Government
(Planning and Development) Act 1976.
[162]
Brady v
Donegal Co. Council [1989] ILRM 282.
[163]
Brady v
Donegal Co. Council [1989] ILRM 282.
[164]
See Cavern Systems Ltd v Clontarf
Residents' Association [1984] ILRM 24.
[165]
Brady v
Donegal Co. Council [1989] ILRM 282.
[166]
See Cahill v Sutton [1980] IR 269, 288.
[167]
Brady v
Donegal County Council [1989] ILRM 282.
[168]
See Cahill v Sutton [1980] IR 269,
at 273-274.
[169]
Brady v
Donegal County Council [1989] ILRM 282, 288.
[170]
Ibid at 288.
[171]
Ibid at 289.
[172]
Ibid at 289.
[173]
Brady v
Donegal County Council [1989] ILRM 282, 289.
[174]
See section 13, Planning and
Development (Strategic Infrastructure) Act 2006.
[175]
Sections 50(6) and (7), Planning and
Development Act 2000, as amended.
[176]
Garrett Simmons Planning and
Development Law (2nd ed, 2007) at §11-53.
[177]
Section 50(4), Planning and Development
Act 2000, as amended.
[178]
Harding v Cork County Council [2008] IESC 27.
[179]
Harding v Cork County Council [2008] IESC 27.
[180]
Section 50(8), Planning and Development
Act 2000, as amended by section 13, Planning and Development (Strategic
Infrastructure) Act 2006. Part (b) is new, it did not form part of the
original section 50 procedures, while part (a) is now phrased in negative terms
by comparison with Order 84, rule 21 of the Rules of the Superior Courts
1986.
[181]
See Kelly v Leitrim County Council [2005] 2 IR 404, 415. This was prior to the
amendment of section 50 by section 13 of the Planning and Development
(Strategic Infrastructure) Act 2006.
[182]
Casey v An Bord Pleanála [2004] 2
IR 296.
[183]
Openneer v Donegal County Council [2005] IEHC 156.
[184]
Openneer v Donegal County Council [2005] IEHC 156. See also Harrington v An
Bord Pleanála [2005] 1 IR 388; Lennon v Cork City Council [2006] IEHC 438.
[185]
Section 264, Planning and Development Act 2000.
[186]
Section 265(4). .
[187]
White v Dublin City Council [2004] 1 IR 545.
[188]
Section 19(3), Local Government
(Planning and Development) Act 1992 substituted
two subsections, 3A and 3B, for the existing sub-sections under the 1963 Act.
Under the new section 82(3B), an application for leave to apply for
judicial review in respect of planning decisions made either by a planning
authority or An Bord Pleanála had to be made within two months of the
date on which the decision is given.
[189] White v Dublin City Council [2004] 1 IR 545, 573.
[190] Ibid at 573.
[191] Ibid at 574.
[192] Ibid at 573.
[193] Ibid at 575.
[194] Ibid at 575.
[195] Ibid at 574-5.
[196]
Jerry Beades Construction Ltd v Dublin
Corporation [2005] IEHC 406.
[197]
See sections 5(1)(a)-(n), Illegal
Immigrants (Trafficking) Act 2000.
[198]
Brady v
Donegal County Council [1989] ILRM 282, 289.
[199]
In re Article 26 and the Illegal
Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360.
[200]
Ibid at 394.
[201]
In re Article 26 and the Illegal
Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360, 392.
[202]
Ibid at 392.
[203]
S v Minister for Justice Equality and Law Reform [2002] 2 IR 163.
[204]
S.I. No. 374 of 1998.
[205]
Dekra Éireann
Teo v Minister for the Environment [2003] 2 IR 270.
[206]
See Kelly v Leitrim County Council [2005] 2 IR 404, 411.
[207]
Order 84, rule 21(1), Rules of the
Superior Courts 1986, as amended.
[208]
See The State
(Cussen) v Brennan [1981] IR 181. In that case, a period of four months from the date of
the impugned decision was regarded as not fulfilling that criterion. See
further K.S.K. Enterprises Ltd. v An Bord Pleanála [1994] 2 IR 128; Slatterys
Ltd v Commissioner of Valuation and Others [2001] 4 IR 91; Dekra Eireann Teo v
Minister for the Environment [2003] IESC 25.
[209]
De Róiste v Minister for Defence
[2001] 2 ILRM 241, 266.
[210]
Marshall v Arklow Town Council
[2006] 1 ILRM 150.
[211]
Marshall v Arklow Town Council
[2006] 1 ILRM 150.
[212]
O’Brien v Manufacturing
Engineering Co. Ltd [1973] IR 334, 372.
[213]
Ryan v Attorney General [1965] IR 294, 312-313.
[214]
Murphy v Greene [1990] 2 IR
566, 572.
[215]
Ryan v Attorney General [1965] IR 294, 312-313: “When dealing with
controversial social, economic and medical matters on which it is notorious views
change from generation to generation, the Oireachtas has to reconcile the
exercise of personal rights with the claims of the common good”.
[216]
White v Dublin City Council [2004] 1 IR 545, 568.
[218]
Ryan v Attorney General [1965] IR 294, 312-313.
[219]
Murphy v Greene [1990] 2 IR
566, 572.
[220]
O'Dowd v
North Western Health Board [1983] I.L.R.M. 186, 190.
[221]
Tuohy v
Courtney [1994] 3 IR 1, 48.
[222]
Ibid at 50.
[223]
Ibid at 48. The Court
concluded that the absolute character of the six year limitation period laid
down by s. 11(2)(a) of the Statute of Limitations 1957 did not render it
unconstitutional. It observed that the “period of six years is, objectively
viewed, a substantial period” and that existing provisions for extension in
cases of disability, part-payment, fraud and mistake “constitute a significant
inroad on the certainty and finality provided by the Act.”
[224]
O’Brien v Manufacturing
Engineering Co. Ltd [1973] IR 334, 366.
[225]
In re R. Ltd
[1989] IR 126. The Court was considering the interpretation of
section 205(7) of the Companies Act 1963 which permitted, under certain
circumstances, the hearing of an application pursuant to that section in
camera. The Court had regard to Article 34 of the Constitution,
which specifies that the administration of justice be in public, subject to
exceptions prescribed by law.
[226]
Cahill v Sutton [1980] IR 269.
[227]
Ibid at at 273-274. Finlay CJ felt
obliged to follow the approach adopted in O’Brien v Manufacturing
Engineering Co. Ltd [1973] IR 334 rather than the approach adopted in O’Brien
v Keogh [1972] IR 144. The approach taken by Finlay CJ was followed
by Costello J. in Brady v Donegal County Council [1989] ILRM 282.
[228]
Comcast International Holdings
Inc v Minister for Public Enterprise [2007] IEHC 296.
[229]
Stubbings v United Kingdom (1997) 23 EHRR 213, § 50.
[230]
Jacobs &White The European
Convention on Human Rights (4th ed OUP 2006) at 187.
[231]
Airey v Ireland, judgment of
9 October 1979, Series A no. 32, p. 12, §24.
[232]
Golder v United Kingdom (1979–80)
1 EHRR 524.
[233]
See ibid at § 38.
[234]
Stubbings v United Kingdom (1997) 23 EHRR 213, § 51.
[235]
X v Sweden (app. No 9707/82,
decision of 6th October, 1982).
[236] Stubbings v United Kingdom (1997) 23 EHRR 213, § 54.
[237] Ibid at § 54.
[238] Ibid at § 55.
[239]
Stubbings v United Kingdom (1997) 23 EHRR 213 at § 50.
[240]
Ibid at § 50.
[241]
Ashingdane v United Kingdom (1985) 7 EHRR 528 at §§ 57-59.
[242]
Stubbings v United Kingdom (1997) 23 EHRR 213 at § 50.
[243]
Ashingdane v United Kingdom (1985) 7 EHRR 528 at § 57.
[244]
Ibid at § 57.
[245]
See generally Delany “The Obligation
on the Courts to Deal with Cases within a ‘Reasonable Time’” (2004) 22
ILT 249.
[246]
Doran v Ireland, no. 50389/99, judgment of July 31 2003, [2003] ECHR 417 at § 44.
[247]
Price and Lowe v United Kingdom,
nos. 43185/98 and 43186/98, judgment of July 29 2003, [2003] ECHR 409 at § 23.
[248]
Ibid at § 23.
[249]
Price and Lowe v United Kingdom,
nos. 43185/98 and 43186/98, judgment of July 29 2003, [2003] ECHR 409 at § 23.
[250]
Doran v Ireland, no. 50389/99, judgment of July 31 2003, [2003] ECHR 417 at § 47.
[251]
See e.g. McMullen v Ireland, no.
42297/98, judgment of July 29 2004, [2004] ECHR 422 at § 33; Doran v Ireland,
no. 50389/99, judgment of July 31 2003, [2003] ECHR 417 at § 44; O’Reilly and
Anor v Ireland, no. 54725/00, judgment of October 29 2004, [2006] 40 EHRR
40 at § 30.
[252]
Dyer v Watson [2002] 3 WLR 1488, 1508 (Privy Council).
[253]
McMullen v Ireland, no. 42297/98,
judgment of July 29 2004, [2004] ECHR 422 at § 33.
[254]
Doran v Ireland, no. 50389/99, judgment of July 31 2003, [2003] ECHR 417 at § 44; Price and Lowe v
United Kingdom, nos. 43185/98 and 43186/98, judgment of July 29
2003, [2003] ECHR 409 at § 20.
[255]
Doran v Ireland, no. 50389/99, judgment of July 31 2003, [2003] ECHR 417 at §§ 44 and 47; Price
and Lowe v United Kingdom, nos. 43185/98 and 43186/98, judgment of
July 29 2003, [2003] ECHR 409 at § 20.
[256]
Doran v Ireland, no. 50389/99, judgment of July 31 2003, [2003] ECHR 417 at § 44; Price and Lowe v
United Kingdom, nos. 43185/98 and 43186/98, judgment of July 29
2003, [2003] ECHR 409 at § 20.
[257]
McMullen v Ireland, no. 42297/98,
judgment of July 29 2004, [2004] ECHR 422, § 35.
[258]
Ibid at § 35.
[259]
Union Alimentara Sanders SA v Spain,
no. 11681/85, (1989) 12 EHRR 24, judgment of July 7 1989 at § 35.
[260]
McMullen v Ireland, no. 42297/98,
judgment of July 29 2004, [2004] ECHR 422 at § 31.
[261]
Ibid at § 30-31.
[262]
Ibid at § 31.
[263]
Mitchell and Holloway v United Kingdom,
no. 44808/98, judgment of December 17
2002, [2003] 36 EHRR 52 at § 50.
[264]
Ibid at § 50.
[265]
Mitchell and Holloway v United Kingdom,
no. 44808/98, judgment of December 17
2002, [2003] 36 EHRR 52 at § 58.
[266]
Delany “The Obligation on the Courts to
Deal with Cases within a ‘Reasonable Time’” (2004) 22 ILT 249.
[267]
Committee on Court Procedure and Practice 28th
Interim Report - Court Rules Committee (September 2003) (available at
www.courts.ie). See further Buckley “Implementation of a Modern Case
Management System” (2005) 23 ILT 27.
[268]
Rules of the Superior Courts
(Commercial Proceedings) 2004 (SI No 2 of 2004).
[269]
This followed the recommendations in the
Commission’s Report on Judicial Review Procedure (LRC 71-2004).
[270]
Union Alimentara Sanders SA v Spain,
no. 11681/85, [1989] 12 EHRR 24, judgment of July 7 1989 at § 40.
[271]
Ibid at §40.
[272]
Doran v Ireland, no. 50389/99, judgment of July 31 2003, [2003] ECHR 417 at § 48. The State was
ordered to pay damages of €26,000 to the applicants.
[273]
Ibid at § 48.
[274]
Ibid at § 45.
[275]
Ibid at § 46. It was noted that “the
applicants diligently pursued the timely resolution of the proceedings issued
by them”, had performed “timely completion of their submissions and their
numerous motions to the court” and were “tenacious in their pursuit of informal
means of speeding up their proceedings”. They had approached the Taoiseach and
the Tánaiste, who in turn had received assurances from the Attorney General and
the Department of Justice.
[276]
McMullen v Ireland, no. 42297/98,
judgment of July 29 2004, [2004] ECHR 422. The State was ordered
to pay €8,353.26 to the applicant.
[277]
McMullen v Ireland, no. 42297/98,
judgment of July 29 2004, [2004] ECHR 422 at § 37.
[278]
Ibid at § 31.
[279]
Ibid at § 36.
[280]
Ibid at § 37.
[281]
Ibid at § 39.
[282]
O’Reilly and Anor v Ireland, no. 54725/00,
judgment of October 29 2004, [2006] 40 EHRR 40. The State was ordered to pay
€1,400 to the applicants.
[283]
Ibid at § 31.
[284]
Ibid at § 32-33.
[285]
Ibid at § 34.
[286]
Barry v Ireland, no. 18273/04,
judgment of December 15 2005, [2005] ECHR 865. The State was ordered
to pay to the applicant €15,000 in damages.
[287]
Ibid at § 37.
[288]
Ibid at § 35.
[289]
Ibid at § 45-46.
[290] Phinikaridou v
Cyprus no. 23890/02,
judgment of 20 December 2007 at § 62.
[291]
Phinikaridou v Cyprus no. 23890/02, judgment of 20
December 2007 at § 63.
[292]
Ibid at § 64.
[293]
Doran v Ireland, no. 50389/99, judgment of July 31 2003, [2003] ECHR 417 at § 55.
[294]
Ibid at § 58.
[295]
Doran v Ireland, no. 50389/99, judgment of July 31 2003, [2003] ECHR 417 at § 58.
[296]
Ibid at § 56.
[297]
Ibid at § 58.
[298]
Ibid at § 58.
[299]
Ibid. See also Croke v
Ireland (dec), no. 33267/96, 15 June 1999 (friendly settlement), and Quinn
v Ireland (dec), no. 36887/97, 21 September 1999.
[300]
Doran v Ireland, no. 50389/99, judgment of July 31 2003, [2003] ECHR 417 at § 56.
[301]
Ibid at § 57.
[302]
Ibid at § 57.
[303]
O’Reilly and anor v Ireland, no.
54725/00, judgment of October 29 2004, [2006] 40 EHRR 40.
[304]
Bruncrona v Finland, App no. 41673/98, judgment of 16 November
2004 at § 65.
[305]
The Commission is currently engaged in a
separate project on adverse possession (Third Programme of Law Reform
2008-2014, Project 20), which will discuss the application of the Statute
in this context. This will include discussion of the application of these
provisions of the Convention, in the light of the decision of the Grand Chamber
of the European Court of Human Rights in J.A. Pye (Oxford) Ltd v United Kingdom,
App No. 44302/02, judgment of 30 August 2007.
[306]
Law Reform Commission of Western
Australia Report on Limitation and Notice of Actions (Project No. 36II,
1997), at paragraph 7.8.
[307]
On the general scope of
the Consultation Paper, see paragraph 14ff of the Introduction.
[308]
9 & 10 Vic, c. 93.
[309]
No. 3 of 1956. These
dealt with actions for the benefit of relatives of a deceased person killed by
the wrongful act, neglect or default of another.
[310]
23 & 24 Vic, c.
154.This dealt with actions by an ejected tenant for restitution of possession.
[311]
1 & 2 Geo, 5., c.57.
This dealt with actions to enforce a claim or lien against a ship or its
owners.
[312]
No. 16 of 1927. This
dealt with actions for infringement of copyright.
[313]
No. 36 of 1933. This
dealt with actions by moneylenders in respect of money lent.
[314]
No. 9 of 1934. This
dealt with actions by workmen for compensation for injuries arising out of and
in the course of their employment.
[315]
No. 46 of 1947. This
dealt with actions against carriers or ships for loss or damage.
[316]
56 & 57 Vic, c.61. This
was repealed by the Public Authorities (Judicial Proceedings) Act 1954.
[317] Dáil Debates, volume
147, December 15 1954, Statute of Limitations Bill, 1954— First stage.
[318]
Dáil Debates, volume 154,
March 1 1956, Statute of Limitations Bill, 1954 - Second Stage; volume
160, November 14 1956, Committee Stage; volume 160, November 15 1956, Committee
Stage (resumed); volume 160, December 12 1956, Report and Final Stages.
[319]
Seanad Debates, volume 47,
January 16 1957, Statute of Limitations Bill 1954 – Second Stage.
[320]
Seanad Debates, volume 47,
January 16 1957, Statute of Limitations Bill, 1954 - Referred to Special
Committee; volume 47, February 27 1957, Report of Special Committee;
volume 47, February 27 1957, Report and Final Stages.
[321]
Section 1(2), Statute of
Limitations 1957.
[322]
Dáil Debates, volume 154,
March 1 1956, Statute of Limitations Bill, 1954 - Second Stage at 1128.
[323]
Seanad Debates volume 47,
January 16 1957, Statute of Limitations Bill 1954 – Second Stage at
56. See also Seanad Debates, volumber 47, January 16 1957, Statute of Limitations
Bill, 1954 - Referred to Special Committee. Senators Cox, Crosbie, Harold
Douglas, McCrea, Ó Buachalla, Ó Ciosáin, O'Connell, Stanford and Walsh were
appointed to the Special Committee (volume 47, January 16 1957, Report of
Committee of Selection).
[324]
Seanad Debates, volume 47,
January 16 1957, Statute of Limitations Bill 1954 – Second Stage at 58.
[325]
Ibid at 60.
[326]
Ibid at 61.
[327]
Inserted by section 38(1) of
the Defamation Act 2009. Previously, a three year limitation
period applied to actions in respect of slander and a six-year limitation
period applied to actions in respect of libel. The one year limitation period
introduced by the 2009 Act may be extended to two years on certain conditions.
[328]
This applies only to actions
“claiming damages in respect of personal injuries to a person caused by
negligence, nuisance or breach of duty (whether the duty exists by virtue of a
contract or of a provision made by or under a statute or independently of any
contract or any such provision).” See section 3(1), Statute of Limitations
(Amendment) Act 1991, as amended by section 7, Civil Liability and
Courts Act 2004.
[329]
Liability for Defective Products
Act 1991.
[330]
Arising from the changes made
by Part 10 of the Land and Conveyancing Law Reform Act 2009, a mortgage
will in future no longer be part of the title to land.
[331]
Dockray “Why do we need Adverse
Possession” [1985] Conv 272.
[332]
Section 11(2)(a), Statute of
Limitations 1957.
[333]
Oireachtas Debates, Dáil Eireann,
volume 154, March 01 1956, Statute of Limitations Bill 1954 – Second Stage
at 1136.
[334]
Section 20, An Act to amend
the Procedure of the Superior Courts of Common Law in Ireland, 16° and 17°
Victoria, c.113 (August 20 1853).
[335]
Section 11(2) (a), Statute
of Limitations 1957.
[336]
Section 11(2) (c), Statute
of Limitations 1957.
[337]
This is subject to exceptions
in the case of disability, fraud and mistake. See sections 47-72, Statute of
Limitations 1957.
[338]
Dáil Debates vol. 154 (March
01 1956), Statute of Limitations Bill 1954 – Second Stage at 1136.
[339]
Ibid at 1136.
[340]
Ibid at 1136.
[341]
McDonald Irish Law of
Defamation (1987) at 238.
[342]
Seanad Debates vol. 47
(January 16 1957), Statute of Limitations Bill 1954 – Second Stage at
57.
[343]
Ibid at 63.
[344]
See Quinn v Wilson (1850)
13 ILR 381, cited in McDonald Irish Law of Defamation (1987) at
238.
[345]
See Law Reform Commission Consultation
Paper on the Civil Law of Defamation (March 1991).
[346]
Law Reform Commission Report
on the Civil Law of Defamation (LRC 38-1991). See also Law Reform
Commission Report on the Crime of Libel (LRC 41-1991).
[347]
Law Reform Commission Report
on the Civil Law of Defamation (LRC 38-1991) at paragraph 13.1.
[348]
Ibid at paragraph 13.1.
[349]
Law Reform Commission Report
on the Civil Law of Defamation (LRC 38-1991) at paragraph 13.1. The
Commission further recommended that in the case of an action for a declaratory
judgment, the limitation period should be one year from the date of accrual. Ibid.
[350]
Ibid at paragraph 13.1.
[351]
Report of the Legal
Advisory Group on Defamation (March 2003), available at www.justice.ie.
[352]
Report of the Legal
Advisory Group on Defamation (March 2003) at § 53-56.
[353]
Ibid at § 53.
[354]
Ibid at § 53. The
Report notes that in New Zealand, the limitation period is two years whereas in
New South Wales and the United Kingdom it is one year.
[355]
Ibid at § 53.
[356]
Report of the Legal
Advisory Group on Defamation (March 2003) at § 53.
[357]
Ibid at § 53.
[358]
Ibid at § 56.
[359]
Ibid at § 53.
[360]
This limitation period applied
to proceedings for defamation (section 37(1)) and actions claiming damages for slander
of title, slander of goods or other malicious falsehood (section 37(2)).
[361]
Section 37(1) of the General
Scheme of a Defamation Bill.
[362]
See ibid at section
37(2).
[363]
Report of the Legal
Advisory Group on Defamation (March 2003) at § 53.
[364]
Report of the Legal
Advisory Group on Defamation (March 2003) at § 56.
[365]
Ibid at 42,
Recommendation 18.
[366]
Ibid at § 53.
[367]
See section 38(1) (a), Defamation
Act 2009. Section 6 of the 2009 Act provides that the tort of libel
and the tort of slander shall cease to exist and shall instead be referred to
as the tort of defamation.
[368]
Section 11(3B), Statute of
Limitations 1957, as inserted by section 38(1) (b), Defamation
Act 2009.
[369]
Section 11(2) (b), Statute
of Limitations 1957, as amended by section 38(1)(a), Defamation Act
2009.
[370]
Section 49(3), Statute of
Limitations 1957, as amended by section 38(2), Defamation Act 2009.
[371]
Oireachtas Debates, Dáil
Eireann, volume 154, March 01 1956, Statute of Limitations Bill 1954 –
Second Stage at 1136.
[372]
Section 11(2)(b), Statute of
Limitations 1957, as enacted. “Personal injuries” were defined in
section 2(1) so as to include any disease and any impairment of a person's
physical or mental condition.
[373]
Before the repeal of the Public
Authorities Act 1893, the limitation period was six months from the act,
neglect or default of the public authority. At the time of the enactment
of the Statute of Limitations 1957, the limitation period was four years from
the date the cause of action arises irrespective of the date of such act,
neglect or default.
[374]
Oireachtas Debates, Dáil
Eireann, volume 154, March 01 1956, Statute of Limitations Bill 1954 –
Second Stage at 1136.
[375]
See section 3(6), Fatal Injuries
Act 1956; repealed by the Civil Liability Act 1961, section 48(6) of
which set the same limitation period for fatal injuries actions.
[376]
[1980] IR 269.
[377]
[1980] IR 269, 288.
[378]
[1984] IR 36, 89.
[379]
Brady v Donegal County Council [1989]
ILRM 282.
[380]
Statute of Limitations
(Amendment) Act 1991.
[381]
Section 3(1), Statute of
Limitations (Amendment) Act 1991.
[382]
Section 7(a), Civil Liability and Courts Act 2004 was commenced on March
31 2005. Transitional cases are governed by section 5A into the 1991
Act, as inserted by section 7(d) of the 2004 Act. A short stop applies
under section 7 to actions where the relevant date (i.e. date of accrual or
date of knowledge, whichever is later) falls before 31 March 2005. Thus,
the limitation period is two years from the date of commencement or three years
from the relevant date (i.e. date of knowledge or accrual), whichever occurs
first.
[383]
Section 3, Statute of
Limitations (Amendment) Act 1991, as amended by section 7(a), Civil
Liability and Courts Act 2004.
[384]
Binchy “The Impact of the New
Act on Tort Law” in Civil Liability and Courts Act 2004: Implications for
Personal Injuries Litigation 47 (Craven & Binchy eds., Dublin:
Firstlaw, 2005). See further Seanad Debates, March 11, 2004, Col. 1833.
[385]
The Personal Injuries Assessment
Board Act 2003 was commenced on 13 April 2004: see the Personal Injuries
Assessment Board Act 2003 (Commencement) Order 2004 (S.I. No. 155 of
2004). The 2003 Act was amended by the Personal Injuries Assessment Board
(Amendment) Act 2007.
