REPORT
(LRC 104 - 2011)
© Copyright
Law Reform Commission
FIRST PUBLISHED
December 2011
ISSN 1393-3132
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 160
documents (Consultation Papers and Reports) 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 law reform 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.
The
Commission’s role also involves making legislation more accessible through
three other related areas of activity, Statute Law Restatement, the Legislation
Directory and the Classified List of Legislation in Ireland. 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. The Classified List of Legislation in Ireland is
a list of all Acts of the Oireachtas that remain in force, organised under 36
major subject-matter headings.
Membership
The Law Reform Commission consists of a President, one
full-time Commissioner and three part-time Commissioners.
The Commissioners at present are:
President:
Vacant
at time of going to print (December 2011)
Full-time
Commissioner:
Patricia
T. Rickard-Clarke, Solicitor
Part-time
Commissioner:
Professor
Finbarr McAuley
Part-time
Commissioner:
Marian
Shanley, Solicitor
Part-time
Commissioner:
Mr
Justice Donal
O’Donnell, Judge of the Supreme Court
Law Reform Research Staff
Director
of Research:
Raymond
Byrne BCL, LLM (NUI), Barrister-at-Law
Legal
Researchers:
Kate Clancy, LLB (Hons) (TCD)
Conor Cunningham BCL (Clinical)
(UCC), LLM (UCL)
Dannie Hanna BCL (NUI), LLM
(Cantab)
Donna Lyons LLB (Dub), LLM (NYU),
Attorney at Law (NY)
Tara Murphy BCL (Law with French
Law) (NUI), LLM (Essex), Barrister-at-Law
Máire Reidy BCL (NUI), LLM (NUI),
Barrister-at-Law
Statute
Law Restatement
Project
Manager for Restatement:
Alma
Clissmann, BA (Mod), LLB, Dip Eur Law (Bruges), Solicitor
Legal
Researcher:
Elaine
Cahill, BBLS, LLM Eur Law (NUI), Dipl. IP & IT, Solicitor
Legislation
Directory
Project
Manager for Legislation Directory:
Heather
Mahon LLB (ling. Ger.), M.Litt (TCD), Barrister-at-Law
Legal
Researchers:
Aoife Clarke BA
(Int.), LLB, LLM (NUI)
Barbara Brown
BA (Int.), LLB, Attorney-at-Law (NY)
Rachel Kemp BCL
(Law and German) LLM (NUI)
Aileen O‘Leary
BCL, LLM, AITI, Solicitor
Administration Staff
Head of Administration and Development:
Ciara Carberry
Executive
Officer:
Ann
Byrne
Legal
Information Manager:
Conor
Kennedy BA, H Dip LIS
Cataloguer:
Eithne
Boland BA (Hons), HDip Ed, HDip LIS, LLB
Clerical Officers:
Ann Browne
Liam
Dargan
Principal legal researcher for this report
Helen Kehoe BCL (Law
with French Law) (NUI), LLM (DUB), Solicitor
CONTACT DETAILS
Further
information can be obtained from:
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, including through their submissions and their participation in the seminar
on this topic held at the Commission’s offices on 7 February 2011:
Paul
Breen,
Solicitor, Dillon Eustace, Solicitors
Adrian
Brennan,
Solicitor, Office of the Director of Corporate Enforcement
Patricia
Byron,
Chief Executive, Injuries Board
Barrett
Chapman,
Solicitor, McCann FitzGerald, Solicitors
Caroline
Costello,
Senior Counsel, Bar Council of Ireland
Mary
Cummins,
Solicitor, Chief State Solicitor's Office
Antoinette
Doran,
Department of Justice and Equality
Sharon
Fahy,
School of Law, NUI Galway
Richard
Fallon,
Department of Justice and Equality
Pamela
Hanley,
Solicitor, Chief State Solicitor's Office
Elaine
Healy,
Solicitor, Dillon Eustace, Solicitors
Sinéad
Keavey,
Solicitor, William Fry, Solicitors
Deirdre
Kelly,
Solicitor, Dillon Eustace, Solicitors
Paul
Kenny,
Pensions Ombudsman
Catherine
Longstaff,
Medical Protection Society
John
O’Sullivan,
Barrister-at-Law
Rebecca
Ryan,
Solicitor, Matheson Ormsby Prentice, Solicitors
Martha Wilson, Solicitor, Hayes Solicitors
Full
responsibility for this publication lies, however, with the Commission.
