CONSULTATION PAPER

LIMITATION OF ACTIONS

 

(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 CONTENTS

 

Table of Legislation                                                                                                         xiii

 

Table of Cases                                                                                                                   xvii

Introduction   1

A     Background to the Project  1

B     The meaning of “Limitation of Actions”  2

C     The Statute of Limitations and other legislation on limitation periods  2

D     Overview of the Statute of Limitations 1957  4

E     Scope of the Consultation Paper  5

F     Outline of the Consultation Paper  8

CHAPTER 1                   EVOLUTION OF THE LAW ON LIMITATION                                  AND GUIDING PRINCIPLES  13

A     Introduction   13

B     The Origins of the Statute of Limitations  14

(1)  The Limitation Act 1623  15

(2)  Common Law Procedure (Ireland) Act 1853  16

(3)  Land-Related Actions  19

(4)  Reform in the 20th Century  20

C     Competing Constitutional Interests  22

(1)  The Plaintiff’s Interests  23

(2)  The Defendant’s Interests  25

(3)  The Public Interest / The Common Good   30

(4)  Judicial Review: Restricted Limitation Periods  32

(5)  Balancing the Various Rights and Interests  44

D     The European Convention on Human Rights  46

(1)  Right of Access to the Courts  47

(2)  Right to a Hearing within a Reasonable Time   49

(3)  Right to respect for private and family life   55

(4)  Right to an Effective Remedy  56

(5)  Deprivation of Property  57

E     Conclusion and Provisional Recommendations  58

CHAPTER 2                   CURRENT LAW OF LIMITATIONS  61

A     Introduction   61

B     The Statute of Limitations 1957  62

C     Basic Limitation Periods  64

(1)  Tort Actions  66

(2)  Contract Actions  87

(3)  Miscellaneous Actions  94

(4)  Actions to Recover Land   100

(5)  Actions in respect of Breach of Trust  110

(6)  Succession Actions  111

(7)  Actions by Beneficiaries  119

(8)  Survival of Actions  124

(9)  Claims for Equitable Relief  128

(10)     Actions for Restitution   131

(11)     Arbitrations  131

D     The Running of the Basic Limitation Period   132

E     Ultimate Limitation Periods  134

F     Judicial Discretion   135

G    Dismissal for Want of Prosecution   136

H     Postponement or Extension of the Limitation Period   137

I      Practice and Procedure   137

(1)  Effect of Expiry of the Limitation Period   137

(2)  Calculating the Limitation Period   140

(3)  Set-Offs and Counterclaims  141

J      General Problems with the Current Law    141

(1)  Complexity  142

(2)  Incoherence   142

(3)  Lack of Clarity  142

(4)  Classification Difficulties  143

(5)  Irrelevance   144

(6)  Time-Wasting and Costliness  145

(7)  Inaccessible   145

K     Conclusion and Provisional Recommendation   145

CHAPTER 3                   MODELS FOR REFORM: a CORE                                                        LIMITATION REGIME?  147

A     Introduction   147

B     What is a “Core Limitations Regime”?  147

C     Why Introduce a Core Regime?  148

D     Models for a Core Regime   149

(1)  Alberta  149

(2)  Western Australia  160

(3)  England and Wales  165

(4)  New Zealand   168

E     Conclusion and Provisional Recommendation   173

CHAPTER 4                   A UNIFORM BASIC LIMITATION PERIOD?  175

A     Introduction   175

B     Trends in the reform of basic limitation periods  175

(1)  Reduction of the Range of                                Different Limitation Periods  175