[386]
Section 12(1), Personal Injuries
Assessment Board Act 2003.
[387]
Section 12(2).
[388]
Section 12(5).
[389]
Section 50.
[390]
Rule 3(3), Personal Injuries
Assessment Board Rules, available at http://www.piab.ie/rules.html.
[391]
Ibid at Rule
3(1)(a),(b) and (c).
[392]
Ibid at Rule 3(2);
section 22, Personal Injuries Assessment Board Act 2003 (No. 43 of
2003).
[393]
Section 13, Personal Injuries
Assessment Board Act 2003.
[394]
Personal Injuries Assessment Board Annual
Report 2006 (PRN: A7/1009, June 2007) at 4.
[395]
Section 14(2), Personal Injuries
Assessment Board Act 2003.
[396]
Ibid at section 14(1).
[397]
Ibid at section 17.
[398]
Ibid at section 49(1).
[399]
Ibid at section 49(2)
and (3).
[400]
Personal Injuries Assessment Board Annual
Report 2006 (PRN: A7/1009, June 2007) at 4.
[401]
Section 15, Personal Injuries
Assessment Board Act 2003.
[402]
Ibid at sections
49(4)-(6).
[403]
Ibid at section 32.
[404]
Ibid at sections 35
and 36.
[405]
Section 50, Personal Injuries
Assessment Board Act 2003.
[406]
Section 13(2), Sale of Goods and
Supply of Services Act 1980. This does not apply to a contract in
which the buyer is a person whose business it is to deal in motor vehicles.
[407]
Section 13(7), Sale of Goods and
Supply of Services Act 1980. This person may maintain an action for damages
against the seller in respect of the breach as if that person were the buyer of
the motor vehicle.
[408]
Section 11(2)(d), Statute of
Limitations 1957, inserted by section 13(8), Sale of Goods and Supply of
Services Act 1980 .
[409]
Section 3(3), Statute of
Limitations (Amendment) Act 1991.
[410]
Section 7, Liability for Defective Products Act 1991. This
implemented Article 10 of the 1985 EC Directive on Liability for Defective
Products, 85/374/EEC.
[411]
Section 7(5), Liability for
Defective Products Act 1991.
[412]
Section 7(3).
[413]
Section 48A(1), Statute of
Limitations 1957, inserted by section 3, Statute of Limitations
(Amendment) Act 2000.
[414]
Section 48A(1), Statute of
Limitations 1957.
[415]
See Noctor The Statute of
Limitations (Amendment) Act 2000: Implications for Parties to Actions Regarding
Child Sexual Abuse (2001) 19 ILT 126.
[416]
Section 48A(2)(7), Statute of
Limitations 1957, inserted by section 2, Statute of Limitations
(Amendment) Act 2000.
[417]
See section 9(2) of the Age of
Majority Act 1985: “This Act shall come into operation on the 1st day of
March, 1985”.
[418]
Section 48A(2)(7), Statute of
Limitations 1957.
[419]
Section 3, Statute of Limitations
(Amendment) Act 2000: "Nothing in section 48(A) of the Statute of Limitations
1957 (inserted by section 2 of this Act), shall be construed as affecting any
power of a court to dismiss an action on the ground of there being such delay
between the accrual of the cause of action and the bringing of the action as,
in the interests of justice, would warrant its dismissal".
[420]
Section 11(2), Statute of Limitations
1957.
[421]
The ‘date of knowledge’ is defined
in section 2 of the Statute of Limitations (Amendment) Act 1991.
[422]
See Law Reform Commission Consultation
Paper: The Law of Limitations of Actions arising from Non-Sexual Abuse of
Children (CP16-2000, September 2000), at 12-15.
[423]
Ibid at 12. See also Murphy The
Admissibility of Repressed Memories of Childhood Sexual Abuse [2003] COLR
1.
[424]
See A v Hoare [2008] 2 WLR 311; A
v Hoare (No. 2) [2008] EWHC 1573 (QB).
[425]
Jan O’Sullivan TD, Meeting of the
Select Committee on Justice, Equality, Defence and Women’s Rights, 20
October 1999.
[426]
Jim Higgins TD, Meeting of the Select
Committee on Justice, Equality, Defence and Women’s Rights, 20 October
1999.
[427]
Minister for Justice John
O’Donoghue, Meeting of the Select Committee on Justice, Equality,
Defence and Women’s Rights, 20 October 1999. He further stated that
“Questions arise from the wide range of activities which, at one end of the
scale, would have been classes, until not too long ago, as reasonable corporal
punishment and, at the other end of the scale, would be unacceptable by any
standards but may not affect the ability of the person to take legal
proceedings at a given time. The Government’s view is that it needs to
obtain the advice of experts on whether, and to what extent, other forms of
abuse are likely to have the inhibiting effect on the victims, long into adult
life, that is known to occur in many cases of childhood sexual abuse.”
[428]
Law Reform Commission Consultation
Paper: The Law of Limitations of Actions arising from Non-Sexual Abuse of
Children (LRC CP16-2000) at 2.
[429]
Ibid at 89.
[430]
Law Reform Commission Consultation
Paper: The Law of Limitations of Actions arising from Non-Sexual Abuse of
Children (LRC CP16-2000) at 80.
[431]
Section 11(2), Statute of Limitations
1957.
[432]
Law Reform Commission The Law
relating to the Liability of Builders, Vendors, and Lessors for the Quality and
Fitness of Premises (Working Paper No 1 1977).
[433]
Law Reform Commission Report on
Defective Premises (LRC 3-1982) at paragraph 12.
[434]
Law Reform Commission The Law
relating to the Liability of Builders, Vendors, and Lessors for the Quality and
Fitness of Premises (Working Paper No 1 1977) appendix 1, section 1(8) of
the General Scheme of a Defective Premises Bill.
[435]
Law Reform Commission Report on
Defective Premises (LRC 3-1982) at paragraph 12. This was
recommended following the receipt of submissions from the Dublin Solicitors’
Bar Association as to latent defects.
[436]
Law Reform Commission Report on
Defective Premises (LRC 3-1982); section 8(a), Defective Premises Bill
1982, appendix B.
[437]
Law Reform Commission Report on
Defective Premises (LRC 3-1982) at paragraph 12. The Construction
Industry Federation made the suggestion of the long-stop.
[438]
Section 3(1), Statute of Limitations
(Amendment) Act 1991.
[439]
Binchy “The Impact of the New Act on Tort
Law” in Civil Liability and Courts Act 2004: Implications for Personal
Injuries Litigation (Craven & Binchy eds., Dublin: Firstlaw, 2005) at
47.
[440]
Ibid.
[441]
Seanad Debates, 3 June 2004, The
Civil Liability and Courts Bill - Committee Stage.
[442]
Ibid.
[443]
Select Committee on Justice,
Equality, Defence and Women’s Rights, Dáil Eireann, 6 July 2004.
[444]
Binchy “The Impact of the New Act on
Tort Law” in Civil Liability and Courts Act 2004: Implications for Personal
Injuries Litigation (Craven & Binchy eds., Dublin: Firstlaw, 2005) at
47.
[445]
Binchy “The Impact of the New Act on
Tort Law” in Civil Liability and Courts Act 2004: Implications for Personal
Injuries Litigation (Craven & Binchy eds., Dublin: Firstlaw, 2005) at
48.
[446]
Select Committee on Justice,
Equality, Defence and Women’s Rights, Dáil Eireann, 6 July 2004.
[447]
Binchy “The Impact of the New Act on
Tort Law” in Civil Liability and Courts Act 2004: Implications for Personal
Injuries Litigation (Craven & Binchy eds., Dublin: Firstlaw, 2005 at
48.
[448]
Tate v Minister for Social Welfare [1995] 1 IR 418.
[449]
McDonnell v Ireland [1998] 1 IR
134.
[450]
McDonnell v Ireland [1998] 1 IR
134, 139.
[451]
Hamilton CJ and O’Flaherty J.
concurred. Barrington and Barr JJ. were more cautious - see McDonnell v Ireland [1998] 1 IR 134, 147 and
165.
[452]
McDonnell v Ireland [1998] 1 IR
134, 156.
[453]
Ibid at 59.
[454]
Ibid at 159.
[455]
Tuohy v Courtney [1994] 3 IR 1, 48.
[456]
McDonnell v Ireland [1998] 1 IR
134, 160.
[457]
Sinnott v The Minister for Education
& Ors [2001] 2 IR 545.
[458]
See sections 11 and 12, Statute of
Limitations 1957.
[459]
Brady & Kerr The Limitation of Actions (2nd ed 1994) at
46.
[460]
Section 11(7)(b), Statute of
Limitations 1957.
[461]
Oireachtas Debates, Dáil Eireann, volume
154, 1 March 1956, Statute of Limitations Bill 1954 – Second Stage at
1137.
[462]
Section 11(7)(a), Statute of
Limitations 1957.
[463]
Oireachtas Debates, Dáil Eireann, volume
154, 1 March 1956, Statute of Limitations Bill 1954 – Second Stage at
1137.
[464]
Section 4(1), Tortfeasors Act 1951.
The jury is obliged to have regard to all the circumstances and the
extent to which several defendants were respectively responsible for the
injury.
[465]
The jury may confer an indemnity on any one or more of the defendants: section
2(3), Statute of Limitations 1957.
[466]
Section 4(3), Tortfeasors Act
1951.
[467]
Section 2(3), Statute of Limitations
1957.
[468]
Section 13(2), Sale of Goods and Supply
of Services Act 1980.
[469]
Ibid at section 13(7).
[470]
Section 11(2)(d), Statute of
Limitations 1957, inserted by section 13(8), Sale of Goods and Supply of
Services Act 1980.
[471]
Section 11(1) (a) and (b), Statute
of Limitations 1957.
[472]
Ibid at section 11(1)(c).
[473]
Ibid at section 11(8)(a). The six-year limitation period does not
apply to admiralty actions where the jurisdiction of the High Court is
enforceable in rem or against the ship. Ibid at section
11(8)(b).
[474]
Oireachtas Debates, Dáil Eireann, volume 154, 1 March 1956, Statute of
Limitations Bill 1954 – Second Stage at 1135.
[475]
Section 11(1)(e), Statute of
Limitations 1957.
[476]
Oireachtas Debates, Dáil Eireann, volume
154, March 01 1956, Statute of Limitations Bill 1954 – Second Stage at
1135.
[477]
Under section 297(1) of the Companies
Act 1963. See Southern Mineral Oil Ltd (in liquidation) v Coonev [1997]
3 IR 549, 561.
[478]
See section 11(7), Statute of
Limitations 1957.
[479]
Under sections 14(2) or 125 of the Companies
Consolidation Act 1908 - now repealed; see section 11(5)(c), Statute of
Limitations 1957.
[480]
See section 11(3), Statute of
Limitations 1957.
[481]
Section 27, Local Government (Planning and Development) Act 1976.
[482]
See Ellis v Nolan (McWilliam J) 6
May 1983.
[483]
Section 11(1)(d), Statute of Limitations
1957.
[484]
Ibid at section 11(5)(b).
[485]
Agromet & Motoimport v Maulden
Engineering Co. Ltd [1985] 1 WLR 762. See Brady and Kerr The
Limitation of Actions (2nd ed 1994) at 200.
[486]
Section.
[487]
Oireachtas Debates, Dáil Eireann, volume
154, 1 March 1956, Statute of Limitations Bill 1954 – Second Stage at
1136.
[488]
This was recognised over 50 years ago in
1958 (the year after the 1957 Statute was enacted and just before it
came into operation in 1959) in Halsbury’s Laws of England 3rd
(Simonds) edition, vol.24, p.226, fn (k).
[489]
See also the related equitable concepts of
laches (delay) and acquiescence, discussed at paragraphs 2.196ff, below.
[490]
[1977] 3 All ER 129.
[491]
[1996] 1WLR 1378.
[492]
See paragraphs 2.196ff, below.
[493]
Brady and Kerr The Limitation of
Actions (2nd ed 1994) at 200.
[494]
Section 11(5), Statute of
Limitations 1957.
[495]
Ibid at section 11(5)(a).
[496]
These actions are subject to a six year
limitation period under sections 27 and 28, Statute of Limitations 1957.
[497]
These actions are subject to a twelve-year
limitation period under section 36(1)(a), Statute of Limitations 1957, running
from the date when the right to receive the money accrued.
[498]
See section 37,Statute of Limitations
1957.
[499]
These actions are subject to a twelve year limitation period under section 31, Statute
of Limitations 1957.
[500]
Oireachtas Debates, Seanad Eireann,
volume 47, January 16 1957, Statute of Limitations Bill 1954 – Second Stage
at 63.
[501]
Law Revision Committee Fifth Interim
Report: Statutes of Limitation (Cmd. 5334, 1936) at 9.
[502]
Ibid at 9.
[503]
See section 14(2), Companies
(Consolidation) Act 1908 (8 Edw. 7, c. 69): “all money payable by
any member to the company under the memorandum or articles shall be a debt due
from him to the company, and in England and Ireland be of the nature of a
speciality debt.”
[504]
Ibid at section 125: “The
liability of a contributory shall create a debt (in England and Ireland of the
nature of a specialty) accruing due from him at the time when his liability
commenced, but payable at the times when calls are made for enforcing the
liability.” For a definition of the term “contributory”, see ibid at
section 124 and section 208, Companies Act 1963.
[505]
Section 3 & Schedule 12, Companies
Act 1963.
[506]
Ibid at sections 25(2) and
(3), 209(1) and (2) respectively.
[507]
Section 11(6)(a), Statute of
Limitations 1957. The date on which a judgment is enforceable is the date
on which it is pronounced, rather than the date on which judgment is
entered. See e.g. Holtby v Hodgson (1890) 24 QBD 103; Hodgins v
Harris Investors Ltd [1929] 1 DLR 189; Fontaine v Heffner (1983) 144
DLR (3d) 572. See further Brady and Kerr The Limitation of Actions (2nd
ed 1994) at 199.
[508]
Roddy v Atkinson [1949] 3 DLR 328.
See further Brady and Kerr The Limitation of Actions (2nd ed
1994) at 199.
[509] Section 11(6)(b), Statute of
Limitations 1957.
[510]
Oireachtas Debates, Dáil Eireann, volume
154, 1 March 1956, Statute of Limitations Bill 1954 – Second Stage at
1138.
[511]
Section 12(1), Statute of Limitations
1957.
[512]
Ibid at section 26.
[513]
Section 12(2), Statute of Limitations
1957.
[514]
Oireachtas Debates, Dáil Eireann, volume
154, 1 March 1956, Statute of Limitations Bill 1954 – Second Stage at
1138.
[515]
Section 11(8), Statute of Limitations
1957.
[517]
Section 5 and Schedule (Part 3), Civil Liability Act 1961.
[518]
Section 46(2), Civil Liability Act 1961.
[519]
Ibid at section 46(3).
[520]
Ibid at section 46(3).
[521]
Section 46(2), Civil Liability Act 1961.
[522]
Ibid at section 11(1).
[523]
Ibid at section 21(1).
[524]
Ibid at section 31. See further Keane
v Western Health Board [2006] IEHC 370.
[525]
See section 30(1), Value-Added Tax Act
1972, as amended by section 191, Finance Act 1992.
[526]
See section 30(3), Value-Added Tax Act
1972, as amended by section 20, Value-Added Tax (Amendment) Act 1978; section
191, Finance Act 1992; section 114(a), Finance Act 1998.
[527]
Such an estimation may be carried out
under sections 22 and 23 of the VAT Act 1972, as amended.
[528]
See section 30(4)(a)(i) and (ii), VAT
1972, as amended by section 191, Finance Act 1992; section 115, Finance
Act 1998; section 129, Finance Act 2003; section 119, Capital
Acquisitions Tax Consolidation Act 2003.
[529]
Ibid.
[530] See section 20(4), VAT Act
1972, as amended by section 114 of the Finance Act 1998 and section
124 of the Finance Act 2003. See also section 20(5)(a)-(f), Value
Added Tax Act 1972, as inserted by section 184, Finance Act 1992 and
as amended by section 114(b), Finance Act 1998, section 116, Finance
Act 2000, section 124, Finance Act 2003
[531] As
amended by the Malicious Injuries (Amendment) Act 1986 and the Post
and Telecommunications Act 1983.
[532]
Section 5(1), Malicious Injuries Act
1981, as amended by section 2(1), Malicious Injuries (Amendment) Act
1986.
[533]
Section 8(1), Malicious Injuries Act
1981.
[534]
Ibid at section 23(2).
[535]
Ibid at section 23(1).
[536]
Ibid at section 23(3).
[537]
Section 49, Registration of Title Act
1964.
[538]
“State authorities” include a
Minister of State, the Commission of Public Works in Ireland, the Irish Land
Commission, the Revenue Commissioners, or the Attorney General. Section 2(1), Statute
of Limitations 1957.
[539]
"Foreshore" is defined so as to
include the bed and shore, below the line of high water of ordinary or medium
tides, of the sea and of every tidal river and tidal estuary and of every
channel, creek, and bay of the sea or of any such river or estuary. Section
2(1), Statute of Limitations 1957.
[540]
Section 13(2)(a), Statute of
Limitations 1957.
[541]
Ibid at section 13(1)(a).
[542]
Oireachtas Debates, Dáil Eireann, volume 154, 1 March 1956, Statute of
Limitations Bill 1954 – Second Stage at 1138.
[543] See
section 1, Vendor and Purchaser Act 1874 (37 & 38 Vict.,
c.78).
[544]
Oireachtas Debates, Seanad Eireann, volume
47, 16 January 1957, Statute of Limitations Bill 1954 – Second Stage at
63.
[545]
Section 13(1)(b), Statute of
Limitations 1957.
[546]
Oireachtas Debates, Dáil Eireann, volume
154, 1 March 1956, Statute of Limitations Bill 1954 – Second Stage at
1139.
[547]
Oireachtas Debates, Seanad Eireann, volume
47, 16 January 1957, Statute of Limitations Bill 1954 – Second Stage at
67.
[548]
Section 13(1)(c), Statute of
Limitations 1957.
[549]
The date of commencement of the Statute
of Limitations 1957.
[550]
See further Oireachtas Debates, Dáil
Eireann, volume 154, 1 March 1956, Statute of Limitations Bill 1954 – Second
Stage at 1139.
[551]
Section 25(1), Statute of Limitations
1957.
[552]
Ibid at section 25(1).
[553]
Ibid at section 26(1).
[554]
Ibid at section 27(1), Statute
of Limitations 1957. Rentcharges are annuities or periodic sums of
money charged upon or payable out of land. See ibid at section 2(1).
This limitation period does not apply to proceedings under section 37, Land
Act 1927 (i.e. proceedings for an order for possession of holdings which
are liable to be sold by the Land Commission), as amended by section 19, Land
Act 1953. See section 27(2), Statute of Limitations 1957.
[555]
Section 28, Statute of Limitations
1957. Conventional rent is a rent payable under a lease or contract
of tenancy. Ibid at section 2(1).
[556]
Ibid at section 31.
[557]
Ibid at sections 27(1), 28 and 31.
[558]
Ibid at section 29.
[559]
See Andrew Lyall Land Law in
Ireland (2nd ed 2000) at 243-4.
[560]
See section 11(2), Succession Act
1965.
[561]
Section 28, Land Act 1933, as
amended by section 17, Land Act 1936.
[562]
Section 29(1), Statute of Limitations
1957.
[563]
Ibid at section 29(2).
[564]
See the Irish Land Commission (Dissolution)
Act 1992 (Commencement) Order 1999 (SI No. 75 of 1999). .
[565]
See sections 3 and 4, Irish Land
Commission (Dissolution) Act 1992.
[566]
The 2009 Act implemented the key recommendations in the Commission’s Report
on Reform and Modernisation of Land Law and Conveyancing Law (LRC-74
2005).
[567]
At the time of writing (July 2009), no
Commencement Order has yet been made for the 2009 Act.
[568]
In theory, it also includes the right to
foreclose. The mortgagee’s right to foreclose traditionally involved obtaining
a court order destroying the mortgagor’s right of redemption, thereby leaving
the mortgagee as the owner of the land. Irish courts determined over a
century ago to stop granting foreclosure, and have since preferred to grant an
order for the sale of land. The Commission recommended the abolition of the
remedy of foreclosure in its Consultation Paper on Reform and Modernisation
of Land Law and Conveyancing Law (LRC CP 34-2004), stating, at paragraph
9.16: “The time has come to consign the remedy to history.” Section 96(2)
of the Land and Conveyancing Law Reform Act 2009 abolishes foreclosure.
[569]
Pearce & Mee Essential Law Texts:
Land Law (2nd ed Round Hall: Sweet & Maxwell 2000) at 267.
[570]
See also the Financial Regulator’s 2009 Code
of Practice on Mortgage Arrears setting out a moratorium on bringing
proceedings for possession.
[571]
This comes within the definition provided
in section 2(1) of “actions to recover land” and is, therefore, subject to the
general, 12-year limitation period provided in section 13(2), Statute of
Limitations 1957.
[572]
Section 32(1), Statute of
Limitations 1957.
[573]
Section 32(2)(a), Statute of
Limitations 1957. This is subject to section 32(2)(b) which governs
the situation where the right of action first accrued to a State authority but
is being taken by a person other than the State authority.
[574]
Section 36(1)(a), Statute of
Limitations 1957. This does not apply to money secured by a mortgage or
charge on a ship. The limitation period runs from the date when the right
to receive the money accrued.
[575]
Section 36(1)(b), Statute of
Limitations 1957.
[576]
Section 37(1), Statute of Limitations
1957. This is subject to the qualifications contained in subsections (2)
and (3) of section 37.
[577]
Section 40, Statute of Limitations
1957.
[578]
Section 42, Statute of Limitations
1957. See further section 26 of the Agricultural Credit Act 1947.
[579]
Law Reform Commission Consultation
Paper on Reform and Modernisation of Land Law and Conveyancing Law (LRC
CP-34, 2004) paragraph 9.14.
[580]
At the time of writing (July 2009), no
Commencement Order has yet been made for the 2009 Act.
[581]
These provisions, based on section 99 of
the Draft Land Law and Conveyancing Reform Bill contained in the Law
Reform Commission’s Report on Reform and Modernisation of Land Law and
Conveyancing Law (LRC 74-2005), are intended to ensure that lenders’
remedies to enforce security are exercised only when appropriate. Oireachtas
Debates, Seanad Éireann, volume 184, June 20 2006, Land and Conveyancing Law
Reform Bill 2006 – Second Stage.
[582]
Law Reform Commission Consultation
Paper on Reform and Modernisation of Land Law and Conveyancing Law (2004)
at paragraph 9.13.
[583]
Browne v Ryan [1901] 2 IR 653, 676
(Walker LJ), cited in Lyall Land Law in Ireland (2nd ed Round
Hall: Sweet & Maxwell 2000) at 812-3.
[584]
This exception carried on from the Real
Property Limitation Acts. See Oireachtas Debates, Dáil Eireann, volume 154,
1 March 1956, Statute of Limitations – Second Stage at 1145.
[585]
Section 54, Statute of Limitations 1957.
[586]
Ibid at section 64.
[587]
See ibid at section 34(1)(b);
Pearce & Mee Essential Law Texts: Land Law (2nd ed Round
Hall: Sweet & Maxwell 2000) at 259-60; Lyall Land Law in Ireland (2nd
ed Round Hall: Sweet & Maxwell 2000) at 778-79; Wylie Irish Land Law (3rd
ed Butterworths 1997) at 698-99.
[588]
Section 34(2), Statute of Limitations
1957.
[589]
At the time of writing (July 2009), no
Commencement Order has yet been made for the 2009 Act.
[590]
Law Reform Commission Consultation
Paper on Reform and Modernisation of Land Law and Conveyancing Law (LRC CP
34-2004) at paragraph 9.05.
[591]
Law Reform Commission Report on Reform
and Modernisation of Land Law and Conveyancing Law (LRC 74-2005) at 252.
[592]
Oireachtas Debates, Dáil Eireann, volume
154, 1 March 1956, Statute of Limitations Bill 1954 – Second Stage at
1139. Sections 14-17 consolidate statutory provisions existing prior to the
enactment of the Statute of Limitations 1957.