Table of Legislation xi
Table of Cases xiii
B Overview of Limitations Legislation in Ireland
C The Statute of Limitations and other legislation
containing limitation periods
D Limitations Law Internationally and Terminology
E Key Principles in Review of the Law on Limitations
and the Move to a Core Limitations Regime
CHAPTER
1 current
limitations law, scope of the proposed reformS, and guiding principles
B Overview of Difficulties with Current Limitations
Law
C Scope of the Statute of Limitations 1957 and
the Report
(1) Competing Constitutional Interests
(2) European Convention on Human Rights
(3) Breach of Article 6 by Ireland arising from
excessive delay
(4) Conclusion and Recommendation
E General Developments in Limitations Law in Other
Jurisdictions and Models of Reform
(6) Model for Reform: A Core Limitations Regime
(1) Pleading the Statute of Limitations 1957
(2) Effect of Expiry of the Limitation Period
(3) Calculating the Limitation Period
(4) Concurrent wrongdoers and third party notices
CHAPTER
2 uniform
basic limitation period
B A Uniform Basic Limitation Period
C Length of the Uniform Basic Limitation Period
D Running the Basic Limitation Period
CHAPTER
3 UNIFORM
ULTIMATE LIMITATION PERIOD
B History and Function of the Ultimate Limitation
Period
C Length of an ultimate limitation period
(2) Previous Recommendations (10 or 15 years)
D Starting date of an ultimate limitation period
(1) Selected Models for Reform
E Application of the Ultimate Limitation Period to
Personal Injuries Actions
B Judicial Discretion to Dismiss Claims
(1) Very old claims not allowed to proceed even if
within Statute of Limitations
(2) Dismissal for abuse of process
(3) The Primor Test and Dismissal for Want of
Prosecution or Delay
(4) Equitable discretion and limitation periods
C Statutory Discretion to Extend Limitation Periods
(6) Advantages and disadvantages of Judicial Discretion
(7) Limited nature of Statutory Discretion
(8) Specific Guidance for the Statutory Discretion
D Retention of the Postponement Provisions in the 1957
Statute
(1) The plaintiff’s ‘disability’
(2) Acknowledgement and Part-Payment
CHAPTER
5 SUMMARY
OF RECOMMENDATIONS
Appendix Draft
Limitations Bill 2011
|
|
|
No. 41 of 1961 |
Irl |
|
Civil Liability and Courts Act 2004 |
No. 31 of 2004 |
Irl |
Common Law Procedure Amendment Act (Ireland) 1853 |
16 & 17 Vic, c.113 |
Irl |
Consumer Protection Act 1987 |
1987 c. 43 |
UK |
Criminal Law Act 1997 |
No. 14 of 1997 |
Irl |
Defamation Act 2009 |
No. 31 of 2009 |
Irl |
Defective Premises Act 1972 |
c. 35 |
UK |
European Convention on Human Rights Act 2003 |
No. 20 of 2003 |
Irl |
Forfeiture Act 1870 |
33 & 34 Vic, c.23 |
Irl |
Interpretation Act 2005 |