(2)  “Catch-All” Limitation Periods  177

(3)  Uniform Basic Limitation Periods  177

(4)  Provisional Recommendation   178

C     Length of the Uniform Basic Limitation Period   178

(1)  One Year?  180

(2)  Two Years?  182

(3)  Three Years?  182

(4)  Four Years?  184

(5)  Five Years?  186

(6)  Six Years?  187

(7)  A variety of fixed Lengths: the British              Columbia model 189

(8)  Other Considerations  189

(9)  Provisional Recommendation   190

D     Running the Basic Limitation Period   191

(1)  Date of Accrual 192

(2)  Date of the Act or Omission giving rise to                 the Action   194

(3)  Discoverability  196

(4)  Alternative Starting Dates: Accrual or      Discoverability  213

(5)  Conclusion and Provisional Recommendation   219

CHAPTER 5                   A UNIFORM ULTIMATE LIMITATION PERIOD?  221

A     Introduction   221

B     History of the Ultimate Limitation Period   221

(1)  Advantages of an Ultimate Limitation Period   222

(2)  Disadvantages of an Ultimate Limitation Period   224

(3)  Provisional Recommendation   224

C     Previous Recommendations  225

(1)  Actions in respect of Defective Premises  225

(2)  Personal Injuries Actions  225

(3)  Actions founded in Tort & Contract (excluding personal injuries)  226

(4)  Actions in respect of Non-Sexual Child Abuse   227

D     Appropriate Length of the Ultimate Limitation Period   228

(1)  10 years?  230

(2)  12 years?  232

(3)  15 years?  233

(4)  30 years?  234

(5)  Previous Recommendations (10 or 15 years)  236

(6)  Provisional Recommendation   237

E     Appropriate Starting Point of the Ultimate             Limitation Period   238

(1)  Selected Models for Reform    239

(2)  Provisional Recommendation (General)  253

F     Application to Personal Injuries Actions  253

(1)  The Orr Committee   253

(2)  Law Reform Commission of                              Western Australia (1997)  253

(3)  Law Commission for England and                        Wales (1998/2001)  254

(4)  Scottish Law Commission (2007)  256

(5)  Provisional Recommendation (Personal Injuries)  257

CHAPTER 6                   JUDICIAL DISCRETION   259

A     Introduction   259

B     Evolution of the Approach taken to Discretion   259

(1)  The Wright Committee (1936)  260

(2)  The Tucker Committee (1949)  261

(3)  The Edmund Davies Committee (1962)  261

(4)  The Orr Committee Report of 1975 -                 personal injuries  262

(5)  The Orr Committee Report of 1977 -                    Latent Damage   263

(6)  Law Commission for England and Wales             (1998, 2001)  264

C     Existing Models  267

(1)  Ireland   267

(2)  England and Wales  268

(3)  Scotland   273

(4)  Australia  275

(5)  New Zealand   291

(6)  Canada  291

(7)  Summary  294

D     The Merits and Drawbacks of Judicial Discretion   295

(1)  Merits  295

(2)  Drawbacks  296

E     Conclusion and Provisional Recommendations  297

CHAPTER 7                   DISMISSAL OF CLAIMS FOR WANT                                                 OF PROSECUTION   299

A     Introduction   299

B     General Principles  300

C     Recent Developments  303

(1)  Amendment of Order 27 RSC   304

(2)  Increased awareness of the Consequences of      Delay  305

(3)  Impact of the ECHR   306

(4)  Restrictions in Personal Injuries litigation   306

D     A Stricter Approach to Delay  307

(1)  Recent Reservations  309

(2)  A stricter approach to delay in other areas                  of the law    310

E     Relationship with the Statute of Limitations  313

(1)  Relevance of the Expiry of the Limitation Period   313

(2)  The House of Lords’ Approach   314

(3)  Ireland: The General Rule   315

(4)  Ireland: Exceptional Cases  316

F     Conclusion and Provisional Recommendation   319

CHAPTER 8                   POSTPONEMENT, SUSPENSION AND                                            EXTENSION OF LIMITATION PERIODS  321

A     Introduction   321

B     The Plaintiff’s ‘Disability’ 322

(1)  “Disability”: the General Rule   324

(2)  A new limitations regime – is there a continued     need for postponement where the plaintiff is   incapable of managing his affairs?  327