[593]
Section 18(1), Statute of Limitations
1957. Sections 18(1), (2) and (3) put existing rules of law into statutory
form, while section 18(4) alters the law as it stood prior to the commencement
of the Statute in 1959.
[594]
Section 18(2), Statute of Limitations
1957.
[595]
Oireachtas Debates, Dáil Eireann, volume 154,
1 March 1956, Statute of Limitations Bill 1954 – Second Stage at
1139-1140.
[596]
Section 18(4), Statute of Limitations
1957.
[597]
Section 18(3), Statute of Limitations
1957.
[598]
Section 51, Statute of Limitations
1957.
[599]
See sections 61-70, Statute of
Limitations 1957.
[600]
J.A. Pye (Oxford) Ltd v United Kingdom, App no.
44302/02, judgment of 30 August 2007 at § 78.
[601]
See ibid at §§ 50-51.
[602]
Law Reform Commission Report on Land
Law and Conveyancing Law: (1) General Proposals (LRC 30-1989) at 26-27.
[603]
Third Programme of Law Reform 2008-2014,
Project 20.
[604]
The principal legislation in this area is
the Trustee Act 1893, as amended. The Commission has recommended that
the 1893 Act be replaced by a modern legislative code: see Law Reform
Commission Report on Trust Law: General Proposals (LRC 92 - 2008), which
includes a draft Trustee Bill.
[605]
Section 2(2)(c) was repealed by
section 5 of the Registration of Title Act 1964. Section 2(2)(d)
was amended by section 26 the Administration of Estates Act 1959,
and again by section 122 of the Registration of Title Act 1964.
[606]
Section 123(1), Succession Act 1965,
which replaces section 2(2)(d) of the Statute of Limitations 1957.
See further Sperin The Succession Act 1965 - A Commentary (3rd
ed 2003) at §791-794.
[607]
Section 43(1)(a), Statute of
Limitations 1957.
[608]
Section 43(1)(b), Statute of
Limitations 1957.
[609]
Section 43(2), Statute of
Limitations 1957.
[610]
Section 44, Statute of
Limitations 1957.
[611]
Brady and Kerr The Limitation of Actions
(2nd ed 1994) at 162.
[612]
See Law Reform Commission Report
on the Reform and Modernisation of Land Law and Conveyancing Law (LRC
74-2005) at 68-91.
[613]
At the time of writing (July 2009), no Commencement Order has yet been made for
the 2009 Act.
[614]
The Commission will examine these
consequential issues under its Third Programme of Law Reform 2008-2014,
Project 21.
[615]
The Act came into force on January 1,
1967: see the Succession Act 1965 (Commencement) Order 1966 (SI No.168
of 1966). Section 8 and the Second Schedule of the 1965 Act
repealed sections 2(2)(d), 22, 45 and 46 and the word “co-parceners” in section
21 of the Statute of Limitations 1957.
[616]
MDP and others v MD [1981]
ILRM 179.
[617]
Moynihan v Greensmyth [1977]
IR 55, 72 (SC).
[618]
Section 117(1), Succession Act
1965. See also section 117(1A), inserted by section 31 of the Status of
Children Act 1987.
[619]
Section 117(1), Succession Act 1965.
[620]
Section 117(6), Succession Act
1965, as enacted,
[621]
Amended by section 46 of the Family
Law (Divorce) Act 1996. This reduction was in line with the six-month
limitation period for applications by a former spouse under section 18 of the
1996 Act.
[622]
[1981] ILRM 179.
[623]
MDP and others v MD [1981] ILRM 179.
[624]
Law Reform Commission Report on
Land Law and Conveyancing Law: General Proposals (LRC-30, 1989) at
paragraph 45. The Commission cited the Supreme Court’s decision in O’Brien
v Keogh [1972] IR 144.
[625]
Law Reform Commission Report on
Land Law and Conveyancing Law: General Proposals (LRC-30, 1989), at
paragraphs 45-46.
[626]
Section 4, Inheritance (Provision
for Family and Dependants) Act 1975 (c. 63). See also ibid at
section 20, which prevents personal representatives from liability for having
distributed the estate before an order under section 2 of the Act was made.
[627]
Law Reform Commission Report on
Land Law and Conveyancing Law: General Proposals (LRC-30, 1989) at
paragraph 47. The Commission also recommended that the section 117 application
be extended to intestacies.
[628]
Wills “Section 117 - Out of Step
with the Times: A Critique of Section 117 of the Succession Act 1965 and
Comparison with the Inheritance (Provision for Family and Dependents) Act 1975
(UK)” (2001) 6(4) CPLJ 84.
[629]
O’B v S [1984] IR 316, 335
(SC).
[630]
Rojack v Taylor and Buchalter [2005] 1 IR 416, 426 (Quirke J).
[631]
Storan “Section 117 of the
Succession Act 1965: Another Means for the Courts to Rewrite a Will?” (2006)
11(4) CPLJ 82.
[632]
Sperin The Succession
Act 1965 and Related Legislation, A Commentary (3rd ed 2003) at 353, quoted with approval by
Quirke J. in Rojack v Taylor and Buchalter [2005] 1 IR 416, 426.
[633]
Law Reform Commission Report on
Land Law and Conveyancing Law: General Proposals (LRC-30, 1989) at
paragraph 47.
[634]
Rojack v Taylor and Buchalter [2005] 1 IR 416, 426 .
[635]
Hourican “Section 117 Claims:
Practice and Procedure and Matters to Bear in Mind” (2001) 6(3) CPLJ 62.
[636]
See section 127, Succession Act
1965.
[637]
MPD and others v MD [1981]
ILRM 179.
[638]
MPD and others v MD [1981]
ILRM 179.
[639]
MPD and others v MD [1981]
ILRM 179, citing the Supreme Court decision in Moynihan v Greensmyth [1977]
IR 55, 72.
[640]
See Brady & Kerr Limitation
of Actions in Ireland
[641]
Moynihan v Greensmyth [1977]
IR 55, 72. This case concerned the constitutionality of section 9(2)(b) of the Civil
Liability Act 1961, which sets a two-year limitation period for actions
surviving against the estate of a deceased person, to which the disability .
[642]
Moynihan v Greensmyth [1977]
IR 55, 72.
[643]
Law Reform Commission Report on
Land Law and Conveyancing Law: General Proposals (LRC-30, 1989) at
paragraph 47.
[644]
Section 111(1), Succession Act
1965.
[645]
Section 111(2), Succession Act
1965. This entitlement is known as the ‘legal right share’.
[646]
Section 45, Statute of
Limitations 1957, repealed and replaced by section 126, Succession Act
1965.
[647]
Section 115(4), Succession Act
1965.
[648]
Section 115(4), Succession Act
1965.
[649]
See JH v WJH (Keane J) 20 December
1979.
[650]
O’Dwyer v Keegan [1997] 1
ILRM 102.
[651]
Section 10(1) of the Family Law
(Divorce) Act 1996 provides that the marriage is “dissolved” on foot of a
decree of divorce.
[652]
See section 18(1), Family Law
(Divorce) Act 1996. The court must be satisfied that proper provision “in
the circumstances” was not made for the applicant (divorced) spouse during the
lifetime of the deceased (divorced) spouse, and to all the circumstances of the
case. See ibid at sections 18(3) and (4).
[653]
Section 18(1), Family Law
(Divorce) Act 1996.
[654]
Section 15A, Family Law Act 1995,
inserted by section 52(g) of the Family Law (Divorce) Act 1996.
Under section 14 of the Family Law Act 1995, a court may, when or
after granting a decree of judicial separation, make an order extinguishing the
share to which either of the spouses would otherwise be entitled in the estate
of the other spouse as a legal right or on intestacy under the Succession
Act 1965.
[655]
Section 18(2), Family Law
(Divorce) Act 1996. No application can be made, either, by spouses whose
rights are extinguished under the Judicial Separation and Family Law Reform
Act 1989.
[656]
Section 18(6), Family Law
(Divorce) Act 1996.
[657]
Section 18(7), Family Law
(Divorce) Act 1996.
[658]
Section 125, Succession Act 1965.
[659]
Section 125(1), Succession Act
1965. For the purpose of the Statute of Limitations 1957, this rule
applies whether or not the person was entering into possession as a personal
representative of the deceased person, or having entered, was subsequently
granted representation to the estate of the deceased person. See ibid at
section 125(2).
[660]
[1987] ILRM 582. But see Ruddy v
Gannon [1965] IR 283.
[661]
[1997] ILRM 522. See in particular
the judgment of Keane J. at 535. See also Sperin The Succession Act 1965 - A
Commentary (3rd ed 2003) at §§798-804.
[662] ‘Actio
personalis moritur cum persona’. See further Moynihan v Greensmyth [1977] IR 55, 67-8 (SC). A remedy could be pursued against the
estate of the deceased only where the deceased had appropriate property or the
proceeds or value of property belonging to another, and added it to his own
estate.
[663] See e.g. section 171, Road Traffic Act
1933; section 6, Fatal Injuries Act 1956; section 117, Road
Traffic Act 1961; section 7(1), Civil Liability Act 1961.
[664]
Section 7(1), Civil Liability Act
1961.
[665]
Section 48, Civil Liability Act 1961.
[666]
Drohan v Drohan [1984] ILRM
179; Gleeson v Feehan and Purcell (No. 2) [1997] ILRM 522 (SC).
[667]
Section 13(2), Statute of
Limitations 1957.
[668]
Gleeson v Feehan and Purcell (No. 2) [1997]
ILRM 522 (SC).
[669]
Section 45(2), Statute of
Limitations 1957, as amended by section 126(2), Succession Act 1965.
[670]
See section 126(2), Succession
Act 1965.
[671]
Section 45, Statute of
Limitations 1957, as amended by section 126, Succession Act 1965.
[672]
Section 126, Succession Act 1965.
[673]
As enacted, section 45 of the Statute
of Limitations 1957 referred only to the “personal estate” of the deceased.
The word “personal” was removed by section 126, Succession Act 1965 and
section 3 of the 1965 Act defines property to include both land (“real
property”) and other property such as goods (“personal property.”)
[674]
Section 45 of the Statute of
Limitations 1957, as amended, is expressly subject to section 71, which
provides for the postponement of the limitation period in cases of fraud.
[675]
Gleeson v Feehan and Purcell [1993]
2 IR 113 (Egan J).
[676]
Drohan v Drohan [1984] IR 311; Gleeson v Feehan and Purcell [1993]
2 IR 113.
[677]
Section 45(1), Statute of
Limitations 1957, as amended by section 126, Succession Act 1965.
[678]
Keating “Time Limits for a
Beneficiary or a Personal Representative to Commence Proceedings” (2004) 9(1)
CPLJ 2.
[679]
Gleeson v Feehan (No. 1) [1991]
ILRM 783. The executor’s authority arises under the will and not pursuant
to the grant of probate. The grant is merely confirmation of the
executor’s authority.
[680]
Gleeson v Feehan (No. 2) [1997] ILRM 522. Pending the grant of
representation, the estate vests in the President of the High Court and time
can run against the President for the purpose of the Statute. See Flack v
President of the High Court, High Court, 29 November 1983.
[681]
This is the position under section
14(2) of the Statute of Limitations 1957, which applies to actions to
recover the land of the deceased.
[682]
See further Keating “Time Limits for
a Beneficiary or a Personal Representative to Commence Proceedings” (2004) 9(1)
CPLJ 2.
[683] Section 62(1), Succession Act 1965.
Regard is to be had to the nature of the estate, the manner in which it
is required to be distributed and all other relevant circumstances. Ibid.
[684]
Re Tankard [1942] Ch 69.
[685]
Sections 62 and 126, Succession Act 1965.
These sections replaced sections 45 and 46 of the Statute of Limitations 1957, which were repealed by section 8 and
Schedule 2 of the Succession
Act 1965.
[686]
Section 62(1), Succession Act
1965.
[687]
Section 62(1), Succession Act
1965.
[688]
Keating “Time Limits for a
Beneficiary or a Personal Representative to Commence Proceedings” (2004) 9(1)
CPLJ 2.
[689]
Section 62(2), Succession Act
1965.
[690]
Section 46, Statute of Limitations
1957.
[691]
Section 8 and Second Schedule, Succession
Act 1965.
[692]
See section 71, Statute of Limitations
1957.
[693]
See Sperin The Succession Act 1965 - A
Commentary (3rd ed 2003) at § 811.
[694]
Keating “Time Limits for a
Beneficiary or a Personal Representative to Commence Proceedings” (2004) 9(1)
CPLJ 2.
[695]
See Hourican “The Running of Time in
Succession Law: Gleeson v Feehan and Purcell” (2000) 5(2) CPLJ 34.
[696]
Section 125, Succession Act 1965.
[697]
Law Reform Commission Report on
Land Law and Conveyancing: (7) Positive Covenants over Freehold Land and other
proposals (LRC 70-2003, March 2003) at paragraphs 6.31-6.38
[698]
Ibid at paragraphs 6.39-6.40.
[699]
Ibid at 56-75.
[700]
Ibid at paragraphs 6.25-6.26.
[701]
This would return the limitation
regime to a pre-Succession Act position. Law Reform Commission Report
on Land Law and Conveyancing: (7) Positive Covenants over Freehold Land and
other proposals (LRC 70-2003) at paragraph 6.43-6.45.
[702]
Law Reform Commission Report on
Land Law and Conveyancing: (7) Positive Covenants over Freehold Land and other
proposals (LRC 70-2003) at paragraph 6.42.
[703]
See Brady and Kerr The Limitation
of Actions (2nd ed 1994) at 151: “We see no good reason why a
squatter should benefit from a reduction in the limitation period because of
the death of the owner.”
[704]
Keating “Time Limits for a
Beneficiary or a Personal Representative to Commence Proceedings” (2004) 9(1)
CPLJ 2.
[705]
Ibid.
[706]
Section 6, Civil Liability Act 1961.
[707]
Repealed by section 2(1), Family Law
Act 1981. See Law Reform Commission The Law Relating to Breach of
Promise of Marriage (Working Paper No. 4–1978); Law Reform Commission First
Report on Family Law (LRC 1-1980).
[708]
Repealed by section 1(1), Family Law Act 1981. See Law Reform
Commission Criminal Conversion and the Enticement and Harbouring of a Spouse
(Working Paper No. 5, 1978); Law Reform Commission First Report on
Family Law (LRC 1-1980).
[709]
Repealed by section 1(1), Family Law
Act 1981. See Law Reform Commission Criminal Conversion and the
Enticement and Harbouring of a Spouse (Working Paper No. 5, 1978); Law
Reform Commission First Report on Family Law (LRC 1-1980).
[710]
Repealed by section 40, Social Welfare
(Occupational Injuries) Act 1966, which first introduced Occupational
Injuries Benefit in place of Workmen’s Compensation. The relevant provisions
are now contained in the Social Welfare Consolidation Act 2005.
[711]
The Commission recommended the abolition
of this action in its Working Paper on the Law Relating to Seduction and the
Enticement and Harbouring of a Child (WP 6 -1979); and in its First
Report on Family Law (LRC 1-1980). See further McMahon and Binchy Law of
Torts (3rd ed 2000) at §§ 33.24-33.26, questioning the
constitutionality of the tort.
[712]
This was abolished by section 39 of the Defamation
Act 2009 which amends sections 6, 7 and 8 of the Civil Liability Act
1961. A cause of action in defamation now survives the death of the person
in respect of whom a defamatory statement was made and it also survives the
death of the defamer. This follows the recommendations of the
Commission’s Report on the Civil Law of Defamation (LRC-38, 1991) at
paragraphs 13.3-13.7.
[713]
As defined in section 3, Statute of
Limitations (Amendment) Act 1991.
[714]
See section 4, Statute of
Limitations (Amendment) Act 1991, amended by section 7, Civil Liability
Act 1961.
[715]
Section 4(1), Statute of
Limitations (Amendment) Act 1991, as amended by section 7(b), Civil
Liability and Courts Act 2004.
[716]
Section 4(b), Statute of
Limitations (Amendment) Act 1991. This follows a recommendation of the
Commission: see Report on the Statute of Limitations: Claims in Respect of
Latent Personal Injuries (LRC 21-1987) at 50.
[717]
Section 48(1), Civil Liability
Act 1961. The 1961 Act repealed the Fatal Injuries Act 1956.
[718]
“Dependants” are defined in section
47, Civil Liability Act 1961, as amended by section 1, Civil
Liability (Amendment) Act 1996.
[719]
Section 6(1), Statute of
Limitations (Amendment) Act 1991; as amended by section 7(e), Civil
Liability and Courts Act 2004.
[720]
See section 3(6), Fatal Injuries
Act 1956; section 48(6) of the Civil Liability Act 1961;
section 6, Statute of Limitations (Amendment) Act 1991.
[721]
See section 3(1), Statute of
Limitations (Amendment) Act 1991, amended by section 7(a), Civil
Liability and Courts Act 2004.
[722]
Section 48(2), Civil Liability
Act 1961.
[723]
Section 48(3), Civil Liability
Act 1961.
[724]
Section 48(4), Civil Liability
Act 1961. The action is for the benefit of all of the
dependants, irrespective of whether it is taken by the personal representative
or all or any of the dependants.
[725]
Section 6, Statute of Limitations
(Amendment) Act 1991.
[726]
Section 8(1), Civil Liability Act
1961. There are, however, some ‘excepted’ causes of action, which
will not survive against the estate.
[727]
Section 9(2), Civil Liability Act
1961.
[728]
Section 9(1), Civil Liability Act
1961.
[729]
[1977] IR 55.
[730]
Moynihan v Greensmyth [1977]
IR 55, 64.
[731]
Moynihan v Greensmyth [1977]
IR 55, 64-65.
[732]
Oireachtas Debates, Dáil Eireann, volume
154, March 01 1956, Statute of Limitations Bill 1954 – Second Stage 113.
[733]
Section 11(9)(a), Statute of
Limitations 1957.
[734]
Section 11(9)(b), Statute of
Limitations 1957.
[735]
See sections 43, 44 and 45, Statute of
Limitations 1957.
[736]
See sections 13 and 34, Statute of
Limitations 1957.
[737]
Brady and Kerr suggest that this maxim
“might otherwise serve as a useful description of the raison d’être of
the Statute itself.” See The Limitation of Actions 2nd
ed, 1994) at 167.
[738]
Delany Equity and the Law of Trusts in
Ireland (3rd ed 2003) at 25.
[739]
Delany Equity and the Law of Trusts in
Ireland (3rd ed 2003) at 26.
[740]
See Brady and Kerr The Limitation of Actions (2nd ed, 1994)
at 168.
[741]
Murphy v Attorney General [1982] IR
241.
[742]
(29th ed) at 35. This definition was
also accepted in JH v WJH ( Keane J) 20 December 1979.
[743]
Murphy v The Attorney General [1982]
IR 241, 318.
[744]
Ibid at 318.
[745]
Alberta Law Reform Institute Limitations
(Report No. 55, 1989) at 23.
[746]
Ibid at 23.
[747]
Delany Equity and the Law of Trusts in
Ireland (3rd ed 2003) at 26.
[748]
Delany Equity and the Law of Trusts in
Ireland (3rd ed 2003) at 29.
[749]
McCausland v Young [1949] NI 49, 89
(Andrews LCJ), cited in Brady & Kerr The Limitation of Actions (2nd
ed 1994) at 169.
[750]
Delany Equity and the Law of Trusts in
Ireland (3rd ed 2003) at 31.
[751]
Delany Equity and the Law of Trusts in
Ireland (3rd ed 2003) at 27-8, citing Hampton v Minns [2002]
1 WLR 1, 33.
[752]
Keirse “The Law of Restitution
Reconsidered” (2006) 13(3) CLP 75.
[753]
Goff & Jones The Law of Restitution
(5th ed 1998) at 15.
[754]
Brady and Kerr The Limitation of
Actions (2nd ed 1994) at 203.
[755]
Section 72(1), Statute of Limitations
1957.
[756]
See Part IV (sections 74-80), Statute
of Limitations 1957.
[757]
As to the date of “commencement” of an
arbitration, see section 74, Statute of Limitations 1957.
[758]
Section 77, Statute of Limitations
1957.
[759]
Law Reform Commission Consultation
Paper on Alternative Dispute Resolution (July 2008) (LRC CP - 50 2008).
[760]
Hegarty v O'Loughran [1990] 1 IR 148, Finlay CJ effectively
overruling the decision of Carroll J in Morgan v Park Developments
[1983] ILRM 156.
[761]
Law Reform Commission Report on
The Statute of Limitations: Claims in respect of Latent Personal Injuries
(LRC 21-1987).
[762]
Section 6(1), Statute of Limitations
(Amendment) Act 1991,
[763]
Section 3(3), Statute of Limitations
(Amendment) Act 1991
[764]
Section 7, Liability for Defective Products Act 1991.
[765]
Such actions are taken under section 21(4)
of the Control of Dogs Act 1986, as amended.
[766]
See section 3(4), Statute of
Limitations (Amendment) Act 1991.
[767]
Section 49(1)(d), Statute of
Limitations 1957.
[768]
This Scheme was established by the
Construction Industry Federation and the Irish Home Builders Association, in
conjunction with the Department of the Environment, after publication of the
Law Reform Commission’s Working Paper on the Law Relating to the Liability
of Builders, Vendors and Lessors for the Quality and Fitness of Premises (LRC-WP1,
June 1977). See also the Commission’s Report on Defective Premises (LRC
3 - 1982), which acknowledged the non-statutory scheme but which also
recommended the enactment of a statutory framework for the duties discussed –
and which would have included limitation periods. No statutory scheme has been
enacted on foot of that Report, and the non-statutory HomeBond scheme remains
in place.
[769]
Defined as “any major defect in the
foundations of a dwelling or the load bearing part of its floors, walls and
roof or retaining walls necessary for its support which affects the structural
stability of the dwelling". This excludes minor structural defects and
other non-structural defects; defects consequent upon negligence other than
that of the HomeBond member or a sub-contractor; defects for which compensation
is provided by legislation or which is covered by insurance; and various other
minor defects.
[770]
HomeBond Scheme, rule 50(n).
[771]
Section 7(2)(b), Liability for
Defective Products Act 1991.
[772]
Section 11(2)(c), Statute of Limitations
1957 as amended by section 38(1)(a), Defamation Act 2009.
[773]
See section 11(3A), Statute of
Limitations 1957 as inserted by section 38(1)(b), Defamation Act 2009.
[774]
Section 11(3A), Statute of
Limitations 1957, inserted by section 38(1) (b), Defamation Act 2009.
[775]
Section 10, Statute of Limitations
1957.
[776]
Part III is divided into five chapters:
(I) Interpretation; (II) Disability; (III) Acknowledgement; (IV) Part Payment;
and (V) Fraud and Mistake.
[777]
Alberta Institute of Law Research and
Reform Limitations (Report for Discussion No. 4, September 1986) at 142.
[778]
See e.g. AB v The Minister for Justice,
Equality and Law Reform [2002] 1 IR 296, 305.
[779]
Section 24, Statute of Limitations
1957.
[780]
Law Reform Commission Report on Title
by Adverse Possession of Land (LRC 67 - 2002) at paragraph 1.03.
[781]
Ibid at paragraphs 1.04-1.11.
[782]
Section 49, Registration of Title Act
1964.
[783]
Ibid at section 49(2).
[784]
Ibid at section 49(3).
[785]
Sections 25(2) and 26(1), Statute of
Limitations 1957.
[786]
Ibid at section 25(2).
[787]
Section 25(2), Statute of Limitations
1957.
[788]
[1980] IR 289.
[789]
“Enactment” is defined in section 2(1) as
“an Act or a statutory instrument or any portion of an Act or statutory
instrument”; “Act is defined so as to include an Act of the Oireachtas.
[790]
The 2005 Act repealed the Interpretation
Act 1937. Section 11(h) of the 1937 Act contained a definition which
was to like effect as that contained in section 18(h) of the 2005 Act.
[791]
See Brady & Kerr The Limitation of
Actions (2nd ed Law Society 1994) at 28.
[792]
Poole v O’Sullivan [1993] ILRM 55.
[793]
Poole v. O’Sullivan [1993] ILRM 55,
57-58. See also Prittam Kaur v S. Russell & Sons Ltd. [1973]
QB 336, which was applied by the Supreme Court in DPP
v McCabe [2005] 2 IR 568.