No. 23 of 2005 |
Irl |
Land and Conveyancing Law Reform Act 2009 |
No. 27 of 2009 |
Irl |
Liability for Defective Products Act 1991 |
No. 28 of 1991 |
Irl |
Limitation Act |
R.S.B.C. 1996, c. 266 |
BC |
Limitation Act 1950 |
No. 65 of 1950 |
NZ |
Limitation Act 1969 |
No. 31. Version for 6 July 2009. |
NSW |
Limitation Act 1975 |
c. 54 |
Eng |
Limitation Act 1980 |
c. 58 |
Eng |
Limitation Act 1985 |
A1985-66; Repub. No. 20 of 24 December 2010 |
ACT |
Limitation Act 2005 |
No. 19 of 2005 |
WA |
Limitation Act 2010 |
Public Act 2010, No. 110 |
NZ |
Limitation of Actions Act 1958 |
No. 6295 of 1958 |
Vic |
Limitations Act |
SS 2004, c.L-16.1 |
Sask'n |
Limitations Act |
RSA 2000, c. L - 12 |
Al'ta |
Limitations of Actions Act |
C.C.S.M. c. L150 |
Man |
Limitations of Actions Act 1931 |
S.M. 1931, c. 30 |
Man |
Limitations Act 2002 |
SO 2002, c.24, Schedule B |
Ont |
Limitations of Actions Act |
SNB 2009, c. L-8.5 |
New Bruns |
Malicious Injuries Act 1981 |
No. 9 of 1981 |
Irl |
Mercantile Marine Act 1955 |
No. 29 of 1955 |
Irl |
Prescription and Limitation (Scotland) Act 1973 |
c. 52 |
Scot |
Proceeds of Crime Act 1996 |
No. 30 of 1996 |
Irl |
Real Property Limitation Act 1833 |
3 & 4 Will IV, c.27 |
Irl |
Real Property Limitation Act 1874 |
37 & 38 Vic., c.57 |
Irl |
Sale of Goods and Supply of Services Act 1980 |
No. 16 of 1980 |
Irl |
Statute of Limitations 1623 |
21 Jac. I, c. 16 |
Irl |
Statute of Limitations 1957 |
No. of 1957 |
Irl |
Statute of Limitations (Amendment) Act 1991 |
No. 18 of 1991 |
Irl |
Statute of Limitations (Amendment) Act 2000 |
No. 13 of 2000 |
Irl |
Succession Act 1965 |
No. 27 of 1965 |
Irl |
TABLE OF CASES
|
|
|
UK |
||
Airey v Ireland |
(1979-1980) 2 EHRR 305 |
ECHR |
Allen v Sir Alfred McAlpine Sons and anor |
[1968] 2 QB 229 |
Eng |
Ashingdane v United Kingdom |
ECHR |
|
B v Murray (No. 2) |
Scot |
|
AB v Minister for Justice, Equality and Law Reform |
Irl |
|
AB v Nugent Care Society (formerly Catholic Social Services (Liverpool)) |
[2006] EWHC 3031, [2006] All ER (D) 431 |
Eng |
Barry v Ireland |
ECHR |
|
Bolger v O’Brien |
Irl |
|
Brady v Donegal County Council |
[1989] ILRM 282 |
Irl |
Buckley and Others (Sinn Féin) v Attorney General & anor |
[1950] IR 67 |
Irl |
Bula Ltd (in receivership) v Crowley & Ors |
Irl |
|
Byrne v Ireland |
[1972] IR 289 |
Irl |
Byrne v Minister for Defence |
Irl |
|
Cahill v Sutton |
[1980] IR 269 |
Irl |
Comcast International Holdings Inc v Minister for Public Enterprise |
Irl |
|
Desmond v MGN Ltd |
[2009] 1 IR 737 |
Irl |
Devlin v Roche and Others |
Irl |
|
Donnellan v Westport Textiles Ltd & Ors |
Irl |
|
Doran v Ireland |
ECHR |
|
Doran v Thompson Ltd |
[1978] IR 223 |