C     Acknowledgments or Part Payment by the defendant  343

(1)  Acknowledgments  344

(2)  Part Payments  346

(3)  A new limitations regime – is there a continued     need for the rules governing acknowledgment         and part payment?  347

D     Fraud and Fraudulent Concealment  347

(1)  A new limitations regime - is there a continued      need for postponement in the event of fraud or fraudulent concealment?  349

E     Actions seeking relief from the consequences of     Mistake   350

(1)  A new limitations regime - is there a continued      need for postponement in the event of mistake?  351

CHAPTER 9                   SUMMARY OF PROVISIONAL                                                            RECOMMENDATIONS  353

 

TABLE OF LEGISLATION

Act of Limitation 1540

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

A v Hoare

[2008] 2 WLR 311

UK

Allergan Pharmaceuticals (Ireland) Ltd v Noel Deane Roofing and Cladding Ltd

[2006] IEHC 215

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

[2005] 1 IR 577

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

[2008] IESC 63

Ireland

Crawford Inspector of Taxes v Centime Ltd

[2005] IEHC 328

Ireland

Desmond v MGN Ltd

[2008] IESC 56

Ireland

Devlin v Roche & Others

[2002] 2 IR 360

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

[2007] IEHC 371

Ireland

Firman v Ellis

[1978] QB 886

Eng

Gilroy v Flynn

[2005] 1 ILRM 290

Ireland

Gleeson v Feehan (No. 2)

[1997] ILRM 522

Ireland

Guerin v Guerin

[1992] 2 IR 287

Ireland

Harding v Cork County Council

[2008] IESC 27

Ireland

Hogan v Jones

[1994] 1 ILRM 512

Ireland

In re Article 26 and the Illegal Immigrants (Trafficking) Bill 1999

[2002] 2 IR 360

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

[2005] IEHC 406

Ireland

Kategrove (in receivership) v Anglo Irish Bank

[2006] IEHC 210

Ireland

Kearns & Fallon v McCann Fitzgerald

[2008] IEHC 85

Ireland

Kelly v Leitrim County Council

[2005] 2 IR 404

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

[2008] IESC 7

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

[2008] IEHC 274

Ireland

Morrissey v Analog Devices BV

[2007] IEHC 70

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

[1984] IR 36

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

[2007] IEHC 38

Ireland

O'Keeffe v Commissioner for Public Works

Supreme Court, 24 March 1980

Ireland

Openneer v Donegal County Council

[2005] IEHC 156

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

[2005] IEHC 294

Ireland

Rojack v Taylor & Buchalter

[2005] 1 IR 416

Ireland

Ryan v Attorney General

[1965] IR 294

Ireland

S v Minister for Justice, Equality and Law Reform

[2002] 2 IR 163

Ireland

Sinnott v Minister for Education

[2001] 2 IR 545

Ireland

Southern Mineral Oil v Cooney

[1997] 3 IR 549

Ireland

Stephens v Paul Flynn Ltd

[2005] IEHC 148

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

[2004] 1 IR 545

Ireland

Wicklow County Council v O'Reilly & Anor

[2007] IEHC 148

Ireland

Wolfe v Wolfe

[2006] IEHC 106

Ireland

 

 

Introduction

A                  Background to the Project

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]

B                  The meaning of “Limitation of Actions”

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]  

C                  The Statute of Limitations and other legislation on limitation periods

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.

D                  Overview of the Statute of Limitations 1957

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] 

E                  Scope of the Consultation Paper

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. 

F                  Outline of the Consultation Paper

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            

CHAPTER 1            EVOLUTION OF THE LAW ON LIMITATION AND GUIDING PRINCIPLES

A                  Introduction

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.

B                  The Origins of the Statute of Limitations

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)                The Limitation Act 1623

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]    

(2)                Common Law Procedure (Ireland) Act 1853

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. 

(3)                Land-Related Actions

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]

(4)                Reform in the 20th Century

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. 

C                  Competing Constitutional Interests

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)                The Plaintiff’s Interests

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]

(2)                The Defendant’s Interests

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.