[794]
See e.g. Freeney v Bray Urban District
Council [1982] ILRM 29.
[795]
Article 28, Convention on the
Limitation Period in the International Sale of Goods.
[796]
Ibid at Article 29.
[797]
Tennyson v Dun Laoghaire Corporation
[1991] 2 IR 527.
[798]
See “Practice and Procedure (Judicial
Review Proceedings - Discretionary Factors - Effect of Delay)” (2000)
7 DULJ 236.
[799]
Section 6, Statute of Limitations 1957.
[800]
Section 11(1), Statute of Limitations
1957.
[801]
Law Commission of England and Wales Limitation
of Actions (Consultation Paper No 151, 1998) paragraph 1.2.
[802]
See Law Reform Commission Report on Statute Law Restatement (LRC
91-2008) at 103. Brady & Kerr The Limitation of Actions (2nd
ed Law Society 1994) is an annotated commentary on the full text of the
Statute, taking account of amendments to 1994. The Commission is also aware of
other informal Restatements of the 1957 Statute.
[803]
Law Commission for England and Wales Limitation
of Actions (Consultation Paper No. 151, 1998) at 281.
[804]
Alberta Institute of Law Research and
Reform Limitations (Report for Discussion No. 4, September 1986) at
80-82.
[805]
Alberta Institute of Law Research and
Reform Limitations (Report for Discussion No. 4, September 1986) at
78-84.
[806]
Devlin v Roche & ors [2002] 2 IR 360.
[808]
Law Commission of England and Wales Limitation
of Actions (Consultation Paper No 151, 1998) at 3.
[809]
Alberta Institute of Law Research and
Reform Limitations (Report for Discussion No. 4, September 1986) at 69.
[810]
Dower was abolished by section 3 of the section 11(2) of the Succession Act
1965.
[811]
Law Reform Commission of
Western Australia Report on Limitation and Notice of Actions (Project No
36 (II), 1997) at 43.
[812]
Law Commission of
England and Wales Limitation of Actions (Consultation Paper No
151, 1998) paragraph 1.5.
[813]
See Limitation of
Actions Act RSA 1980, c.L-15
[814] Alberta
Institute of Law Research and Reform Limitations (Report for Discussion
No. 4, September 1986) preface.
[815] Ibid at
77.
[816] Ibid at
paragraph 2.149.
[817] Alberta Law
Reform Institute Limitations (Report No. 55, 1989) at 1.
[818]
Alberta Law Reform Institute Limitations (Report for Discussion No. 4,
1986), at paragraphs 2.150 - 2.155.
[819]
Bill 28, Limitation
of Actions Act, 3d Sess., 56th Leg., 2008. The Standing Committee on Law
Amendments held public hearings on Bill 28 on 24 February 2009 and reported to
the Legislative Assembly on 2 June 2 2009.
[820]
Manitoba Law Reform Commission The
Limitation of Actions Act: Draft Report for Consultation (15 June 2009).
[821]
Limitations Act SA 1996 cL-15.1.
[822]
Section 2(1), Limitations Act RSA
2000 c.L‑12
[823]
Limitations Act RSA 2000 c.L‑12.
[824]
See Justice Statutes Amendment Act SA 2002, c. 17 (with regard to
disability, and minors); Limitation Statutes Amendment Act SA 2007 SA
c22. See consolidate version up to 15 July, 2008 at
http://www.canlii.org/ab/laws/sta/l-12/20080715/whole.html.
[825]
Defined in section 1(j), Limitations
Act RSA 2000 cL‑12.
[826]
Section 3(1), Limitations
Act RSA 2000
cL‑12.
[827]
Section 3(1)(b), Limitations
Act RSA 2000 cL‑12.
[828]
Enforcement orders are issued
only after the claim has been litigated. Where the enforcement order issues,
the initial claim was brought within the prescribed limitation period. A
ten-year limitation period applied to actions seeking one particular type of
enforcement order - a judgment to pay money - running from the time when the
claims arose. See section 11, Limitations Act SA
1996 cL-15.1.
[829]
It was considered offensive to
impose a limitation period on an important remedy on claims involving civil
liberties. See Alberta Institute of Law Research and Reform Limitations (Report
for Discussion No. 4, 1986) at paragraph 3.62.
[830]
Section 3(4), Limitations
Act RSA 2000 cL‑12. The
discoverability rule is considered inappropriate for such actions. See further
Law Reform Committee of Parliament Twenty-First Report: Final Report on
Limitation of Actions (Cmnd. 6923, 1977), at paragraph 2.4.
[831]
Section 13, Limitations Act
RSA 2000 cL‑12. This
exclusion was not part of the Alberta Institute's proposals, but was added to
the Bill during its passage through Parliament, in order to avoid a landslide
of claims before the Act came into force.
[832]
Section 5, Limitations Act RSA
2000 cL‑12.
[833]
Section 3(1), Limitations
Act RSA 2000
cL‑12.
[834]
Law Reform Commission of
Western Australia Report on limitation and Notice of Actions (Project
36(II), 1997) at paragraph 6.45. The Commission gave the example of child
abuse cases brought years later. Ibid.
[835] Alberta Law Reform
Institute Limitations Act: Adverse Possession and Lasting Improvements
(Final Report No. 89, 2003); Alberta Law Reform Institute Limitations Act:
Standardizing Limitation Periods for Actions on Insurance Contracts (Final
Report No. 90, 2003).
[836]
RSA 1980, c.L-15.
[837]
SA 2007 c22. This was Bill 17
of 2007, and came into force on June 19,2007.
[838]
Alberta Hansard, April 11, 2007 (Second Reading of Bill 17 of 2007) at 526.
[839]
Ontario Law Reform Commission Report
on Limitation of Actions (1969). The Ministry of the Attorney General
released a discussion paper in 1977, containing a draft bill with a brief
commentary. The resulting Bill 160 of 1983 did not proceed
beyond first reading.
[840]
Ontario Limitations Act
Consultation Group Recommendations for a New Limitations Act: Report of the
Limitations Act Consultation Group (1991).
[841]
Bill 99 of 1992, like Bill 160 of 1983, died on the order paper.
[842]
This was initiated by then
Attorney General and resulted in Bill 163 of 2000, in which many of the
proposals of the 1992 Bill were carried forward. The 2000 Bill was reintroduced
as Bill 10 of 2001 and again, with some minor changes, as a schedule to Bill
213 of 2002, and passed without debate.
[843]
S.O. 2002, c.24, Schedule B. This came into force on January 1,
2004. It is one of three Acts contained in the Justice Statute
Law Amendment Act.
[844]
See 2002, c.24, Schedule B,
section 50; 2004, c.16, Schedule D, Table; 2004, c.31, Schedule 22; 2006, c.21,
Schedule D; 2006, c.32, Schedule C, section 29; 2007, c.13, section 44. See
Legislative Table at
http://www.e-laws.gov.on.ca/html/tables/publicstatutesannotations/elaws_t_pu_st_an_T02l24.htm;
consolidated version of the Act, dated September 8, 2008, at
http://www.search.e-laws.gov.on.ca/en/isysquery/c62addc2-e7dc-4629-a3f5-f8aa567cb5b4/1/frame/?search=browseStatutes&context.
[845]
Section 4, Limitations Act. SO 2002, c.24, Schedule B. For a definition
of the date of discovery, see ibid at section 5.
[846]
Ibid at section 15(2).
[847]
Ibid at section 16.
[848]
Part 1 of the original Limitations
Act, dealing with real property, was preserved and renamed the Real
Property Limitations Act 1990.
[849]
See section 2(1), Limitations
Act SO 2002, c.24, Schedule B.
[850]
The basic limitation period
does apply to actions in respect of a breach of trust, except where a
beneficiary's rights arise in respect of land or rent vested in a trustee upon
an express trust.
[851]
If the claim is for equitable
relief, the doctrine of laches applies.
[852]
Section 17, Limitations Act
SO 2002, c.24, Schedule B.
[853]
Section 19, Limitations Act SO
2002, c.24, Schedule B.
[854]
Law Reform Commission of
Saskatchewan Proposals for a New Limitation of Actions Act (1989).
[855]
Law Reform Commission of
Saskatchewan Comparison of Proposals for Reform of the Limitations of
Actions Act (Research Paper, December 1997).
[856]
Department of Justice of
Saskatchewan Proposals for Reform: Limitation of Actions and Joint and
Several Liability (Regina: Department of Justice, 2003).
[857]
SS 2004, c. L-16 1; came into
force on May 1, 2005.
[858]
See Limitations Amendment
Act SS 2007, c.28.
[859]
Section 5, Limitations Act SS
2004, c. L-16 1. For a definition of the date of discovery, see ibid at
section 6(1).
[860]
Section 7(1), Limitations
Act SS 2004, c. L-16 1. This is subject to exceptions under sections 7(2)
and (4), in the case of excessive conversions or fatal injuries.
[861]
Section 3(1), Limitations
Act SS 2004, c. L-16 1.
[862]
Section 3(2), Limitations
Act SS 2004, c. L-16 1.
[863]
Section 3(2)(c), Limitations
Act SS 2004, c. L-16 1.
[864] Section 3(2)(d), Limitations Act SS 2004, c. L-16 1.
[865]
Sections 3(4) and (5), Limitations
Act SS 2004, c. L-16 1.
[866] Section 7.1, Limitations Act SS 2004, c. L-16 1. The limitation period runs for 10 years from the date of the judgment or order.
[867]
See generally section 15, Limitations
Act SS 2004, c. L-16 1.
[868]
Section 16, Limitations Act
SS 2004, c. L-16 1.
[869]
Section 4, Limitations Act SS
2004, c. L-16 1.
[870]
Section 18, Limitations Act
SS 2004, c. L-16 1.
[871]
The Conference was first called
the Conference of Commissioners on Uniformity of Laws throughout Canada.
In 1919, the Conference changed its name to the Conference of Commissioners
on Uniformity of Legislation in Canada and, in 1974, to the Uniform Law
Conference of Canada.
[872]
Alberta
(1935), Manitoba (1932, 1946), New Brunswick (1952), the Northwest Territories
(1948), Prince Edward Island (1939), Saskatchewan (1932) and the Yukon
Territory (1954).
[873]
Newfoundland
and Labrador (1996).
[874]
ULCC Conference 2005 (St John’s,
Nfld) Civil Section Report: Uniform Limitations Act (August 21-25 2005)
paragraph 3. Available at http://www.ulcc.ca/en/poam2/Uniform_Limitations_Act_Rep_En.pdf.
[875]
Section 4, ULCC Uniform
Limitations Act (adopted 2005). For a definition of discoverability, see ibid
at section 5.
[876]
Ibid at section 6.
[877]
Section 9, ULCC Uniform
Limitations Act (adopted 2005). This would include claims in respect of
sexual misconduct, including incest.
[878]
The limitation period in
insurance claims was dealt with in a separate publication in 2004. See ULCC
Civil Law Section Report on Limitation Periods in Insurance Claims (2005
Conference). The ULCC Civil Section Steering Group continues to monitor this
issue, and is working with the Canadian Council of Insurance Regulators to
address the problems. Office of the Attorney General of Prince Edward Island Uniform
Law Conference Delegates Work to Harmonize Laws (Press Release, September
13 2007).
[879]
Section 2, ULCC Uniform
Limitations Act 2005.
[880]
ULCC Report of the Uniform
Limitations Group Act Working Group: Is It Time for A New Uniform
Limitation Act (John Lee, Ontario Ministry of the Attorney General, 2004)
paragraph 30.
[881]
See commentary on section 4,
ULCC Uniform Limitations Act 2005.
[882]
See commentary on section 6,
ULCC Uniform Limitations Act 2005.
[883]
Act No. 035 of 1935 (26 Geo. V No.
35).
[884]
Limitation Act 1623, Civil
Procedure Act 1833, Real Property Limitation Acts 1833 and 1874 and
a number of other Acts.
[885]
Law Reform Commission of Western
Australia 30th Anniversary Report Implementation Report (2002),
at 124. See further Law Reform Commission of Western Australia Report
on Limitation and Notice of Actions (Project No 36 (II), 1997), at
61-70.
[886]
Law Reform Commission of Western
Australia Report on Limitation and Notice of Actions (Project No 36
(II), 1997). This followed the Law Reform Commission of Western
Australia’s Discussion Paper on Limitation and Notice of Actions (Project
No. 36(II), 1992).
[887]
Law Reform Commission of Western
Australia Report on Limitation and Notice of Actions (Project No 36
(II), 1997), at paragraph 7.1.
[888]
Law Revision Committee Fifth
Interim Report: Statutes of Limitation (Cmd. 5334, 1936), at 7.
[889]
With the exception of actions to
recover arrears of rent.
[890]
These actions in respect of
mortgages would be subject to the ultimate period, but not the limitation
period.
[891]
Actions to recover tax paid would be
subject to a one-year limitation period.
[892]
Act No. 19 of 2005. The Act
came into force on 15th November, 2005. The Limitation
Legislation Amendment and Repeal Act 2005 (WA) repealed all limitations acts preceding
the 2005, but retained certain sections of those acts.
[893]
Section 13(1), Limitation Act 2005 (WA), Act No. 19 of 2005.
[894]
Explanatory Memorandum, Limitation
Bill 2005 (Clause Notes), available at
http://www.parliament.wa.gov.au/web/newwebparl.nsf/iframewebpages/Bills+-+All.
[895]
Section 3(1), Limitation Act 2005
(WA), Act No. 19 of 2005. It does not apply to proceedings for
certiorari, mandamus, prohibition, habeas corpus or quo warranto.
[896]
Section 3(1), Limitation Act 2005
(WA), Act No. 19 of 2005. This is subject to sections 29 and 88
of the Act.
[897]
Section 79, Limitation Act 2005 (WA),
Act No. 19 of 2005.
[898]
Ibid at section 27(1).
[899]
Ibid at section 27(2).
[900]
Ibid at sections 30-34.
[901]
Ibid at sections 35-37.
[902]
Ibid at section 38.
[903]
Ibid at section 39.
[904]
Ibid at section 40,.
[905]
Ibid at sections 41 and 42,
respectively. This does not apply in defamation actions. See ibid at
sections 41(d) and 42(d).
[906]
Section 36(3), Limitation Act
2005 (WA), Act No. 19 of 2005.
[907]
Ibid at section 15. Initially
two alternative limitation periods were discussed for - 6 months since the person alleged to
be defamed became aware of the publication or 6 years since the publication
whichever occurs first.
[908]
Section 28, Limitation Act 2005 (WA),
Act No. 19 of 2005. This does not apply if a longer limitation period is
prescribed by another enactment. It is also subject to sections 86 and 87 of
the Act.
[909]
Ibid at section 17.
[910]
Ibid at section 14(1).
[911]
Ibid at section 14(2).
[912]
Ibid at section 16. This also
applies to civil actions for assault, battery or imprisonment.
[913]
Ibid at section 18.
[914]
Section 19, Limitation Act 2005 (WA),
Act No. 19 of 2005. This does not apply to actions by or on behalf of the
Crown.
[915]
Ibid at section 23.
[916]
Ibid at sections 55-73.
[917]
Ibid at section 17.
[918]
Law Commission for England and Wales Limitation
of Actions (Consultation Paper No. 151, 1998); Limitation of Actions (Report
No. 270, 2001). This was in accordance with the Law Commission’s Sixth
Programme of Law Reform (Law Com. No. 234).
[919]
Law Commission for England and Wales Limitation
of Actions (Consultation Paper No. 151, 1998) at 1.
[920]
Ibid at 2-3.
[921]
Law Commission for England and Wales Limitation
of Actions (Consultation Paper No. 151, 1998) at 4.
[922]
Law Commission for England and Wales Limitation
of Actions (Report No. 270, 2001) at 41.
[923]
I.e. claims in tort where loss or damage
is an essential element of the cause of action, and claims for breach of
statutory duty.
[924]
See Limitation of Actions (Report
No. 270, 2001) at paragraphs 3.99 – 3.113.
[925]
See section 459, Companies Act 1985
(c. 6): an application by a member of a company by petition for an order that
the company’s affairs were conducted in a manner that is unfairly prejudicial
to the interests of the company’s member.
[926]
Including negligence, trespass to the
person (including child abuse), defamation, malicious falsehood.
[927]
It was recommended that such actions
should be subject to a limitaton period of the same length as the ultimate
limitation period (i.e. 10 years), running from the date of accrual.
[928]
See Law Commission for England and Wales Limitation
of Actions (Report No. 270, 2001) at 90-94.
[929]
Hansard, HL Debates, 16 July 2002, col WA127.
[930]
KR v Bryn Alyn Community (Holdings) Ltd
[2003] QB 1441, 1480 (CA).
[931]
A v Hoare [2006] 1 WLR 2320, 2327 (CA) at paragraph 6.
[932]
Written Answer, Hansard
(HC), 23 October
2007, col 293W. It was stated that this was expected in early 2008.
[933]
See Preparing Britain for the Future -
the Government’s Draft Legislative Programme 2008-2009 (14 May 2008, Cm
7372). Available at http://www.official-documents.gov.uk/document/cm73/7372/7372.asp.
[934]
Written Answer, Hansard (HC), 6
October 2008, col 177W.
[935]
See
http://www.commonsleader.gov.uk/output/page2672.asp.
[936]
See
http://www.justice.gov.uk/news/newsrelease010709a.htm.
[937]
See e.g. McGee Limitation Periods (5th
ed, 2006) at 26.
[938]
New Zealand Law Commission
Consultation Draft: Limitation Defences Bill 2007 (NZLC 69, 2007), at 2.
[939]
See Trustees Executors Ltd v
Peter James Murray & Ors [2007] NZSC 27: “It is notorious that the New
Zealand law concerning limitations is long overdue for reconsideration”
(Blanchard J).
[940]
New Zealand Law Commission Report No.
6, Limitation Defences in Civil Proceedings (NZLC R6, October 31
1988). This Report recommended the complete repeal of the
Limitations Act 1950 and its replacement by a new statute containing different
rules and employing a different vocabulary.
[941]
New Zealand Law Commission Report
61, Tidying the Limitation Act (NZLC R61, July 2000). See also New Zealand
Law Commission Preliminary Paper 69, Limitation of Civil Action – A
Discussion Paper (NZLC PP39, February 2000).
[942]
Christopher Corry BL Miscellaneous
Paper No. 16, Limitation Defences in Civil Cases: Update Report for the
Commission (NZLC MP 16, June 20 2007).
[943]
See New Zealand Law Commission Regulatory
Impact Statement, in Consultation Draft: Limitation Defences Bill 2007 (NZLC
69, 2007), at 26.
[944]
New Zealand Law Commission
Consultation Draft: Limitation Defences Bill 2007 (NZLC 69, 2007).
[945]
The original recommendation was for a
three-year limitation period. See Report No. 6, Limitation Defences in Civil
Proceedings (NZLC R6, October 31 1988), at paragraph 128.
[946]
These are subject to a two year
limitation period, extendable under clause 12, Consultation Draft:
Limitation Defences Bill 2007 (NZLC 69, 2007).
[947]
Clause 33, Consultation Draft:
Limitation Defences Bill 2007 (NZLC 69, 2007). See also Clause
37 of the Draft.
[948]
Clauses 34 and 35, Consultation
Draft: Limitation Defences Bill 2007 (NZLC 69, 2007). See further
sections 4(9) and 31, New Zealand Limitation Act 1950.
[949]
Clause 32, Consultation Draft:
Limitation Defences Bill 2007 (NZLC 69, 2007). This clause is similar
to section 33 of the New Zealand Limitation Act 1950.
[950]
Clause 12, Consultation Draft:
Limitation Defences Bill 2007 (NZLC 69, 2007).
[951]
Consultation Draft: Limitation
Defences Bill 2007 (NZLC 69, 2007), at 41 et seq.
[952]
As defined in clause 10, Consultation
Draft: Limitation Defences Bill 2007 (NZLC 69, 2007).
[953]
Clause 36, Consultation Draft:
Limitation Defences Bill 2007 (NZLC 69, 2007).
[954]
Land of the Crown, Maouri customary
land, and land actions under the Land Transfer Act 1952. Clause 37, Consultation
Draft: Limitation Defences Bill 2007 (NZLC 69, 2007).
[955]
Clause 39, Consultation Draft:
Limitation Defences Bill 2007 (NZLC 69, 2007).
[956]
Ibid at clause 31. See
clause 9 for an overview of this defence.
[957]
New Zealand Law Commission Regulatory
Impact Statement, in Consultation Draft: Limitation Defences Bill 2007 (NZLC
69, 2007), at 27.
[958]
Clause 5 and Schedule 1, Consultation
Draft: Limitation Defences Bill 2007 (NZLC 69, 2007).
[959]
See New Zealand Law Commission Consultation
Draft: Limitation Defences Bill 2007 (NZLC 69, 2007), at 41 et seq.
[960]
Clause 11, Consultation Draft:
Limitation Defences Bill 2007 (NZLC 69, 2007).
[961]
Ibid at clause 5(4).
[962]
See Explanatory Note, Limitation Bill 33-1 (2009), available at
http://www.legislation.govt.nz/bill/government/2009/0033-1/latest/DLM2033101.html?search=ts_bill_Limitation_resel&sr=1.
[963]
See clause 3, Limitation Bill 33-1
(2009).
[964]
See Thom v Davys Burton [2008] NZFLR 1032 (SC).
[965]
Clauses 17-35, Limitation Bill 33-1
(2009).
[966]
Ibid at clauses 42-47.
[967]
See Explanatory Memo.
[968]
Clause 13, Limitation Bill 33-1
(2009).
[969]
Ibid at clause 14.
[970]
This limitation period
is commonly referred to as the ‘standard’, ‘primary’ or ‘initial’ limitation
period. For the purposes of this Consultation Paper, the Commission will
use the term ‘basic’ limitation period.
[971]
See e.g. Law Revision
Committee Fifth Interim Report: Statutes of Limitation (Cmd. 5334, 1936)
at paragraph 5.
[972]
Ibid at paragraph 5.
[973]
Law Revision Committee Fifth
Interim Report: Statutes of Limitation (Cmd. 5334, 1936), at paragraph
5.
[974]
See e.g. section 11(2), Statute
of Limitations 1957.
[975]
Law Commission for
England and Wales Limitation of Actions (Consultation Paper No. 151,
1998) at 283.
[976]
Law Reform Commission of
Western Australia Report on Limitation and Notice of Actions (Project No
36 (II), 1997), at paragraph 4.47.
[977]
Alberta Institute of Law
Research and Reform Limitations (Report for Discussion No. 4, September
1986) at 81.
[978]
Section 2(1)(j), Uniform
Limitation of Actions Act 1931 (Uniform Law Conference of Canada): “any
other action not in this Act or any other Act specifically provided for, within
six years after the cause of action arose.”
[979]
The Uniform Limitation of Actions
Act formed the basis for legislation in Alberta,
Manitoba, New Brunswick, the Northwest Territories, Prince Edward Island,
Saskatchewan and the Yukon Territory.
[980]
Alberta Institute of Law
Research and Reform Limitations (Report for Discussion No 4 1986) at
paragraph 2.63.
[981]
Ibid at paragraphs
2.54-2.63.
[982]
Law Reform Commission of
Western Australia Report on Limitation and Notice of Actions (Project No
36 (II), 1997), at paragraph 7.10 (general); 12.8-12.12 (deeds), 12.38-12.43
(actions on a judgment).
[983]
Law Commission for England and Wales
Limitation of Actions (Consultation Paper No. 151, 1998) at 281.
[984]
Ibid at 281.
[985]
Dockray “Why do we need Adverse
Possession” [1985] Conv 272.
[986]
Alberta Institute of Law Research
and Reform Limitations (Report for Discussion No. 4, 1986) at paragraph
2.58.
[987]
Law Commission for England and Wales
Limitation of Actions (Report No. 270, 2001) at 66.
[988]
Law Commission for England and Wales
Limitation of Actions (Consultation Paper No. 151, 1998) at 282.
[989]
This has been changed under clause
13, Limitations Bill 33-1 (2009). .
[990]
Limitation Act 1963.
[991]
Law Reform Committee Twentieth
Report: Interim Report on Limitation of Actions in Personal Injury Claims (Cmnd.
5630, 1974) at paragraph 15.
[992]
Law Commission for England and
Wales Report on the Limitation Act 1963 (Law Com No. 35, 1970).
[993]
Section 1, English Law
Reform (Miscellaneous Provisions) Act 1971.
[994] Alberta Institute of
Law Research and Reform Limitations (Report for Discussion No. 4, 1986)
at paragraph 2.143.
[995] Alberta Institute of
Law Research and Reform Limitations (Report for Discussion No. 4, 1986)
at paragraph 2.143.
[996]
See Committee on Court Practice and
Procedure Commentary on the General Scheme of the Courts and Civil Liability
Bill (6 November 2003).
[997]
Committee on Court Practice and
Procedure 29th Report: Personal Injuries Litigation (June
2004).
[998]
[1973] IR 334 (SC). In
this case, the Court was considering the two-year limitation period applicable
under section 6(1) of the Workmen's Compensation (Amendment) Act 1953.
[999]
O’Brien v Manufacturing
Engineering Co. Ltd [1973] IR 334, 366-367 (SC).
[1000]
[1977] IR 55.
[1001]
Alberta Institute of Law Research
and Reform Limitations (Report for Discussion No. 4, September 1986) at
141.
[1002]
Committee on Court Practice and
Procedure 29th Report: Personal Injuries Litigation (June,
2004).
[1003]
Final Report of the Departmental
Committee on Alternative Remedies (Cmd. 6860, 1946).
[1004]
Report of the Committee on the Limitation
of Actions (Cmd. 7740, 1949). The Tucker Committee in fact
recommended a two-year limitation period, extendable at the discretion of the
court to six years.
[1005]
Alberta Institute of Law Research
and Reform Limitations (Report for Discussion No. 4, September 1986) at
paragraph 2.144
[1006]
Scottish Law Commission Report on
Personal Injury Actions: Limitation and Prescribed Claims (Scot Law Com No.
207) at 29.
[1007]
Ibid at 30.
[1008]
Ibid at 28.
[1009]
Law Commission for England and Wales
Limitation of Actions (Consultation Paper No. 151, 1998) at 283.
[1010]
Ibid at 283-284.
[1011]
Law Commission for England and Wales
Limitation of Actions (Report No. 270, 2001) at 66.
[1012]
Ibid at 66
[1013]
The Convention was amended by a
Protocol in 1980 by the diplomatic conference that adopted the UN Convention on
Contracts for the International Sale of Goods, in order to harmonise the two
Conventions. The amended Convention entered into force on 1 August 1988.
[1014]
Explanatory Note by the UNCITRAL Secretariat on
the Convention, available at
http://www.uncitral.org/pdf/english/texts/sales/limit/limit-conv.pdf. The
Note was prepared for informational purposes and is not an official commentary.
[1015]
Article 8, Convention on the
Limitation Period in the International Sale of Goods.
[1016]
Explanatory Note by the UNCITRAL Secretariat on
the Convention, available at
http://www.uncitral.org/pdf/english/texts/sales/limit/limit-conv.pdf.
[1017]
Commentary on the Convention
on the Limitation Period in the International Sale of Goods, done at New York,
14 June 1974 (A/Conf.63/17), 27 June, 1978.
[1018]
Ibid.
[1019]
Articles 9 & 10, Convention
on Limitation in the International Sale of Goods.
[1020]
Article 23, Convention on
Limitation in the International Sale of Goods.
[1021]
Explanatory Note by the UNCITRAL Secretariat on
the Convention, available at
http://www.uncitral.org/pdf/english/texts/sales/limit/limit-conv.pdf.
[1022]
See further Scottish Law Commission Report
on Personal Injury Actions: Limitation and Prescribed Claims (Scot Law Com
No. 207) at 2.
[1023]
Following the Scottish Law
Commission Report on Reform of the Law Relating to Prescription and
Limitation of Actions (Scot Law Com No. 15, 1970).
[1024]
Section 6 and Schedule 1, paragraph
1, Prescription and Limitations (Scotland) Act 1973 (c. 52), as
amended. Schedule 2 governs the running of time.
[1025]
See ibid at section 17(2),
substituted by section 17, Prescription and Limitation (Scotland) Act 1984
(c. 45).
[1026]
See section 18A, Prescription and
Limitations (Scotland) Act 1973 (c. 52), inserted by section 12, Law
Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73).
[1027]
Ibid at section 22A, inserted
by the Consumer Protection Act 1987 (c. 43).
[1028]
Ibid at Schedule 3.
[1029]
Ibid at section 7. The
Scottish Law Commission has recommended that this be shortened to 15 years in
its Report on Prescription and Limitation of Actions (Latent Damage and
Other Related Issues) (Scot Law Com No. 122, 1989) at paragraphs 3.11-3.16.
[1030]
Section 6(1), Prescription and
Limitations (Scotland) Act 1973 (c. 52).
[1031]
Law Commission for England and Wales
Limitation of Actions (Consultation Paper No. 151, 1998) at 10.
[1032]
Law Revision Committee Fifth
Interim Report: Statutes of Limitation (Cmd. 5334, 1936).
[1033]
Law Reform Committee Twenty-First
Report: Final Report on Limitation of Actions (Cmnd. 6923, 1977) at
paragraph 2.52.
[1034]
Ibid at paragraph 2.52.
[1035] Alberta Institute of
Law Research and Reform Limitations (Report for Discussion No. 4, 1986)
at paragraph 2.149.
[1036]
Law Commission for England and Wales
Limitation of Actions (Consultation Paper No. 151, 1998) at 5.
[1037]
Ibid at 10-11.
[1038]
Ibid at 283.
[1039]
Section 3, Limitation Act RSBC
1996, c.266. This was first introduced by section 3 of the Limitation
of Actions Act 1985.
[1040]
Ibid at section 3(5).
[1041]
Ibid at section 3(4).
[1042]
Ibid at section 8(1).
[1043]
Law Reform Commission of
Saskatchewan Proposals for a New Limitation of Actions Act: Report to the
Minister of Justice (1989) at 9-10.
[1044]
See Limitations Act SS 2005
c.L16-1, as amended by SS 2007, c.28.
[1045] Alberta Institute of
Law Research and Reform Limitations (Report for Discussion No. 4,
September 1986), at 71.
[1046] Alberta Institute of
Law Research and Reform Limitations (Report for Discussion No. 4,
September 1986), at paragraph 2.147.
[1047]
See Anthony Ogus, Limitation of
Actions - Justified or Unjustified Complexities? (Draft of Paper presented
at the Amsterdam Centre for Law and Economics Seminar, 12 December 2005.)
[1048]
See Statute of Limitations
(Amendment) Act 1991.
[1049]
See Civil Liability Act 1961.
[1050]
See Liability for Defective Products
Act 1991.
[1051]
Law Reform Committee of
Parliament Twenty-First Report: Final Report on Limitation of Actions (Cmnd.
6923, 1977), at paragraph 2.1. See also paragraph 2.74.
[1052]
Ibid at paragraph 2.2.
[1053]
Ibid at paragraph 2.3.
[1054]
See e.g. Reeves v Butcher [1891]
2 QB 509, 511 (Lindley LJ): “the earliest time at which a claim could be
brought”.
[1055]
See Read v Brown (1888)
22 QBD 128, 131; Coburn v Colledge [1897] 1 QB 702, 706.
[1056]
Alberta Institute of Law Research
and Reform Limitations (Report for Discussion No. 4, September 1986) at
88.
[1057]
[2008] 2 WLR 311; [2008] UKHL 6; [2008] All ER (D) 251 (Jan). This case concerned six
appeals which raised the question of whether claims for sexual assaults and
abuse which took place many years before the commencement of proceedings were
barred by the English Limitation Act 1980. The House of Lords was called
upon to determine whether such claims fell within section 2 or 11 of the
English Limitation Act 1980. It determined that the decision in Stubbings
v Webb [1993] AC 498 was wrongly decided on this issue. The House of
Lords determined that section 11 of the Limitation Act 1980 extended to
claims for damages in tort arising from trespass to the person, including
sexual assault. The case was remitted to a Queen’s Bench judge to decide
whether the discretion under section 33 of the Limitation Act 1980
should be exercised in the claimant’s favour. Justice Coulson concluded
that the factors in the claimant’s favour were more numerous and of
significantly greater weight. Therefore section 33 of the Limitation Act
1980 would be exercised in her favour - see A v Hoare [2008] EWHC 1573 (QB).
[1058]
New Zealand Law Commission Report
No. 6, Limitation Defences in Civil Proceedings (NZLC R6, October 31 1988),
at 169.
[1059]
Law Reform Commission of Western
Australia Report on Limitation and Notice of Actions (Project No 36
(II), 1997), at paragraph 6.60.
[1060]
Alberta Law Reform Institute Limitations
(Report for Discussion, 1986), at paragraph 2.184.
[1061]
New Zealand Law Commission Report
No. 6, Limitation Defences in Civil Proceedings (NZLC R6, October 31 1988)
at 170.
[1062]
Ibid at 171. It concluded that special provisions were not needed for cases relating
to testamentary claims.
[1063]
Law Reform Commission of Western
Australia Report on Limitation and Notice of Actions (Project No 36
(II), 1997) at paragraph 6.62.
[1064]
Ibid at paragraph 7.16.
[1065]
New Zealand Law Commission Report
No. 6, Limitation Defences in Civil Proceedings (NZLC R6, October 31 1988)
at paragraph 309.
[1066]
Law Reform Branch, Office of the
Attorney General, Province of New Brunswick Limitations Act Discussion Paper
(1988) at 8-9.
[1067]
Ontario Limitations Act Consultation
Group Recommendations for a New Limitations Act: Report of the Limitations
Act Consultation Group (1991) at 34-40.
[1068]
Law Reform Commission of Western
Australia Report on Limitation and Notice of Actions (Project No 36
(II), 1997) at paragraph 6.59.
[1069]
Ibid at paragraph 6.59.
[1070]
Section 11(2), Statute of
Limitations 1957 as amended by section 3(1), Statute of Limitations
(Amendment) Act 1991.
[1071]
Section 48(1), Civil Liability
Act 1961, as amended by section 6(1), Statute of Limitations (Amendment)
Act 1991.
[1072]
Section 7(1), Liability for
Defective Products Act 1991.
[1073]
Law Reform Commission of Saskatchewan Proposals
for a New Limitation of Actions Act: Report to the Minister of Justice (1989)
at 30.
[1074]
[1963] AC 758 (HL).
[1075]
Committee on Limitation of Actions Report
on Limitation of Actions in Cases of Personal Injury (Cmnd. 1829, 1962).
[1076]
Ibid at 18-19.
[1077]
English Limitation Act 1963, amending
the English Limitation Act 1939.
[1078]
Prescription and Limitation
(Scotland) Act 1973 (UK) ss. 18, 22, following the Scottish Law
Commission’s Report on Reform of the Law Relating to Prescription and
Limitation of Actions (Scot Law Com No 15, 1970).
[1079]
Statute of Limitations
(Amendment) Act 1991, following the Commission’s Report on the Statute
of Limitations: Claims in Respect of Latent Personal Injuries (No. 21,
1987).
[1080]
See e.g. Pirelli General Cable
Works Ltd v Oscar Faber & Partners (a firm) [1983] 2 AC 1 (HL).
[1081]
See The Statute of Limitations:
Claims in Contract and Tort in Respect of Latent Damage (Other than Personal
Injury) (Report No. 62, 2001).
[1082]
See Law Reform Commission The Law
of Limitation of Actions arising from Non-Sexual Abuse of Children (Consultation
Paper No. 16, 2000).
[1083]
See Statute of Limitations
(Amendment) Act 2000 (No. 13 of 2000). See also Law
Reform Commission The Law of Limitation of Actions arising from Non-Sexual
Abuse of Children (Consultation Paper No. 16, 2000).
[1084]
See e.g. 'What do you mean – there may be other
cases of cancer misdiagnosis, Mr Drumm?', Irish Independent, Saturday September
27, 2008.
http://www.independent.ie/health/case-studies/what-do-you-mean-ndash-there-may-be-other-cases-of-cancer-misdiagnosis-mr-drumm-1484267.html
[1085]
See e.g. Kamloops v Nielsen [1984]
2 SCR 2, 5 WWR 1; Novak v Bond [1999] 1 SCR 808, 172 DLR (4th) 385.
[1086]
See Sparham-Souter v Town and Country Developments (Essex) Ltd [1976] QB
858 (CA).
[1087]
Pirelli
General Cable Works Ltd v Oscar Faber & Partners [1983]
2 AC 1 (HL). This is consistent with the House of Lords’ earlier decision
in Cartledge v E Jopling & Sons Ltd [1963] AC 758 (HL).
[1088]
Law Reform Commission of Western Australia
Report on Limitation and Notice of Actions (Project No 36II, 1997), at
paragraph 7.17.
[1089] Alberta Institute of Law
Research and Reform Limitations (Report for Discussion No. 4, 1986), at
paragraph 2.147.
[1090]
Law Reform Commission of Western Australia
Report on Limitation and Notice of Actions (Project No 36II, 1997), at
paragraph 7.17.
[1091]
Law Reform Commission of Western Australia
Report on Limitation and Notice of Actions (Project No 36II, 1997) at
paragraph 7.17.
[1092]
Ibid at paragraph 7.24.
[1093]
Law Reform Commission Report on
Claims in Contract and Tort in Respect of Latent Damage (Other than Personal
Injury) (LRC 64, 2001) at paragraph 3.02.
[1094]
Phinikaridou v Cyprus (app no.
23890/02, decision of 20th March, 2008) at § 62.
[1095]
Ibid at § 63.
[1096]
Law Commission for England and Wales Limitation
of Actions (Consultation Paper No 151, 1998) at 253.
[1097]
Law Commission for England and Wales Limitation
of Actions (Report No. 270, 2001) at 41.
[1098]
Sections 1-2, Limitation Act 1963
(UK) (as enacted).
[1099]
Alberta Institute of Law Research and Reform Limitations (Report for
Discussion, September 1986) at 108-109.
[1100]
Section 7(3), Limitation Act 1963
(UK) (as enacted).
[1101]
Ibid at section 7(4).
[1102]
Sections 30-32, Limitation of Actions
Act 1974 (Qld) - remains in force.
[1103]
Sections 58-60, Limitation Act 1969 (NSW)
- no longer in force.
[1104]
Section 48, Limitation of Actions Act
1936 (SA), s 48 - inserted by the Statutes Amendment (Miscellaneous
Provisions) Act 1972 (SA).
[1105]
Section 44, Limitation Act 1981 (NT).
[1106]
Section 14, Limitation of Actions Act
1987 (Man).
[1107]
Section 23A, Limitation of Actions Act 1958
(Vic), as enacted in 1972 (now repealed). This did not require the
material fact to be of a decisive character. It was repealed in 1983.
[1108]
For a discussion of this discretion,
see the judgment of the High Court of Australia in Brisbane South Regional
Health Authority v Taylor (1996) 70 ALJR 866.
[1109]
Section 2, Limitation Act 1963 (UK).
[1110]
In Central Asbestos Co Ltd v Dodd
[1973] AC 518, for example, Lord Reid said at 529: “I think this Act has a
strong claim to the distinction of being the worst drafted Act on the statute
book.” See further Davies “Limitations of the Law of Limitation” (1982)
98 LQR 249.
[1111]
Law Reform Committee Twentieth
Report: Interim Report on Limitation of Actions in Personal Injury Claims (Cmnd.
5630, 1974) at paragraph 15.
[1112]
See Limitation Act 1980 (c.58).
[1113]
Section 11(4), Limitation Act 1980 (c.58).
[1114]
Ibid at section 14(1).
[1115]
Ibid at section 14(2).
[1116]
Ibid at section 14(1).
[1117]
Ibid at section 14(3).
[1118]
Ibid at section 14(3).
[1119]
See e.g. Davies “Limitations of the
Law of Limitation” (1982) 98 LQR 249; Mullany “Reform of the Law of
Latent Damage” (1991) 54 MLR 349.
[1120]
Law Reform Commission of Western
Australia Report on Limitation and Notice of Actions: Latent Disease and
Injury (Project No. 36 Part I, 1982), at paragraph 3.13.
[1121]
Davies “Limitations of the Law of
Limitation” (1982) 98 LQR 249, at 257.
[1122]
Law Reform Commission of Western
Australia Report on Limitation and Notice of Actions: Latent Disease and
Injury (Project No. 36 Part I, 1982), at paragraph 3.13.
[1123]
Section 2(1), Statute of Limitations
(Amendment) Act 1991.
[1124]
See Whitely v Minister for
Defence [1998] 4 IR 442; affirmed by the Supreme
Court in Bolger v O’Brien [1999] 2 ILRM 372.
[1125]
Section 2(2), Statute of
Limitations (Amendment) Act 1991.
[1126]
Section 2(3), Statute of Limitations
(Amendment) Act 1991.
[1127]
Enacted as a reaction to the
decision in Pirelli General Cable Works
Ltd v Oscar Faber & Partners (a firm) [1983] 2 AC 1, where it was determined that the time would run in
defective building cases where damage was suffered, whether it was detectable
or not.
[1128]
Section 14A(5), Limitation Act
1980 (c.58), inserted by the Latent Damage Act 1986 (c.37).
[1129]
Ibid at section 14A(6).
[1130]
Ibid at section 14A(7).
[1131]
Ibid at section 14A(8).
[1132]
Ibid at section 14(B).
[1133]
See McGee Limitation Periods (5th
ed 2006) at paragraphs 6.012-6.021.
[1134]
Law Reform Commission Report on
The Statute of Limitations: Claims in Contract and Tort in Respect of Latent
Damage (Other than Personal Injury) (LRC 64, 2001) at paragraph 2.51.
[1135]
Ibid at paragraph
2.54.
[1136]
Ibid at paragraph 2.45.
[1137]
Ibid at paragraph 2.45.
[1138]
Ibid at paragraph 2.20.
[1139]
Law Reform Commission Report on The
Statute of Limitations: Claims in Contract and Tort in Respect of Latent Damage
(Other than Personal Injury) (LRC 64, 2001) at paragraph 2.26.
[1140]
Ibid at paragraph 2.27.
[1141]
Ibid at paragraph 2.28-2.29.
[1142]
Section 14(1A), Limitation Act
1980, inserted by section 3 of Schedule I of the Consumer Protection Act
1987.
[1143]
Section 7(1), Liability for
Defective Products Act 1991.
[1144] Alberta Institute of Law
Research and Reform Limitations (Report for Discussion No. 4, 1986) at
114-115.
[1145]
Section 3(1)(a), Limitations Act RSA
2000, c.L-12.
[1146]
Clauses 14(3) and (4), Consultation
Draft: Limitation Defences Bill 2007 (NZLC 69, 2007). See further
column 4 of the Claims Table, contained in Schedule 1 to the draft Bill.
[1147]
Law Reform Commission of Western
Australia Report on Limitation and Notice of Actions (Project No. 36II,
1997), at paragraph 7.21.
[1148]
Law Commission for England and Wales Limitation
of Actions (Report No. 270, 2001) at 44.
[1149]
Ibid at 47.
[1150]
Ibid at 48.
[1151]
Ibid at 50.
[1152]
Ibid at 51.
[1153]
Ibid at 53.
[1154]
Law Commission for England and Wales Limitation
of Actions (Report No. 270, 2001) at 55.
[1155]
Ibid at 56-65.
[1156]
Limitation Act 1975; Limitation
Act 1980 (c.58).
[1157]
Section 11(4), Limitation Act 1980 (c.58).
[1158]
Section 33, Limitation Act 1980 (c.58).
[1159]
Prescription and Limitation
(Scotland) Act 1984. This was the result of the Scottish Law
Commission’s Prescription and the Limitation of Actions: Report on Personal
Injuries Actions and Private International Law Questions (Scot Law Com No
74, 1983). Section 19A had already been added to the Prescription and
Limitation (Scotland) Act 1973 by section 23 of the Law Reform
(Miscellaneous Provisions) (Scotland) Act 1980.
[1160]
Alberta Institute of Law Research and
Reform Limitations (Report for Discussion No.4, 1986) at 113.
[1161]
Section 3(1), Statute of
Limitations (Amendment) Act 1991. The 1991 Act substantially implemented
the recommendations of the Commission in its Report on the Statute of
Limitations: Claims in Respect of Latent Personal Injuries (LRC 21, 1987).
[1162]
Law Reform Committee Twenty-Fourth
Report (Latent Damage) (Cmnd. 9390, 1984).
[1163]
Section 14A(4), Limitation Act
1980, introduced by the Latent Damage Act 1986. See further
Mullany "Reform of the Law of Latent Damage" (1991) 54 MLR 349.
[1164]
Section 14A(B), Limitation Act
1980, inserted by the Latent Damage Act 1986.
[1165]
Ibid at section 14A(B)(2),
inserted by the Latent Damage Act 1986.
[1166]
Ibid at section 11A,
introduced by section 6(6) and Schedule 1 of the Consumer Protection Act
1987.
[1167]
Ibid at section 11A(3).
All other actions for damages under the provisions of the 1987 Act run for ten
years from the “relevant time”. See ibid at section 11A(4).
[1168]
Section 33(1), Limitation Act
1980, inserted by section 6 of Schedule 1 to the Consumer Protection Act
1987. This discretion does not apply to the limitation period for defective
products actions where the damages claimed by the
plaintiff are confined to damages for loss of or damage to any property.
See section 33(1A) of the Act.
[1169]
Section 7(1), Liability for
Defective Products Act 1991.
[1170]
Ibid at section 7(2)(a).
[1171]
Law Reform Commission of Western Australia
Report on Limitation and Notice of Actions (Project No 36II, 1997) at
paragraph 7.22.
[1172]
Ibid at paragraph 7.22.
[1173]
Alberta Institute for Law Research and
Reform Limitations (Report for Discussion No. 4, September 1986) at
paragraph 2.146-2.147.
[1174]
Ibid at paragraph 2.148.
[1175]
Law Reform Commission Consultation
Paper on The Statute of Limitations: Claims in Contract and Tort in Respect of
Latent Damage (Other than Personal Injury) (LRC 58, 1998).
[1176]
Law Reform Commission Report on
The Statute of Limitations: Claims in Contract and Tort in Respect of Latent
Damage (Other than Personal Injury) (LRC 64, 2001) at paragraph 3.02.
[1177]
Ibid at paragraph 3.02.
[1178]
Ibid at paragraph 3.02.
[1179]
Ibid at paragraph 3.03.
[1180]
Ibid at paragraph 3.03.
[1181]
Ibid at paragraph 3.03.
[1182]
Ibid at paragraph 2.40.
[1183]
Ibid at paragraph 2.54.
[1184]
Law Reform Commission Report on
The Statute of Limitations: Claims in Contract and Tort in Respect of Latent
Damage (Other than Personal Injury) (LRC 64, 2001) at paragraph 3.04.
[1185]
Section 17, Real
Property Limitation Act 1833 (3 & 4 Will IV, c 27).
[1186]
Section 5, Real
Property Limitation Act 1874 (37 & 38 Vic, c 57).
[1187]
Directive 85/374/EEC.
[1188]
Section 7(2)(a), Liability
for Defective Products Act 1991.
[1189]
Law Commission for
England and Wales Limitation of Actions (Consultation Paper No. 151,
1998) at 284.
[1190]
Alberta Law Reform
Institute Limitations (Report No. 55, 1989) at 35.
[1191] Alberta
Institute of Law Research and Reform Limitations (Report for Discussion
No. 4, 1986) at paragraph 2.197.
[1192] Ibid at
paragraph 2.197.
[1193]
Law Reform Committee of
Parliament Twentieth Report: Interim Report on Limitation of Actions in
Personal Injuries Claims (Cmnd. 5630, 1975) at paragraph 36.
[1194]
New Zealand Law Commission Tidying
the Limitation Act (NZLC R 61, July 2000) at paragraph 6.
[1195]
Ibid at paragraph 5.
[1196]
Law Commission for England and Wales
Limitation of Actions (Report No. 270, 2001) at 67.
[1197]
Law Reform Committee of
Parliament Twentieth Report: Interim Report on Limitation of Actions in
Personal Injuries Claims (Cmnd. 5630, 1975) at paragraph 37.
[1198]
Law Reform Commission of
Western Australia Report on Limitation and Notice of Actions (Project
No. 36II, 1997) at paragraph 5.67.