(a)                The Right to a Fair Trial

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]

(b)               The Right to Own Property

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]

(3)                The Public Interest / The Common Good

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]

(4)                Judicial Review: Restricted Limitation Periods

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.  

(a)                Planning and Development Cases

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.

 

 

(i)                 S. 82(3A), Planning and Development Act 1963, as amended

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).

(ii)               S. 50, Planning and Development Act 2000, as amended

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]

(iii)              S. 82(3B), Planning and Development Act 1963

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.

(b)               Asylum and Immigration Cases

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]

(c)                Public Procurement Cases

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]

(d)               Order 84, rule 21: The Requirement to move “Promptly”

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]

(5)                Balancing the Various Rights and Interests

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]

D                  The European Convention on Human Rights

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)                Right of Access to the Courts

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]

(2)                Right to a Hearing within a Reasonable Time

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]

(a)                What length of time is “Reasonable”?

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] 

(b)               Findings against the Irish State

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]

(3)                Right to respect for private and family life

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]

(4)                Right to an Effective Remedy

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.

(5)                Deprivation of Property

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] 

E                  Conclusion and Provisional Recommendations

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            

CHAPTER 2            CURRENT LAW OF LIMITATIONS

A                  Introduction

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.

B                  The Statute of Limitations 1957

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.

C                  Basic Limitation Periods

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. 

(1)                Tort Actions

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.

(a)                Defamation

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 enactedLibel 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.

(I)                 1991 Commission Recommendations

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]

(II)                Mohan Report 2003

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] 

(III)              Defamation Act 2009

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]

(b)               Personal Injuries

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]

(i)                 The Injuries Board

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.

(I)                 The “Making of an Application”

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.

(II)                The Duration of an Assessment

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]

(III)              The Issue of an Authorisation

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.

(c)                Defective Vehicles

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]

(d)               Defective Products: 1985 EC Directive and 1991 Act

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.

(e)                Child Sexual Abuse

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.)

(f)                 Non-Sexual Child Abuse

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:

    1. Trespass to the person (assault and/or battery); or
    2. Personal Injuries (negligence and/or breach of duty).

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]

(i)                 Previous Recommendations

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]

(g)               Defective Premises

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]

(h)               Medical Negligence

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]

(i)                 Breach of Constitutional Rights

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)                Contract Actions

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.

(a)                Actions to recover a Penalty or Forfeiture

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]

(b)               Actions to recover sums owed by Tortfeasors

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]

(c)                Defective Vehicles Actions

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]

(d)               Simple and Quasi-Contract Actions

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]


 

(e)                Actions to recover sums recoverable by virtue of an enactment

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]

(f)                 Actions to enforce an award

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]

(g)               Actions for an Account

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.

(h)               Actions upon an Instrument under Seal

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]

(i)                 Speciality Debts - Company Law

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.

(j)                 Specific Performance

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.

(3)                Miscellaneous Actions

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.

(a)                Actions upon a Judgment

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]  

(b)               Successive Conversions / Wrongful Detentions

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] 

(c)                Admiralty / Salvage Actions

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]

(d)               Actions for a Contribution

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]

(e)                Revenue Actions

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.

(i)                 Actions to Recover Penalties incurred

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]

(ii)               Making of an Estimation

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]

(iii)              Actions to Recover Taxes paid

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]

(f)                 Malicious Injuries

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]

 

(4)                Actions to Recover Land

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.

(a)                Equitable Estates in Land; Land held on Trust; Settled Chattels

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]

(b)               Actions to Recover Arrears

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.

(c)                Actions in respect of Mortgages and Charges

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.  

(i)                 Actions by Mortgagees

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]

(ii)               Actions of Redemption by Mortgagors

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]

(iii)              The Redemption of Welsh Mortgages

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] 


 

(d)               Accrual / Adverse Possession

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.


 

 

(5)                Actions in respect of Breach of Trust

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.