[1199]
Law Reform Commission of
Western Australia Report on Limitation and Notice of Actions (Project
No. 36II, 1997) at paragraph 5.72.
[1200]
Law Reform Commission Consultation
Paper on The Statute of Limitations: Claims in Contract and Tort in
Respect of Latent Damage (other than Personal Injuries) (1998) at 77.
[1201]
Law Reform Commission Report
on Defective Premises (LRC 3-1982) at 9. This recommendation was made in
the context of the Commission’s recommendation that the limitation period for
actions in respect of defective premises should run only from the plaintiff’s
date of knowledge. Ibid at 8-9.
[1202]
Law Reform Commission Report
on The Statute of Limitations: Claims in Respect of Latent Personal Injuries (LRC-21,
1987) at 46-47.
[1203]
Ibid at 47.
[1204]
Ibid at 48.
[1205]
[1984] IR 151.
[1206]
Law Reform Commission Report
on The Statute of Limitations: Claims in respect of Latent Personal Injuries
(LRC 21-1987) at 48.
[1207]
Law Reform Commission Consultation
Paper on The Statute of Limitations: Claims in Contract and Tort in Respect of
Latent Damage (other than Personal Injuries) (1998) at 79.
[1208]
Ibid at 77.
[1209]
Ibid at 77.
[1210]
Ibid at 78.
[1211]
Law Reform Commission Report on Claims in Contract and Tort in
Respect of Latent Damage (Other than Personal Injury) (LRC-64, 2001). at
paragraph 2.40.
[1212]
Ibid at paragraph
4.21. This would be comparable, though not identical, to section 14A(B),
English Limitation Act 1980 (c.58), inserted by the English Latent
Damage Act 1986 (c.37).
[1213]
Ibid at chapter
6.
[1214]
Law Reform Commission The Law of
Limitation of Actions arising from Non-Sexual Abuse of Children (LRC-CP16-2000)
at 64.
[1215]
Ibid at 65.
[1216]
Ibid at 66-68.
[1217]
Section 3(1)(b), Limitation Act RSA
2000, c.L-12.
[1218]
Section 40, Limitation Act
1985 (No 66); Republication No. 16 of April 12 2007.
[1219]
Section 8(1)(c), Limitation
Act RSBC 1996, c.266. But see Law Reform Commission of British
Columbia Report on the Ultimate Limitation Period: Limitation Act, Section 8
(1990); British Columbia Law Institute The Ultimate Limitation Period:
Updating the Limitation Act (Report No. 19, July 2002).
[1220]
Section 8(1)(a) and (b), Limitation
Act RSBC 1996, c.266.
[1221]
Section 14B(1), Limitation Act 1980 (c.58).
[1222]
Ibid at section 11A(3).
[1223]
Section 14(4), Limitation
of Actions Act CCSM, c. L150.
[1224]
Section 50C(1)(b), Limitation Act
1969 (No. 31), Reprint No. 8. The 12-year long-stop limitation period is
subject to extension under section 62A of the Act.
[1225]
Section 51, Limitation Act 1969 (No.
31), Reprint No. 8.
[1226]
See Clause 8, New Zealand Law
Commission Consultation Draft: Limitation Defences Bill 2007 (NZLC 69,
2007).
[1227]
Section 15(2), Limitations
Act SO 2002, c.24, Schedule B. But see the proposals made by the
Ontario Limitations Act Consultation Group in its Recommendations for a New
Limitations Act: Report of the Limitations Act Consultation Group (1991).
The Group recommended that the long-stop should vary in length according to the
nature of the case: a 30-year long-stop would generally apply, running from the
date on which the act of omission took place, but in exceptional cases
(involving health facilities, health practitioners, and improvements to real
property carried out under a contract), a 10-year long-stop would apply.
[1228]
Section 7(1), Limitations Act
S.S. 2004 c.L-16.1, as amended by S.S. 2007, c.28.
[1229]
Section 6, ULCC Uniform
Limitations Act (adopted 2005).
[1230]
Section 36(3), Limitation Act
2005 (No. 19).
[1231]
Law Reform Commission of
British Columbia Report on the Ultimate Limitation Period: Limitation Act,
Section 8 (1990).
[1232]
Alberta Institute for Law Research and Reform Limitations (Report for
Discussion No. 4, 1986) at 156.
[1233]
Alberta Institute for Law Research
and Reform Limitations (Report for Discussion No. 4, 1986) at 156.
[1234]
Ibid at 156.
[1235]
Ibid at 156.
[1236]
Alberta Law Reform Institute Limitations
(Report No. 55, 1989) at 35.
[1237]
Section 3(1), Limitations
Act RSA 2000, c.L-12.
[1238]
Law Reform Commission of
Western Australia Report on Limitation and Notice of Actions (Project
No. 36II, 1997), at paragraph 5.72.
[1239]
New Zealand Law Commission Tidying
the Limitation Act (NZLC R 61, July 2000) at paragraphs 13-14.
[1240]
British Columbia Law Institute Report
on the Ultimate Limitation Period: Updating the Limitation Act (Report No.
19, July 2002) at 8.
[1241]
Ibid at 8.
[1242]
Ibid at fn15.
[1243]
Law Commission for England and Wales
Limitation of Actions (Consultation Paper No. 151, 1998) at paragraphs 12.97 - 12.113.
[1244]
Law Commission for England and Wales Limitation of Actions (Report No.
270, 2001) at 67-68.
[1245]
Law Commission for England and Wales
Limitation of Actions (Consultation Paper No. 151, 1998) at 290.
[1246]
See Law Reform Commission of
Western Australia’s Report on Limitation and Notice of Actions (Project
36(II), 1997) at paragraph 6.17, fn 43, citing a letter from Professor P
J M Lown QC of the Alberta Law Reform Institute, dated 6 December 1996, on file
at that Commission.
[1247]
Alberta Institute for Law Research
and Reform Limitations (Report for Discussion No. 4, 1986) at paragraphs
2.197-2.198.
[1248]
Clauses 8 and 22, Consultation
Draft: Limitation Defences Bill 2007 (NZLC 69, 2007).
[1249]
New Zealand Law Commission Report
No. 6, Limitation Defences in Civil Proceedings (NZLC R6, October 31 1988),
at paragraphs 295-302; Law Reform Committee Twenty-Fourth Report (Latent
Damage) (Cmnd 9390, 1984).
[1250]
New Zealand Law Commission Regulatory
Impact Statement, in Consultation Draft: Limitation Defences Bill 2007 (NZLC
69, 2007), at 27.
[1251]
Law Reform Commission of
Western Australia Report on Limitation and Notice of Actions (Project
No. 36II, 1997) at paragraphs 7.30 and 7.54.
[1252]
This represents a reduction
from 30 years in the ULCC Uniform Limitation Act 1982. Personal injuries claims and
professional negligence claims, among others, were, however, subject to a
10-year ULP.
[1253]
Section 7(1), Limitations
Act SS 2004 (c. L-16.1).
[1254]
Ibid at section 7(1).
[1255]
Law Commission for England and Wales
Limitation of Actions (Consultation Paper No. 151, 1998) at 290-291.
[1256]
Law Commission for England and Wales
Limitation of Actions (Report No. 270, 2001) at paragraphs 3.99 –
3.113.
[1257]
Section 8(1)(c), Limitations Act RSBC
1996 (c.266), updated to January 2007. A six-year limitation
period applies to certain claims against hospitals and medical practitioners.
See sections 8(1)(a) and (b) of the Act.
[1258]
See Limitations Act SBC 1975,
c. 37. A limited outer bar had existed under the Statute of Limitations RSBC
1960, c.370, which provided that no action by a person under disability could
be brought beyond 40 years for the recovery of land.
[1259]
Law Reform
Commission of British Columbia Report on the Ultimate Limitation Period:
Limitation Act, Section 8 (Report No. 112, March 1990) at 13.
[1260]
Sections 8(1)(a) and (b), Limitations
Act RSBC 1996 (c.266).
[1261]
Section 20, Miscellaneous
Statutes Amendment Act (No. 2) 2000 SBC 2000, c. 26, s.20. (To come into
force by regulation under section 72(1) of that Act.)
[1262]
Law Reform Commission of
British Columbia Report on the Ultimate Limitation Period: Limitation Act,
Section 8 (LRC 112, 1990) at 31.
[1263]
British Columbia Law Institute The
Ultimate Limitation Period: Updating the Limitation Act (Report No. 19,
July 2002) at 6.
[1264]
Ibid at 6.
[1265]
British Columbia Law Institute The
Ultimate Limitation Period: Updating the Limitation Act (Report No. 19,
July 2002) at 7.
[1266]
Ibid at 7.
[1267]
Ibid at 7.
[1268]
Ibid at 7.
[1269]
Alberta Institute for Law Research and Reform Limitations (Report for
Discussion No. 4, 1986) at paragraph 2.198.
[1270]
Law Commission for England and Wales
Limitation of Actions (Report No. 270, 2001) at 67-68.
[1271]
Ibid at 69-70.
[1272]
Law Reform Commission Consultation
Paper on The Statutes of Limitation: Claims in Tort and Contract in Respect of
Latent Damage (Other Than Personal Injury (LRC, November 1998) at 79.
[1273]
Ibid at 79.
[1274]
Ibid at 78.
[1275]
Law Reform Commission Report
on Claims in Contract and Tort in Respect of Latent Damage (Other than
Personal Injury) (LRC 64, 2001) at paragraph 4.21.
[1276]
Ibid at paragraph
4.14.
[1277]
Law Reform Commission Report
on Claims in Contract and Tort in Respect of Latent Damage (Other than
Personal Injury) (LRC 64, 2001) at paragraph 4.07.
[1278]
Ibid at paragraph
4.14.
[1279]
Ibid at paragraph
4.15.
[1280]
The “relevant” time is the
date from which the product in question was last supplied by someone to whom
section 2(2) of the 1987 Act applies, namely any person who is the producer of
the product in question or who has held himself out as the producer by applying
his own distinguishing mark to it or who has imported the product into the EU
from outside the EU. Section 11A(3), Limitation Act 1980.
[1281]
Ontario Limitations Act
Consultation Group Recommendations for a New Limitations Act: Report of the
Limitations Act Consultation Group (1991) at 22.
[1282]
Ibid at 22.
[1283]
Alberta Institute of Law Research
and Reform Limitations (Report for Discussion No. 4, September 1986) at
155.
[1284]
Ibid at 157.
[1285]
Ibid at 158-169.
[1286]
See Alberta Institute of Law Research and
Reform Limitations (Report for Discussion No. 4, September 1986) at
158-169; Alberta Law Reform Institute Limitations (Report No. 55, 1989)
at 69-74.
[1287]
See Alberta Institute of Law Research and
Reform Limitations (Report for Discussion No. 4, September 1986) at 161.
[1288]
Ibid at 162.
[1289]
Ibid at 169.
[1290]
Sections 3(3)(a), Limitations Act RSA
2000, c.L-12.
[1291]
See Alberta Institute of Law Research and
Reform Limitations (Report for Discussion No. 4, September 1986) at 92.
[1292]
Alberta Institute of Law Research and
Reform Limitations (Report for Discussion No. 4, September 1986) at
92-104.
[1293]
Ibid at 158-159.
[1294]
Alberta Law Reform Institute Limitations
(Report No. 55, 1989) at 70.
[1295]
Sections 3(3)(b), Limitations Act RSA
2000, c.L-12.
[1296]
British Columbia Law Institute Report
on the Ultimate Limitation Period: Updating the Limitations Act (Report No.
19, 2002), at 26.
[1297]
Alberta Institute of Law Research and
Reform Limitations (Report for Discussion No. 4, September 1986) at 162.
[1298]
Sections 3(3)(c), Limitations Act RSA
2000, c.L-12.
[1299]
Alberta Institute of Law Research and Reform Limitations (Report for
Discussion No. 4, September 1986) at 163.
[1300]
Sections 3(3)(d), Limitations Act RSA
2000, c.L-12.
[1301]
Alberta Institute of Law Research and
Reform Limitations (Report for Discussion No. 4, September 1986) at 164.
[1302]
Ibid at 165-6.
[1303]
Ibid at 168.
[1304]
Ibid at 167.
[1305]
Ibid at 168.
[1306]
Alberta Institute of Law Research and
Reform Limitations (Report for Discussion No. 4, September 1986) at 169.
[1307]
Sections 3(3)(e), Limitations Act RSA
2000, c.L-12.
[1308]
New Zealand Law Commission Limitation
Defences in Civil Proceedings (NZLC Report No. 6, 1988) at paragraph 128.
[1309]
Ibid at paragraph 169.
[1310]
Law Commission for England and Wales Limitation of Actions (Consultation
Paper No. 151, 1998) at 288.
[1311]
Ibid at 289.
[1312]
The Consumer Protection Act 1987
(c. 43) inserted section 11A into the Limitation Act 1980. That
section deals with the limitation of actions in respect of defective
products. It provides for a three year basic limitation period running
from discoverability (as defined by section 11A (4) of the 1980 Act) and a ten
year ultimate limitation period running from “the relevant time” (as defined by
section 4(2) of the 1987 Act).
[1313]
Law Commission for England and Wales Limitation
of Actions (Consultation Paper No. 151, 1998) at 289.
[1314]
Law Commission for England and Wales Limitation
of Actions (Consultation Paper No. 151, 1998) at 289.
[1315]
Law Commission for England and Wales Limitation
of Actions (Report No. 270, 2001) at 70-71.
[1316]
Ibid at 70.
[1317]
Ibid at 70.
[1318]
See Construction Industry Board Report
from Working Group 10 on Liability Law (1995) at paragraphs 51-58.
[1319]
Law Commission for England and Wales Limitation
of Actions (Consultation Paper No. 151, 1998) at 288.
[1320]
See section 1(1), Defective Premises
Act 1972 (c. 35). The person must “see that the work which he takes on is
done in a workmanlike or professional manner, with proper materials and so that
as regards that work the dwelling will be fit for habitation when
completed.” Ibid.
[1321]
Section 1(5), Defective Premises Act
1972 (c. 35).
[1322]
Law Reform Committee Twenty-Fourth
Report (Latent Damage) (Cmnd. 9390, 1984) at paragraph 4.12.
[1323]
Law Commission for England and Wales Limitation
of Actions (Consultation Paper No. 151, 1998) at 288-289.
[1324]
Ibid at 289.
[1325]
Law Commission for England and Wales Limitation
of Actions (Report No. 270, 2001) at 71.
[1326]
Ibid at 71-72.
[1327]
Law Commission for England and Wales Limitation
of Actions (Report No. 270, 2001) at 72.
[1328]
Section 15(2), Limitations Act SO
2002, c.24, Schedule B.
[1329]
Ibid at section 15(6).
[1330]
British Columbia Law Institute Report on
The Ultimate Limitation Period: Updating the Limitation Act (BCLI Report
No. 19, 2002) at 16.
[1331]
British Columbia Law Institute Report
on The Ultimate Limitation Period: Updating the Limitation Act (BCLI Report
No. 19, 2002) at 16.
[1332]
Ibid at 17.
[1333]
Ibid at 18.
[1334]
Ibid at 18.
[1335]
British Columbia Law Institute Report
on The Ultimate Limitation Period: Updating the Limitation Act (BCLI Report
No. 19, 2002) at 18.
[1336]
Ibid at 26.
[1337]
Ibid at 27.
[1338]
Law Reform Committee Interim Report on Limitations of
Actions: Personal Injuries (20th Report, Cmnd 5630, 1974) at
paragraph 37.
[1339]
Law Reform Commission of Western
Australia Report on Limitation and Notice of Actions (Project No. 36II,
1997) at paragraph 5.67.
[1340]
Ibid at paragraph
5.68-5.69.
[1341]
Law Commission for England and Wales Limitation
of Actions (Consultation Paper No. 151, 1998) at 287.
[1342]
Law Commission for England and Wales Limitation
of Actions (Report No. 270, 2001) at 67.
[1343]
Ibid at 68.
[1344]
Law Commission for England and Wales Limitation
of Actions (Report No. 270, 2001) at 68.
[1345]
Ibid at 68.
[1346]
Ibid at 68-69.
[1347]
Ibid at 69.
[1348]
Ibid at 69.
[1349]
Scottish Law Commission Report on
Personal Injury Actions: Limitation and Prescribed Claims (Scot Law Com No.
207, December 2007) at 64.
[1350]
Ibid at 39-42.
[1351]
Ibid at 42.
[1352]
Ibid at 42.
[1353]
See Thompson v
Brown [1981] 1 WLR 744, 750.
[1354]
Law Revision Committee Fifth
Interim Report: Statutes of Limitation (Cmd. 5334, 1936) at paragraph
7.
[1355]
Ibid at paragraph
7.
[1356]
Ibid at paragraph
7.
[1357]
Ibid at paragraph
7.
[1358]
Ibid at paragraph
7.
[1359]
Ibid at paragraph
7.
[1360]
Ibid at paragraph
7.
[1361]
Law Revision Committee Report
on the Committee on the Limitation of Actions (Cmd.7740, 1949), at
paragraph 22.
[1362]
See Law Reform Committee of
Parliament Twentieth Report: Interim Report on Limitation of Actions in
Personal Injuries Claims (Cmnd. 5630, 1975), at paragraph 36.
[1363]
Law Revision Committee Report
on the Committee on the Limitation of Actions (Cmd.7740, 1949), at
paragraph 22.
[1364]
Monckton Committee Report
on Alternative Remedies (Cmd. 6860, 1946), at paragraph 107.
[1365]
Committee on Limitation of
Actions Report on Limitation of Actions in Cases of Personal Injury (Cmnd.
1829, 1962).
[1366]
Ibid at 18-19.
[1367]
Committee on Limitation of
Actions Report on Limitation of Actions in Cases of Personal Injury (Cmnd.
1829, 1962) at paragraph 31.
[1368]
Law Reform Committee of
Parliament Twentieth Report: Interim Report on Limitation of Actions in
Personal Injuries Claims (Cmnd. 5630, 1975) at paragraph 34-35.
[1369]
Ibid at paragraph
35.
[1370]
Ibid at paragraph
35.
[1371]
Ibid at paragraph
35.
[1372]
Law Reform Committee of
Parliament Twentieth Report: Interim Report on Limitation of Actions in
Personal Injuries Claims (Cmnd. 5630, 1975) at paragraph 38.
[1373]
Ibid at paragraph
33.
[1374]
Law Reform Committee of
Parliament Twenty-First Report: Final Report on Limitation of Actions (Cmnd.
6923, 1977) at paragraph 2.5 et seq. The Committee noted the
precedent to be found in section 2D into the Limitation Act 1939, and in
section 8 of the Maritime Conventions Act 1911. Ibid at paragraph 2.30.
The Committee also considered a concealed fraud approach and a date of
knowledge test.
[1375]
Ibid at paragraph
2.33.
[1376]
Ibid at paragraph
2.33.
[1377]
Ibid at paragraph
2.33.
[1378]
Law Reform Committee of
Parliament Twenty-First Report: Final Report on Limitation of Actions (Cmnd.
6923, 1977) at paragraph 2.35.
[1379]
Ibid at paragraph
2.36.
[1380]
The application of this
section is not entirely clear, but in general it can be said that it has no
application to actions in contract, but applies to cases involving defective
buildings. It is not confined to actions in respect of what is commonly
described as ‘latent damage’. McGee Limitation Periods (5th
ed 2006), at paragraphs 6.003- 6.008; 6.022.
[1381]
Section 14A, Latent Damage Act 1986.
[1382]
Ibid at section 14B.
[1383]
Law Commission for England and Wales
Limitation of Actions (Consultation Paper No. 151, 1998); Law Commission
for England and Wales Limitation of Actions (Report No. 270, 2001)
[1384]
Law Commission for England and Wales
Limitation of Actions (Consultation Paper No. 151, 1998) at 3.
[1385]
Ibid at 251.
[1386]
Ibid at 322.
[1387]
Law Commission for England and
Wales Limitation of Actions (Report No. 270, 2001) at paragraph 3.156.
[1388]
Ibid at paragraph 3.156.
[1389]
Ibid at paragraph 3.159.
[1390]
Law Commission for England and
Wales Limitation of Actions (Report No. 270, 2001) at paragraph 3.157.
[1391]
See e.g. Hartley v Birmingham
City District Council [1992] 2 All ER 213.
[1392]
Law Commission for England and
Wales Limitation of Actions (Report No. 270, 2001) at paragraph 3.159.
[1393]
Ibid at paragraph
3.160.
[1394]
Ibid at paragraph 3.161.
[1395]
Ibid at paragraph
3.169.
[1396]
Section 11(3A) (a), Statute
of Limitations 1957, inserted by section 38(1) (b) of the Defamation Act
2009.
[1397]
Ibid at section 11(3A)
(b).
[1398]
Ibid at section 11(3A).
[1399]
Section 33(3)(a) requires the court
to take into account the length of and reasons for the delay on the part of the
plaintiff. Section 33(3)(b) mandates consideration of “the extent to which the
cogency of evidence likely to be adduced by either the plaintiff or the
defendant is likely to be less as a result of the delay.”
[1400]
Section 13, Matrimonial Causes
Act 1973 (c. 18), as amended by the Matrimonial and Family Proceedings
Act 1984 (c. 42).
[1401]
Schedule - Article 22, Carriage
of Passengers by Road Act 1974 (c.35).
[1402]
Section 70(3), Solicitors Act
1974 (c.47).
[1403]
Section 4, Inheritance (Provision for Family and Dependants) Act 1975 (c.
63).
[1404]
Section 76(5), Sex Discrimination
Act 1975 (c. 65); section 68(6), Race Relations Act 1976 (c.74); Schedule
3- Part I, paragraphs 3(2) and 25(6) and Part II, paragraph 6(3),
Disability Discrimination Act 1996 (c. 50).
[1405]
Section 7(2), Company Directors
Disqualification Act 1986 (c. 46).
[1406]
Sections 190(5) and (6), (C. 21). Merchant Shipping Act 1995 (c. 21). Schedule 12
of the Act repealed the Maritime Conventions Act 1911 (1 & 2
Geo.5 c.57), which also provided for judicial discretion to extend the
limitation period.
[1407]
Section 111(2)(b), Employment
Rights Act 1996 (c. 18).
[1408]
So described by Lord Diplock
in Walkley v Precision Forgings ltd [1979] 1 WLR 606, 616 (HL).
[1409]
Section 33, Limitation Act
1980 (c.58).
[1410]
Law Commission for England and Wales
Limitation of Actions (Consultation Paper No. 151, 1998) at 52.
[1411]
Thompson v Brown [1981]
1 WLR 744, 750.
[1412]
Section 33(1), Limitation Act
1980 (c.58).
[1413]
Section 33(1), Limitation Act
1980 (c.58).
[1415]
Section 33(3), Limitation
Act 1980 (c.58).
[1416]
Thompson v Brown [1981]
1 WLR 744, 751.
[1417]
Thompson v Brown [1981]
1 WLR 744, 751.
[1418]
KR v Bryn Alyn Community
(Holdings) Ltd [2003] 1 QB 1441, 1470.
[1419]
Ibid at 1470.
[1420]
See e.g. Davies “Limitations of the Law of Limitation”
(1982) 99 LQR 249; Morgan “Limitation and Discretion: Procedural Reform
and Substantive Effect” (1982) 1 CJQ 109.
[1421]
Thompson v
Brown [1981] 1 WLR 744, 752.
[1422]
Section 5, Defamation Act
1996 (c.31). Section 5 of the 1996 Act also amended sections 28(4A) and 32A
of the Limitation Act 1980.
[1423]
Section 4A, Limitation Act
1980 (c.58). A previous amendment had reduced the limitation period
to three-years; see section 57, Administration of Justice Act 1985 (c.
61).
[1424]
Section 32A, Limitation Act 1980 (c.58).
[1425]
Section 32A(`1), Limitation Act
1980 (c.58).
[1426]
This provision equates to
section 33(1)(a), Limitation Act 1980 (c.58).
[1427]
This provision is similar to
section 33(3)(c), Limitation Act 1980 (c.58).
[1428]
This provision equates to
section 33(3)(b), Limitation Act 1980 (c.58).
[1429]
Law Commission for England and Wales
Limitation of Actions (Consultation Paper No. 151, 1998) at 65.
[1430]
Thompson v Brown [1981] 1 WLR
744, 752; Donovan v Gwentoys Ltd [1990] 1 WLR 472, 477.
[1431]
KR v Bryn Alyn Community
(Holdings) ltd [2003] 1 QB 1441, 1471.
[1432]
Ibid at 1471.
[1433]
Section 19A, Prescription
and Limitation (Scotland) Act 1973 (c. 52)- inserted by
section 23, Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 (c.
55); amended by section 10(2), Protection from
Harassment Act 1997 (c. 40) and by
Schedule 1 - article 8, Prescription and Limitation (Scotland) Act
1984 (c. 45).
[1434]
Section 19A(1), Prescription
and Limitation (Scotland) Act 1973 (c. 52), as amended.
[1435]
A non-exhaustive list was provided
in Carson v Howard Doris Ltd [1981] SC 278, 282 (Lord Ross) and in B
v Murray (No. 2) [2005] CSOH 70 (Lord Drummond Young) at
paragraph 29.
[1436]
Section 19A(4), Prescription
and Limitation (Scotland) Act 1973 (c. 52), inserted by Schedule 1 - article 8, Prescription and
Limitation (Scotland) Act 1984 (c. 45).
[1437]
Scottish Law Commission Consultative
Memorandum on Time-Limits in Actions for Personal Injuries (No. 45, 1980).
[1438]
Scottish Law Commission Report on
Prescription and the Limitation of Actions (No. 74, 1983).
[1439]
For a synopsis, see B v Murray
(No. 2) [2005] CSOH 70 (Lord Drummond Young, at
paragraph 29); affirmed at [2007] CSIH 39.
[1440]
See Forsyth v AF Stoddard &
Co. [1985] SLT 51, 55 (Clark Wheatley LJ); Elliot v J & C Finney [1989]
SLT 605, 608F (Clerk Ross LJ).
[1441]
Scottish Law Commission Report on
Personal Injuries Actions: Limitation and Prescribed Claims (Scot Law Com No
207, 2007) at 37.
[1442]
Ibid at 37-38.
[1443]
Ibid at 41.
[1444]
Ibid at 41.
[1445]
Ibid at 39-40.
[1446]
Ibid at 39-40.
[1447]
Scottish Law Commission Discussion
Paper on Personal Injury Actions: Limitation and Prescribed Claims (Scot
Law Com No. 132, 2006) at paragraphs 3.21-3.22.
[1448]
Scottish Law Commission Report on
Personal Injury Actions: Limitation and Prescribed Claims (Scot Law Com No.
207, December 2007) at 41.
[1449]
Ibid at 42.
[1450]
Ibid at 43-47.
[1451]
Ibid at 48.
[1452]
See section 21B(1), Limitation Act 1985 (ACT); section 14B,
Limitation Act 1969 (NSW); section 12(1A), Limitation Act 1981 (NT);
section 10AA, Limitation of Actions Act 1974 (Qld); section
37(1), Limitation Act 1936 (SA); section 20A(1), Defamation Act (Tas);
section 5(1AAA), Limitation of Actions Act 1958 (Vic); section 15, Limitation
Act 2005 (WA).
[1453]
A1985-66; Repub. No. 16 of 12 April
2007. This Act was originally the Limitation Ordinance 1985 (Cwlth).
[1454]
Date of commencement of the Civil
Law (Wrongs) Amendment Act 2003 (No. 2).
[1455]
Section 36(2), Limitation Act
1985 (A1985-66); Repub. No. 16 of 12 April 2007.
[1456]
Section 36(3), Limitation Act
1985 (A1985-66); Repub. No. 16 of 12 April 2007.
[1457]
Handford Limitation of Actions:
The Laws of Australia (2nd ed 2007), at 109.
[1458]
Section 36(4), Limitation Act
1985 (A1985-66); Repub. No. 16 of April 12 2007.
[1459]
See Civil Law (Wrongs) Amendment Act 2003 (No. 2) (A2003-35), section 58;
Limitation Amendment Act 2005 (A2005-64), section 4.
[1460]
Section 16B, Limitation Act 1985 (A1985-66);
Repub. No. 16 of April 12 2007. This did not apply to compensation for
relatives (section 16), claims for workers compensation (sections 16A) or
actions for personal injuries brought by a child in relation to the provision
of a health service (section 30B).
[1461]
Ibid at section 36(5)(a).
[1462]
Ibid at section 36(6).
[1463]
Ibid at section
36(5)(b).
[1464]
Ibid at section 38(1).
[1465]
Ibid at section 38 (1).
[1466]
Section 38 (1), Limitation Act
1985 (A1985-66); Repub. No. 16 of 12 April 2007.
[1467]
Ibid at section 38(2).
[1468]
Ibid at section 39.
[1469]
Ibid at section 40.
[1470]
Ibid at section 40(1).
[1471]
Ibid at section 40(1).
[1472]
Ibid at section 40(1).
[1473]
Ibid at section 40(2).
[1474]
No. 31 of 1969, version of 15
February 2008. This Act resulted from the New South Wales Law Reform
Commission’s First Report on the Limitation of Actions (LRC 3, 1967).
[1475]
Section 60A-E, Limitation Act
1969 (No. 31 of 1969).
[1476]
New South Wales Law Reform
Commission Report on the Limitation of Actions for Personal Injuries Claims (LRC
50, 1986).
[1477]
Section 2, Limitation (Amendment)
Act 1990 (No. 36 of 1990). This regime was commenced on September 1
1990.
[1478]
Sections 18A (1)(b), Limitation
Act 1969 (No. 31 of 1969).
[1479]
Ibid at section 60A-E.
[1480]
Ibid at section 60(C).
[1481]
Ibid at section 60(E).
[1482]
Hanford Limitation of Actions:
The Laws of Australia (2nd ed 2007) at 112.
[1483]
Section 60G (2), Limitation Act
1969 (No. 31 of 1969).
[1484]
Ibid at sections 62A-62F. Schedule 4.6, Civil Liability Amendment (Personal
Responsibility) Act 2002 (No. 92 of 2002). This regime was commenced
on December 6 2002.
[1485]
Section 50C (1), Limitation Act
1969 (No. 31 of 1969).
[1486]
Section 62A, Limitation Act 1969 (No.
31 of 1969).
[1487]
For the rules applicable to
discoverability, see section 50D, Limitation Act 1969 (No. 31 of 1969).
[1488]
Section 62B, Limitation Act 1969 (No.
31 of 1969).
[1489]
See Defamation
Amendment Act 2002 (No. 136 of 2002); Defamation Act 2005 (No. 77 of
2005).
[1490]
Section 14B, Limitation Act 1969 (No.
31 of 1969). This was inserted by the Defamation
Amendment Act 2002 (No. 136 of 2002). See also Defamation Act 2005
(No. 77 of 2005).
[1491]
Ibid at Section 56A(2).
[1492]
Ibid at Section 56A(2).
[1493]
Ibid at section 56D.
[1494]
No. 87 of 1981. See Reprint
No. 26, as in force at November 7 2007. This Act was originally modelled on the
New South Wales Limitation Act 1969.
[1495]
Section 44(1), Limitation Act
1981 (No. 87 of 1981).
[1496]
See Limitation Act 1981 (No.
87 of 1981), Endnotes, List of Legislation.
[1497]
Ibid at section 44(3)(b).
[1498]
Ibid at section 44(3)(b).
[1499]
Ibid at sections 44(3)(a) and
(aa).
[1500]
Ibid at section 44(7).
[1501]
Ibid at section 12(2)(b),
inserted by section 49, Defamation Act 2006 (No. 8 of 2006).
[1502]
Sections 44A, 44B and 44C, Limitation
Act 1981 (No. 87 of 1981), inserted by section 51, Defamation Act 2006
(No. 8 of 2006).
[1503]
Section 44A(2), Limitation Act
1981 (No. 87 of 1981).
[1504]
Ibid at sections 44A(2) and
(3).
[1505]
Ibid at section 44C
[1506]
Ibid at section 44B.
[1507]
Section 10AA, Limitation of Actions Act 1974 (Qld) (Reprint 2A), as in
force on September 28 2007.
[1508]
Ibid at section 32A(1).
[1509]
Ibid at section 32A(2).
[1510]
Ibid at section 32A(2).
[1511]
Ibid at section 32A(4).
[1512]
Section 33, Limitation of Actions
Act 1974 (Qld) (Reprint 2A), as in force on September 28 2007.
[1513]
Ibid at section 34(1).
[1514]
No. 2268 of 1936. Version of January
18 2007.
[1515]
Limitation of Actions Act 1936 (No.
2268 of 1936), as amended by the Limitation of Actions and Wrongs Acts
Amendment Act 1956 (SA) (No. 17 of 1956).
[1516]
Ibid at sction 48, inserted
by the Statutes Amendment (Miscellaneous Provisions) Act 1972 (SA).
[1517]
No. 87 of 1981. See Reprint No. 26, as in force at November 7 2007. This
Act was originally modelled on the New South Wales Limitation Act 1969.
[1518]
Section 48(3)(b), Limitation Act
1936 (No. 1168 of 1938), January 18 2007. See Handford Limitation
of Actions: The Laws of Australia (2nd ed 2007), at 118-119.
[1519]
Section 48(3b), Limitation Act
1936 (No. 1168 of 1938), January 18 2007.
[1520]
As to what constitutes “material
facts” see section 48(3a); Sola Optical Australia Pty Ltd v Mills (1987)
163 CLR 628; Napolitano v Coyle (1977) 15 SASR 559; Wright v
Donatelli (1995) 65 SASR 307 (FC); Lovett v Le Gall (1975) 10 SASR
479 (FC); Berno Bros Pty Ltd v Green’s Steel Constructions Pty Ltd (1992)
84 NTR 1; 107 FLR 279; Handford Limitation of Actions: The Laws of Australia
(2nd ed 2007), at 118-119.
[1521]
Section 48(3)(b), Limitation Act
1936 (No. 1168 of 1938), version of January 18 2007. See further
Handford Limitation of Actions: The Laws of Australia (2nd ed
2007), at 118.
[1522]
No. 98 of 1974. This Act resulted
from the Tasmania Law Reform Committee’s Report on Limitation of Actions (1973).
The Act adopted the reforms implemented in the English Limitation Act 1939 and
certain of the provisions of the English 1954 Act on personal injuries.
[1523]
See Schedule 1, Table of
Amendments. See also Tasmania Law Reform Commission Limitation of
Actions for Latent Personal Injuries (Report No. 69, 1992).
[1524]
Date of commencement of the Limitation
Amendment Act 2004.
[1525]
Section 5(1), Limitation of
Actions Act 1974 (No. 98 of 1974).
[1526]
But see Knight v Smith [1975]
Tas SR 83 (FC), where Neasy J (Green CJ and Chambers J concurring) held that
the court might taken into account factors such as whether and to what extent
the defendant suffered prejudice by the delay; whether the plaintiff had an
arguable case; and whether there was a satisfactory explanation for the delay.
[1527]
Section 5(3), Limitation of
Actions Act 1974 (No. 98 of 1974).
[1528]
Ibid at section 5(4).
[1529]
Ibid at section 5A(3).
[1530]
Introduced by the Limitation
Amendment Act 2004 (No. 66 of 2004).
[1531]
Section 5A(5), Limitation of
Actions Act 1974 (No. 98 of 1974).
[1532]
No. 6295 (Vic) (version 090, 31
December 2007). This Act consolidated the Limitation of Actions Act
1955 (Vic) and the Limitation of Actions (Extension) Act 1956 (Vic).
These Acts resulted from the Victoria Statute Law Revision Committee Report
on the Limitation of Actions Bill (1949), which was based on the
recommendations of the Wright Committee Report (1936).
[1533]
See e.g. Victorian Chief Justice’s
Law Reform Committee Report on Limitation of Actions in respect of Personal
Injuries and Death (1972); Victorian Chief
Justice’s Law Reform Committee Report on Limitation of Actions in Personal
Injuries Claims (1981).
[1534]
See e.g. Limitation of Actions
(Personal Injuries) Act 1972 (Vic)(No. 8300); Limitation of Actions
(Personal Injuries Claims) Act 1983 (Vic.)(No. 9884); Limitation of
Actions (Amendment) Act 1989 (Vic)(No. 21); Limitation of Actions
(Amendment) Act 2002 (Vic) (No. 52).
[1535] Section 27N, Limitation of Actions Act 1958 (Vic)(No. 6295; version 090, 31.12.2007).
[1536] Ibid at section 27N, irrespective of whether the act or
omission complained of occurred before or after May 21 2003.
[1537] Inserted by
section 3, Limitation of Actions (Personal Injuries) Act 1972 (Vic)(No. 8300);
substituted by section 5, Limitation of Actions (Personal Injuries Claims)
Act 1983 (Vic.)(No. 9884).
[1538] Section 23A(2), Limitation of Actions Act 1958 (Vic)(No. 6295).
[1539] Ibid at section
23A(2).
[1540]
Section 23A(3), Limitation of Actions Act 1958 (Vic)(No. 6295). See further Handford Limitation of
Actions:The Laws of Australia (2nd ed 2007), at 132-133.
[1541]
Wrongs and Limitation of Actions
(Insurance Reform) Act 2003 (Vic)(No. 60 of 2003).
[1542]
Review Panel of the Australian
Commonwealth Review of the Law of Negligence: Final Report (September
2002) (“the Ipp Committee Report”).
[1543]
As to “discoverability”, see section
27F, Limitation of Actions Act 1958 (Vic)(No. 6295; version 090,
31.12.2007).
[1544]
Section 27D(1), Limitation of
Actions Act 1958 (Vic)(No. 6295; version 090, 31.12.2007). Inserted
by section 14, Wrongs and Limitation of Actions (Insurance Reform) Act 2003 (Vic)(No.
60 of 2003).
[1545]
Ibid at section 27E.
[1546]
Ibid at section 27G.
[1547]
Ibid at section 27H.
[1548]
Ibid at section 27I.
[1549]
Ibid at section 27K.
[1550]
Ibid at section 27L.
[1551]
Ibid at section 27L(2).
[1552]
No. 75 of 2005 (version as at 9 December
2007).
[1553]
Section 5(1AAA), Limitation of Actions Act 1958 (Vic)(No. 6295; version
090, 31 December 2007).
[1554]
Ibid at section 23B.
[1555]
Ibid at section 23B(2).
[1556]
No. 19 of 2005. This Act
replaced the Limitation Act 1935 (WA), which has now been
repealed (with savings) by the Limitation Legislation Amendment and Repeal
Act 2005 (WA)(No. 20 of 2005).
[1557]
Division 3 (sections 38-42), Limitation
Act 2005 (WA)(No. 19 of 2005).
[1558]
Section 15, Limitation Act 2005 (WA)(No.
19 of 2005).
[1559]
Ibid at section 40(2).
[1560]
Ibid at section 40(3).
[1561]
Ibid at section 40(4).
[1562]
Law Reform Commission of Western Australia Report on Limitation and notice
of actions: latent disease and injury (Project No. 36(I), 1982), at
paragraphs 4.25-4.32.
[1563]
Law Reform Commission of Western
Australia Report on Limitation and notice of actions: latent disease and
injury (Project No. 36(I), 1982), at 55-56; Law Reform Commission of
Western Australia 30th Anniversary Report Implementation Report (2002),
at 119.
[1564]
Law Reform Commission of Western
Australia 30th Anniversary Report Implementation Report (2002),
at 119.
[1565]
Law Reform Commission of Western Australia
Report on Limitation and Notice of Actions (Project No. 36 II, 1997), at
paragraph 7.40.
[1566]
Ibid at paragraph 7.40.
[1567]
Clause 12, Consultation Draft: Limitation
Defences Bill 2007 (NZLC 69, 2007). See also Clause 7(3), Consultation
Draft: Limitation Defences Bill 2007 (NZLC 69, 2007). Such an extension may only be made by a court or tribunal
in which the relevant proceeding has been commenced and an application was made
to that court or tribunal for that purpose, or by agreement of the parties in
accordance with clause 38 of the draft Bill. See clauses 12(2) and 38 of
the Draft.
[1568]
Clause 38(1), Consultation Draft:
Limitation Defences Bill 2007 (NZLC 69, 2007).
[1569]
Clause 12(3), Consultation Draft:
Limitation Defences Bill 2007 (NZLC 69, 2007).
[1570]
See Alberta Institute of Law Research and
Reform Limitations (Report No. 55, December 1989) and Limitations (Report
for Discussion No. 4, 1981).
[1571]
Alberta Institute of Law Research and
Reform Limitations (Report for Discussion No. 4, September 1986), at
paragraph 2.154.
[1572]
C.C.S.M. c. L150.
[1573]
Section 14(1), Limitation of Actions
Act RSM 1987 CCSM c. L150.
[1574]
Ibid at section 14(5).
[1575]
Ibid at section 14(4).
[1576]
Manitoba Law Reform Commission The
Limitation of Actions Act: Draft Report for Consultation (15 June 2009) at
33.
[1577]
Manitoba Law Reform Commission The
Limitation of Actions Act: Draft Report for Consultation (15 June 2009) at
33.
[1578]
Section 3(2), Limitation of
Actions Act 1989 (NS).
[1579]
Ibid at section 3(2).
[1580]
Ibid at section 3(4).
[1581]
Section 3(6), Limitation of
Actions Act 1989 (NS).
[1582]
Section 3(7)(a), Limitation of
Actions Act 1989 (NS).
[1583]
Section 40, Limitation Act 1985 (A1985-66);
Republication No. 16 of April 12 2007.
[1584]
Section 44, Limitation Act 1981 (NT);
section 48, Limitation of Actions Act 1936 (SA); section 14(1), Limitation
of Actions Act 1987 (Man).
[1585]
Section 6(3), Limitation Act 1979
(BC).
[1586]
City of Kamloops v Nielsen
(1984) 10 DLR (4th) 641 (Supreme Court of Canada). As a result of this
decision, the discoverability principle is now of general application. See Central
Trust Co v Rafuse (1986) 31 DLR (4th) 481 (Supreme Court of Canada); KM
v HM (1992) 96 DLR (4th) 289 (Supreme Court of Canada).
[1587]
Invercargill City Council v
Hamlin [1994] 3 NZLR 513 (New Zealand Court of Appeal); upheld by the Privy
Council at [1996] 1 NZLR 513. Here, the plaintiff
suffered economic loss when the market value of property became depreciated as
a result of a defect in the property. The Privy Council affirmed the
proposition that the cause of action arose when this defect became reasonably
discoverable. See further G D Searle & Co v Gunn [1996] 2 NZLR
129; S v G [1995] 3 NZLR 681.
[1588]
See further Law Reform Commission Report
on the Statute of Limitations: Claims in Respect of Latent Personal Injuries (LRC-
21, 1987) at 28-34; Urie v Thompson (1949) 337 US 163.
[1589]
See Davies “Limitations of the Law
of Limitation” (1982) 98 LQR 249.
[1590]
Law Reform Commission of Western Australia
Report on Limitation and Notice of Actions (Project No 36 (II), 1997) at
paragraph 3.9.
[1591]
Law Reform Commission of Western
Australia Report on Limitation and notice of actions: latent disease and
injury (Project No. 36(I), 1982) at paras 4.12-4.20.
[1592]
Firman v Ellis [1978] QB 886,
905 (Lord Denning MR).
[1593]
Law Reform Commission of Western
Australia Report on Limitation and notice of actions (Project No.
36(II), 1997) at paragraph 5.49.
[1594]
Firman v Ellis [1978] QB 886.
[1595]
Ibid at 911
[1596]
Law Reform Commission of Western
Australia Report on Limitation and notice of actions: latent disease and
injury (Project No. 36(I), 1982) at paragraphs 4.12-4.20
[1597]
Ibid at paragraph 7.17.
[1598]
Law Reform Commission Report on
Claims in Contract and Tort in Respect of Latent Damage (Other than Personal
Injury) (LRC 64, 2001) at paragraph 4.11.
[1599]
Primor Plc v
Stokes Kennedy Crowley [1996] 2 IR 459, 475.
[1600]
Ó Domhnaill v Merrick
[1984] IR 151, 165.
[1601]
J O’C v Director of
Public Prosecutions [2000] 3 IR 478, 499-500.
[1602]
Order 27, rule 1 of the
Rules of the Superior Courts (RSC). Should be delivered within 21 days of entry
of appearance (O 20, r 3, RSC).
[1603]
Order 36, rule 12(b),
RSC. Should be given within six weeks after close of pleadings (O 36 r 12,
RSC).
[1604]
Order 122, rule 11, RSC.
[1605]
Order 19, rule 28
RSC. See further Delaney Striking out where No Reasonable Cause of
Action, where Claim Frivolous or Vexatious or where Clearly Unsustainable (2000)
18 ILT 127.
[1606]
See Barry v Buckley [1989]
IR 306; Sun Fat Chun v Osseous ltd [1992] 1 IR 425; Wicklow County
Council v O’Reilly & ors [2007] IEHC 71.
[1607]
See e.g. Primor v
Stokes Kennedy Crowley [1996] 2 IR 459; Ó Domhnaill v Merrick [1984]
IR 151; Toal v Duignan [1991] ILRM 140.
[1608]
The locus classicus in this
regard is Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459 but the
groundwork was laid in 1979 in Rainsford v Limerick Corporation [1995] 2
ILRM 561. For a summary of the principles applicable in civil
proceedings, see J O’C v Director of Public Prosecutions [2000] 3 IR
478, 499-500; this re-statement of the law was deemed “very pertinent” in Shanahan
& Others v PJ Carroll Ltd [2007] IEHC 229.
[1609]
Rainsford v Limerick Corporation [1995]
2 ILRM 561, 567; Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459,
467.
[1610]
Rainsford v Limerick Corporation [1995]
2 ILRM 561, 567; Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459,
466.
[1611]
Abrahamson Developments in Delay
- no more comfortable assumptions (2006) 2(2) JCPP 2.
[1612]
See Southern Mineral Oil Limited
(in liquidation) v Coonev [1997] 3 IR 549, 571.
[1613]
Rainsford v Limerick Corporation [1995]
2 ILRM 561, 567.
[1614]
Ibid at 567.
[1615]
Primor plc v Stokes Kennedy
Crowley [1996] 2 IR 459, 466.
[1616]
Dowd v Kerry County Council [1970] IR 27, 41-42.
[1617]
Primor Plc v Stokes
Kennedy Crowley [1996] 2 IR 459, 475.
[1618]
Rainsford v Limerick Corporation [1995]
2 ILRM 561, 570-1.
[1619]
Stephens v Paul Flynn Ltd [2005] IEHC 148.
[1620]
Primor Plc v Stokes
Kennedy Crowley [1996] 2 IR 459, 466.
[1621]
Allen v Sir Alfred McAlpine Sons
& anor [1968] 2 QB 229, 268.
[1622]
See J.O’C. v The Director of
Public Prosecutions [2000] 3 I.R. 478, 499-500.
[1623]
Southern Mineral Oil Limited (in
liquidation) v Coonev (1997) 3 IR 549, 562.
[1624]
Allen v Sir Alfred McAlpine Sons
& anor [1968] 2 QB 229, 269.
[1625]
McCormack v DPP & ors and
Farrell v DPP [2008] IESC 63. Kearns J. expressly
agreed with the decision of Edwards J. in the High Court. He also cited a
similar view expressed by Fennelly J. giving the majority judgment of the
Supreme Court in O’H v DPP [2007] 3 IR 299.
[1626]
Ibid. Kearns J. gave the
example of “an
offence alleged to have occurred in a small rural community where the
applicant’s identity would be well known, or in the case of an elderly applicant
who might in addition be afflicted with other medical problems likely to be
exacerbated by stress and anxiety.”
[1627]
McCormack v DPP & ors and
Farrell v DPP [2008] IESC 63.
[1628]
Gilroy v Flynn [2005] 1 ILRM 290. Denham and Fennelly JJ.
concurred.
[1629]
Ibid.
[1630]
Abrahamson Developments in Delay
- no more comfortable assumptions (2006) 2(2) JCPP 2.
[1631]
See Rules of the Superior Courts
(Order 27 (Amendment) Rules) 2004 (S.I. No. 63 of 2004).
[1632]
Abrahamson Developments in Delay
- no more comfortable assumptions (2006) 2(2) JCPP 2.
[1633]
Morrissey v Analog Devices BV [2007] IEHC 70.
[1634]
Gilroy v Flynn [2004] IESC 98.
[1635]
J. O’C. v DPP [2000] 3 IR
478.
[1636]
Ibid at 495.
[1637]
Ibid at 495.
[1638]
J. O’C. v DPP [2000] 3 IR
478, 499-500.
[1639]
The courts have a general discretion
to enlarge any time limit prescribed by the Rules; see e.g. Order 122, rules 7
and 8, RSC.
[1640]
Abrahamson Developments in Delay
- no more comfortable assumptions (2006) 2(2) JCPP 2.
[1641]
See Gilroy v Flynn [2009] 1
ILRM 290.
[1642]
Stevens v Paul Flynn Ltd [2005] IEHC 148.
[1643]
Stevens v Paul Flynn Ltd [2008] IESC 4.
[1646]
See e.g. Wicklow County Council v
O’Reilly & Others [2007] IEHC 71; Halpin v Smith [2007] IEHC 279; Comcast International
Holdings Inc v Minister for Public Enterprise [2007] IEHC 297; Flynn v AIB plc &
Others [2008] IEHC 199.
[1651]
Desmond v MGN Ltd [2008] IEHC 56.
[1652]
Crawford Inspector of Taxes v
Centime Ltd [2005] IEHC 328.
[1653]
Crawford Inspector of Taxes v
Centime Ltd [2005] IEHC 328.
[1656]
Ibid.
[1657]
See e.g. Noonan (aka Hoban) v DPP
[2007] IESC 34.
[1660]
See e.g. Southern Mineral Oil Ltd
v Cooney [1997] 3 IR 549.
[1661]
[1978] 1 AC 297.
[1662]
Ibid at 322.
[1663]
Ibid at 328.
[1664]
Ibid at 325.
[1665]
[1979] 1 WLR 592, 594 (Wilberforce
LJ).
[1666]
[1978] 1 AC 297, 322.
This duty was first established in Rowe v Tregaskes [1968] 1 WLR 1475.
[1667]
[1994] 1 ILRM 512. See further
Williams A New Approach to Pre-Issue Delay in Civil Actions? (2008) Bar
Review.
[1668]
Hogan v Jones [1994] 1 ILRM
512, 516.
[1672]
[1997] 3 IR 549, 571.
[1673]
[1994] 1 ILRM 512.
[1675]
[2007] IEHC 71, § 7.9. See further the
decision of Hamilton CJ in Sheehan v Amond [1982] IR 235.
[1676]
Birkett v James [1978] 1 AC
297, 322.
[1677]
Department of Transport v Chris
Smaller (Transport) Ltd [1989] 2 WLR 578, 585.
[1678]
[1991] ILRM 140, 142.
[1679]
Ibid at 142-3. See also
the judgment of McCarthy J. in Donohue v Irish Press plc [2007] IEHC 264, at § 15.
[1680]
[1991] ILRM 135. The plaintiff
suffered personal injuries at birth in 1961. He instituted proceedings in
1984.
[1681]
Toal v Duignan (No. 2) [1991]
ILRM 140, 142.
[1682]
Guerin v Guerin [1992] 2 IR
287, 293. The plaintiff suffered personal injuries aged 4, in August
1964. He instituted proceedings in December 1984. The proceedings were
“not prosecuted with any great dispatch”. Costello J focussed solely on the
pre-issue delay, however, finding it to be inordinate but excusable.
[1683]
Kelly v O’Leary [2001] 2 IR
526. The plaintiff issued proceedings in 1998 in respect of personal injuries
that allegedly occurred between 1934 and 1947.
[1684]
J MacH v JM [2004] 3 IR
385. It should be noted that Ó Domhnaill v Merrick [1984] IR 151
has been equated with the above cases, but the motion to dismiss in that case
was, in fact, based on a mixture of pre- and post-commencement delay. The
plaintiff sustained personal injuries in 1961, aged 3. Her claim was
initiated 16 years later, in 1977. She then delayed further, and sought
an extension to deliver a statement of claim in 1982.
[1685]
Southern Mineral Oil Limited (in
liquidation) v Coonev [1997] 3 IR 549, 560.
[1686]
J MacH v JM [2004] 3 IR 385.
[1687]
Southern Mineral Oil Ltd (in liquidation)
v Cooney [1997] 3 IR 549.
[1688]
Ibid at 562.
[1689]
Southern Mineral Oil Ltd (in
liquidation) v Cooney [1997] 3 IR 549, 562.
[1690]
Section 3, Statute of Limitations
(Amendment) Act 2000. Emphasis added.
[1691]
See e.g. Tolley v Morris
[1979] 1 WLR 592. The House of Lords refused to assess the inordinacy of the pre-issue
delay even though the limitation period was very lengthy owing to the
plaintiff’s minority, and the defendant had been prejudiced by the delay. Lords
Wilberforce and Dilhorne dissented.
[1692]
21 Jac. 1, c. 16.
[1693]
Section 23, Common
Law Procedure Amendment Act (Ireland) 1853 (16 & 17 Vic, c.113).
[1694]
Ibid at section
24.
[1695]
Section 7, Statute of
James I 1623 (21 Jac. 1, c.16).
[1696]
Section 20, Common
Law Procedure Amendment Act (Ireland) 1853 (16 & 17 Vic, c.113).
[1697]
Ibid at section
22.
[1698]
Peregrine Bingham The
Law of Infancy and Coverture (Burlington: Chauncey Goodrich, 1849) at 180.
[1699]
Ibid at
180-181. The jurist continued: “They who, from some ill-defined notion
of justice or generosity, would hold out to women an absolute equality, only
hold out to them a dangerous snare.”
[1700]
45 & 46 Vict, c.
75. That Act was repealed in full by the Married Women’s Status Act
1957 (No. 5 of 1957).
[1701]
19 & 20 Vic, c. 97.
[1702]
19 & 20 Vic, c. 97.
[1703]
Section 8, Forfeiture Act 1870
(33 & 34 Vic, c. 23). Section 8 was repealed in England and Wales by the Criminal
Justice Act 1948 (c. 58) and in Northern Ireland by the Criminal Justice
Act (Northern Ireland) Act 1953 (c. 14). It was repealed in Ireland
by the Criminal Justice Act 1997.
[1704]
Dáil Debates, volume 154, March 1
1956, Statute of Limitations Bill, 1954 - Second Stage, at 1147.
[1705]
Sections
20 and 22 of the Common Law Procedures (Ireland) Act 1853, among other
provisions, were repealed by the Statute of Limitations 1957.
[1706]
Dáil Debates, volume 154, March 1
1956, Statute of Limitations Bill, 1954 - Second Stage, at 1147.
[1707]
No. 36 of 1933.
[1708]
See Part III of the Schedule to the Statute
of Limitations 1957.
[1709]
Section 48(1), Statute of
Limitations 1957.
[1710]
In 2001 the Commission recommended
that the term be replaced with a wider concept incorporating “adult incapacity”
and infancy. See Law Reform Commission Report on The Statutes of
Limitations: Claims in Contract and Tort in Respect of Latent Damage (other
than Personal Injury) (LRC 64-2001) at paragraph 7.07.
[1711]
Section 49(1)(a), Statute of
Limitations 1957.
[1712]
Section 5(1), Statute of
Limitations (Amendment) Act 1991, as amended by section 7(c), Civil
Liability and Courts Act 2004. See sections 3(1), Statute of
Limitations (Amendment) Act 1991 and 48(1), Civil Liability Act 1961 for
a definition of what constitutes a personal injuries or wrongful death action.
[1713]
See section 5(3), Statute of
Limitations Act 1991. Section 13(8), Sale of Goods and Supply of
Services Act 1980 inserted a new section 49(5) into the Statute of
Limitations 1957, setting a two-year limitation period for such actions.
Since the reduction of the limitation period to two years introduced under
section 7(c), Civil Liability and Courts Act 2004, section 5(3) of the
1991 Act is obsolete.
[1714]
Section
23(3), Malicious Injuries Act 1981.
[1715]
Section 49(3), Statute of
Limitations 1957.
[1716]
Section 49(1)(e), Statute of
Limitations 1957.
[1717]
[1977] IR 55, 72 (SC).
[1718]
[1977] IR 55 (SC).
[1719]
[1977] IR 55, 72 (SC).
[1720]
See section 49(1)(d), Statute of
Limitations 1957 - the relevant actions are (i) Actions to recover land or
money charged on land; (ii) Actions by an incumbrancer claiming sale of land
and (iii) Actions in respect of a right in the nature of a lien for money's
worth in or over land for a limited period not exceeding life, such as a right
of support or a right of residence, not being an exclusive right of residence
in or on a specified part of the land.
[1721]
Section 49(1)(b), Statute of
Limitations 1957.
[1722]
Section 49(1)(c), Statute of
Limitations 1957.
[1723]
Section 48(2), Statute of Limitations 1957. This is expressed to be
without prejudice to the generality of the phrase.
[1724]
See the judgment of Lord Denning MR in Kirby v Leather [1965] 2 QB
367; applied in Ireland by Kelly J. in F.D. (An Infant) v Registrar of Wards
of Court [2004] 3 IR 95. See also the judgment of Barron J. in Rohan v
Bord na Móna [1990] 2 IR 425.
[1725]
Brady & Kerr The Law of Limitations (2nd ed 1994) at
31.
[1726]
See generally Law Reform Commission Consultation
Paper on Vulnerable Adults and the Law: Capacity (LRC CP 37-2005) and
Report on Vulnerable Adults and the Law (LRC 83-2006).
[1727]
Law Reform Commission Report on
The Statutes of Limitations: Claims in Contract and Tort in Respect of Latent
Damage (other than Personal Injury) (LRC 64-2001) at paragraph 7.08.
Further difficulties arise with supervening disabilities; see Brady & Kerr The
Law of Limitations (2nd ed., Law Society: Dublin, 1994) at 33
and Rohan v Bord na Móna [1990] 2 IR 425, 429-430.
[1728]
Law Reform Commission Report on
The Statutes of Limitations: Claims in Contract and Tort in Respect of Latent
Damage (other than Personal Injury) (LRC 64-2001) at paragraphs 7.08-7.13.
It was recommended that “adult incapacity” would apply “where a person is
incapable of the management of his affairs because of disease or impairment of
physical or mental condition.”
[1729]
By way of example see Headford v
Bristol and District Health Authority [1995] PIQR P180: proceedings were
started on behalf of the plaintiff (who had suffered brain damage at birth)
twenty-eight years after the birth, despite the fact that the parents, who
brought the proceedings, were aware that there were grounds for a claim within
a few months of the birth.
[1730]
Law Reform Commission Report on
The Statute of Limitations: Claims in Contract and Tort in Respect of Latent
Damage (other than Personal Injury) (LRC 64-2001) at paragraph 7.21.
[1731]
British Columbia Law Institute Report
on the Ultimate Limitation Period: Updating the Limitations Act (Report No.
19, 2002) at 25.
[1732]
Law Reform Commission Report on
Vulnerable Adults and the Law (LRC 83-2006).
[1733]
Ibid at paragraph 2.39.
[1734]
Law Reform Commission Report on
Vulnerable Adults and the Law (LRC 83-2006) at paragraph 1.73.
[1735]
The Scheme of the Mental Capacity
Bill 2008 is available at www.justice.ie
[1736]
Government Legislation
Programme, April 2009, available at www.taoiseach.ie
[1737]
A person can be taken into wardship
only if the President of the High Court is satisfied on the basis of medical
evidence that the person should be deemed to be of unsound mind and is
incapable of managing his affairs. See further Lunacy Regulation
(Ireland) Act 1871 (34 & 35 Vic, c. 22) and section 9, Courts
(Supplemental Provisions) Act 1961.
[1738]
34 & 35 Vic, c.22.
[1739]
Law Reform Commission Report on
Vulnerable Adults and the Law (LRC 83-2006). That report brought together
the issues canvassed in two consultation papers, the first on Law and the
Elderly (LRC CP 23 - 2003) and the second on Vulnerable Adults and the
Law: Capacity (LRC CP 37 - 2005).
[1740]
Law Reform Commission Report on
Vulnerable Adults and the Law (LRC 83-2006) at paragraph 6.58.
[1741]
See also the power of a person, at a
time when the person retains full capacity, to appoint an attorney under the Powers
of Attorney Act 1996. This could include power to conduct litigation on the
person’s behalf, which would come into force only where the appointing person
loses capacity.
[1742]
Law Commission for England and Wales
Limitation of Actions (Report No. 270, 2001) at paragraph 3.127.
[1743]
Scottish Law Commission Report on
Personal Injury Actions: Limitation and Prescribed Claims (Scot Law Com No.
207, December 2007) at 31.
[1744]
ASP 4.
[1745]
Ibid at 31.
[1746]
Scottish Law Commission Report on
Personal Injury Actions: Limitation and Prescribed Claims (Scot Law Com No.
207, December 2007) at 33.
[1747]
British Columbia Law Institute Report
on the Ultimate Limitation Period: Updating the Limitations Act (Report No.
19, 2002) at 24.
[1748]
Ibid at 26.
[1749]
Law Reform Commission Report on
The Statute of Limitations: Claims in Contract and Tort in Respect of Latent
Damage (other than Personal Injury) (LRC 64-2001) at paragraph 7.36.
[1750]
Section 22, Common Law Procedure
Amendment Act (Ireland) 1853 (16 & 17 Vic, c.113).
[1751]
Peregrine Bingham, The Law of
Infancy and Coverture (Burlington: Chauncey Goodrich, 1849) at 1.
[1752]
Law Commission for England and Wales
Limitation of Actions (Report No. 270, 2001) at paragraph 3.115.
[1753]
Section 49(2)(a)(i), Statute of
Limitations 1957, as enacted.
[1754]
See section 2(1)(a), Age of
Majority Act 1985 (No. 2 of 1985): a person attains full age if he
has attained the age of eighteen years or is or has been married. See further
section 31(1)(a), Family Law Act 1995: any marriage solemnised between
people either of whom is under the age of 18 years is not a valid marriage.
[1755]
Law Reform Commission Report on
The Statutes of Limitations: Claims in Contract and Tort in Respect of Latent
Damage (other than Personal Injury) (LRC 64-2001) at paragraph 7.32.
[1756]
See section 6, Guardianship of
Infants Act 1964.
[1757]
See e.g. Prof. Michael Jones Limitation Periods and Plaintiffs under a Disability - a Zealous
Protection? (1995)
14 CJQ 258.
[1758]
[1972] IR 144.
[1759]
As enacted, section 49(2)(a)(ii) of
the Statute provided that the postponement of the limitation period
owing to infancy would only apply to certain personal injuries actions where
the plaintiff proved that he or she was not in the custody of a “parent” at the
time of the accrual of the cause of action. “Parent” was defined so as to
include the infant plaintiff’s father, mother, grandfather, grandmother,
stepfather or stepmother, notwithstanding that the relationship is illegitimate
or in consequence of adoption under the Adoption Act 1952.
[1760]
[1972] IR 144, 156-157.
[1761]
[1972] IR 144, 157.
[1762]
Ó Domhnaill v Merrick [1984] 1 IR 151, 160-161. It is noteworthy that in Moynihan
v Greensmith [1977] IR 55 the Chief Justice indicated that the decision in O’Brien
v Keogh [1972] IR 144 seemed to be
incompatible with Foley v The Irish Land Commission [1952] IR and A.G.
v Southern Industrial Trust Ltd 118 [1957] 94 ILTR 161. The Supreme
Court reserved the question whether it was correctly decided that section
49(2)(a)(ii) of the Statute is repugnant to the Constitution. In
Campbell v Ward and McArdle (Carroll J) 28th
April 1981, however, the High Court found that the words of the Chief Justice in
Moynihan v Greensmith did not give her liberty to hear arguments as to
whether
O’Brien v Keogh was correctly decided. She considered
herself to be bound by the latter decision “until such time as the Supreme
Court reviews its decision.” No such review took place.
[1763]
Section 5(4), Statute of
Limitations (Amendment) Act 1991. Section 22(d) of the English Limitation
Act 1939 (inserted by section 2(2) of the Law Reform (Limitation of
Actions etc) Act 1954) was analogous to the Irish section
49(2)(a)(ii). Section 22(d) was removed by the English Limitation Act
1975. See Tolley v Morris [1979] 1 WLR 592.
[1764]
Law Reform Committee Twentieth
Report (Interim Report on Limitation of Actions in Personal Injuries Claims) (1974,
Cmnd 5630) at paragraph 108. See Law Commission for England
and Wales Limitation of Actions (Report No. 270, 2001) at paragraph
3.117, where the re-introduction of a custody clause was considered. The
Law Commission recommended no change to the law as it stands, worrying that the
effect of re-introducing a custody clause would be to penalise infant
plaintiffs whose parents / guardians were negligent in failing to commence
proceedings on their behalf.
[1765]
Ibid at paragraph 3.118.
[1766]
O'Brien v
Keogh [1972] IR 144.
[1767]
Law Reform Commission Report on
The Statutes of Limitations: Claims in Contract and Tort in Respect of Latent
Damage (other than Personal Injury) (LRC 64-2001) at paragraphs 7.27-7.30.
[1768]
SA 1996
cL-15.1 (came into force on 1st March, 1999).
[1769]
Alberta Institute of Law Research
and Reform Limitations (Report for Discussion No. 4, 1986) at 292-293.
[1770]
Section 5(13), Limitations Act RSA
2000, c.L-12.
[1771]
Sections 30-34, Limitation Act
2005 (WA), Act No. 19 of 2005.
[1772]
Section 33 (3), Limitation Act
2005 (WA), Act No. 19 of 2005 defines a “close relationship” so as to
include persons who are in the long-term or day-to-day care, welfare and
development of the plaintiff, or where the relationship is such that it is
reasonable in the circumstances for the plaintiff not to commence proceedings or
for the plaintiff not to wish to divulge the conduct or events in respect of
which an action would be founded.
[1773]
Explanatory Memo, Limitation Bill
2005 (Clause Notes), clause 33.
[1774]
Law Commission for England and Wales
Limitation of Actions (Report No. 270, 2001) at paragraph 3.120.
[1775]
33 & 34 Vic. c. 23.
[1776]
Section 48(1)(c), Statute of
Limitations 1957.
[1777]
Dáil Debates, volume 154, March 1
1956, Statute of Limitations Bill, 1954 - Second Stage, at 1147.
[1778]
See section 16 and Schedule 3,
Criminal Law Act 1997 (No. 14 of 1997).
[1779]
See Law Reform Commission Report
on The Statutes of Limitations: Claims in Contract and Tort in Respect of
Latent Damage (other than Personal Injury) (LRC 64-2001) at paragraph 7.04.
[1780]
In Busch v Stevens [1963] 2
WLR 511, at 515, Lawton LJ described the principle as follows (referring
to section 23 (4) of the English Limitation Act
1939):-“in the specific circumstances of
an acknowledgment or payment the right [of action] shall be given a
notional birthday and on that day, like the phoenix of fable, it rises again in
renewed youth – and also like the phoenix, it is still itself.”
[1781]
Dáil Debates, Vol. 154, Statute
of Limitations Bill, 1954 - Second Stage (1 March, 1956) at 1149.
[1782]
9 Geo 4, c. 14 (“Lord Tenteden’s Act”).
[1783]
19 &
20 Vict, c. 97.
[1784]
Dáil Debates, Vol. 154, Statute
of Limitations Bill, 1954 - Second Stage (1 March, 1956) at 1149.
[1785]
16 & 17 Vic, c. 113.
[1786]
See Real Property Limitation Act
1833 (3 & 4 Will. 4, c. 27); Real Property Limitation Act 1837 (7
Will. 4 & 1 Vic, c. 28); Real Property Limitation Act 1874 (37 &
38 Vic, c. 57).
[1787]
See Brady & Kerr The Law of
Limitations (2nd ed 1994) at 50.
[1788]
Alberta Institute of Law Research
and Reform Limitations (Report for Discussion No. 4, 1986) at 303.
[1789]
Section 58(1), Statute of
Limitations 1957.
[1790]
Ibid.
[1791]
See Millard v. McMahon (Henchy J)
15 January 1968, cited in Brady & Kerr The Law of Limitations (2nd
ed Law Society 1994) at 51.
[1792]
Good v Parry [1963]
2 WLR 846, 849 (Lord Denning MR); applied in Smith v Ireland [1983] ILRM
300. In that case, Finlay P. held that a letter from the Minister for Agriculture and Fisheries to the plaintiffs
acknowledging receipt of a request for payment and stating that a further
letter would issue as soon as possible could not be construed as an
acknowledgment of a debt owing to the plaintiff.
[1793]
Good v Parry [1963]
2 WLR 846, 849 (Lord Denning MR); applied in Smith v Ireland [1983] ILRM
300.
[1794]
Dáil Debates, Vol. 154, Statute of
Limitations Bill, 1954 - Second Stage (01 March, 1956) at 1151.
[1795]
Section 67, Statute of Limitations
1957.
[1796]
Section 70, Statute of Limitations
1957. This rule applied prior to the enactment of the Statute – see
Dáil Debates, Vol. 154, Statute of Limitations Bill, 1954 - Second Stage
(01 March, 1956) at 1152.
[1797]
Section 69, Statute of Limitations
1957. These rules apply where the debt is not appropriated to a
particular debt. If some or all of the debts are not
statute-barred, the payment will be deemed to be appropriate pari passus in
respect of the debts which are not statute-barred, unless the
circumstances in which the payment was paid indicate otherwise. If,
however, all of the debts are statute-barred, the payment will be deemed to be
appropriated pari passus in respect of each of the debts, unless the
circumstances in which the payment was paid indicate otherwise.
[1798]
Section 71(1), Statute of Limitations
1957.
[1799]
3 & 4 Will. 4, c. 27. See further Willis v Earl Howe [1893] 2 Ch. 545.
Section 26 is said to
have been framed in accordance with the recommendations of the Real Property
Commissioners and to have been intended to confirm the existing rules of equity as to the effect of fraud upon the
operation of the statutes of limitations. See Dr. E.P. Hewitt
Treatise on the Statutes of Limitations (1893) at 206, cited in Sheldon
v R.H.M. Outhwaite (U/W) Ltd [1994] 3 WLR 999
(CA).
[1800]
Sheldon v R.H.M. Outhwaite (U/W) Ltd
& Ors [1994] 3 WLR 999 (CA).
[1801]
Thorne v
Heard [1894] 1 Ch. 599, 605 (Lindley J.)
[1802]
See Sheldon v R.H.M. Outhwaite (U/W)
Ltd & Ors [1994] 3 WLR 999 (CA), which in
turn cites Betjemann v Betjemann [1895] 2 Ch. 474, 479 (Lindley
J.).
[1803]
Sheldon v R.H.M. Outhwaite (U/W) Ltd
& Ors [1994] 3 WLR 999 (CA).
[1804]
See Cave v Robinson Jarvis and Rolf
[2003] 2 WLR 1107, 1123 (HL).
[1805]
Law Reform Commission Report on The
Statutes of Limitation: Claims in Contract and Tort in Respect of Latent Damage
(Other than Personal Injury) (LRC 64-2001) at paragraph 7.41.
[1806]
Ibid at paragraph 7.42.
[1807]
Ibid at paragraph 7.42.
[1808]
Section 72(1), Statute of Limitations
1957.
[1809]
Brady and Kerr The Limitation of
Actions (2nd ed 1994) at 196-7, citing Trewin v Flower [1965]
NZLR 8.
[1811]
Malkin v Birmingham City Council (Court
of Appeal) 12 January 2000 cited in Law Commission for England and Wales Limitation
of Actions (Report No. 270, 2001) at paragraph 2.89.
[1812]
Lyall Land Law in Ireland (2nd
ed Round Hall: Sweet & Maxwell 2000) at 894.
[1813]
See Phillips-Higgins v Harper [1954]
1 QB 411, 418 (Pearson J).
[1814]
Brady and Kerr The Limitation of
Actions (2nd ed 1994) at 196, citing Re Vernon’s Estate [1901]
1 I.R. 1.
[1815]
See also Law Commission for England and
Wales Limitation of Actions (Report No. 270, 2001) at 49, fn 21; New
Zealand Law Commission Tidying the Limitation Act (NZLC R 61, July 2000)
at paragraph 23.