Irl |
Forbes v Wandworth Health Authority |
Eng |
|
G D Searle & Co v Gunn |
[1996] 2 NZLR 129 |
NZ |
Gilroy v Flynn |
Irl |
|
Golder v United Kingdom |
ECHR |
|
In re Illegal Immigrants (Trafficking) Bill, 1999 |
Irl |
|
Invercargill City Council v Hamlin |
[1994] 3 NZLR 513 |
NZ |
Kelly v O’Leary |
[2001] 2 IR 526 |
Irl |
Kenny v An Bord Pleanála |
Irl |
|
KR and Ors v Bryn Alyn Community (Holdings) Ltd |
Eng |
|
London Strategic Health Authority v Whiston |
[2010] 3 All ER 452 |
UK |
M.M. v Roman Catholic Church of Canada |
[2001] MBCA 148 |
Man |
McDonnell v Ireland |
[1998] 1 IR 141 |
Irl |
McBrearty v North Western Health Board |
Irl |
|
McFarlane v Ireland |
ECHR |
|
McGuinness v Armstrong Patents Ltd |
[1980] IR 289 |
Irl |
McMullen v Ireland |
ECHR |
|
Macauley v Minister for Posts and Telegraphs |
[1966] IR 345 |
Irl |
Manning v Benson & Hedges Ltd |
[2004] 3 IR 556 |
Irl |
Murphy v Grealish |
[2009] 3 IR 366 |
Irl |
Murphy v Greene |
[1990] 2 IR 566 |
Irl |
Murphy v Minister for Justice |
Irl |
|
Nash and Ors v Eli Lilly & Co and Ors |
[1993] 1 WLR 782 |
UK |
Newton v Cammell Laird & Co (Shipbuilders and Engineers) Ltd |
[1969] 1 WLR 415 |
UK |
J O’C v Director of Public Prosecutions |
[2000] 3 IR 478 |
Irl |
J O’M v O’Neill & Regan |
Irl |
|
Ó Domhnaill v Merrick |
[1984] IR 151 |
Irl |
O’Brien v Keogh |
[1972] IR 144 |
Irl |
O’Brien v Manufacturing Engineering Co. Ltd |
[1973] IR 334 |
Irl |
O’Reilly and Anor v Ireland |
[2006] 40 EHRR 40 |
ECHR |
O’Reilly v Granville |
[1971] IR 90 |
Irl |
O’Brien v Manufacturing Engineering Co. Ltd |
[1973] IR 334 |
Irl |
O'Dowd v North Western Health Board |
[1983] ILRM 186 |
Irl |
M.P. v Attorney General |
Irl |
|
Price and Lowe v United Kingdom |
ECHR |
|
Primor plc v Stokes Kennedy Crowley |
[1996] 2 IR 459 |
Irl |
In re R. Ltd |
[1989] IR 126 |
Irl |
Rainsford v Limerick Corporation |
[1995] 2 ILRM 561 |
Irl |
Read v Brown |
(1888) 22 QBD 128 |
Eng |
Ryan v Attorney General |
Irl |
|
Ryan v Connolly |
Irl |
|
S v G |
[1995] 3 NZLR 681 |
NZ |
Seymour v Williams |
[1995] PIQR 470 |
UK |
Sheehan v Amond |
[1982] 1 IR 235 |
Irl |
Smith v Central Asbestos Co Ltd |
[1973] AC 518 |
UK |
Stephens v Paul Flynn Ltd |
Irl |
|
Stubbings v United Kingdom |
ECHR |
|
Stubbings v Webb |
[1993] 1 All ER 322 |
Eng |
The State (O'Connell) v Fawsitt |
[1986] IR 362 |
Irl |
Tate v Minister for Social Welfare |
[1995] 1 IR 418 |
Irl |
Trustees Executors Ltd v Murray |
[2007] NZSC 27 |
NZ |
Tuohy v Courtney |
[1994] 3 IR 1 |
Irl |
W v W |
Irl |
|
White v Dublin City Council |
Irl |
|
Whitely v Minister for Defence |
Irl |
|
X v Sweden |
(App. No. 9707/82, judgment of 6 October 1982) |
ECHR |
1.
This Report forms part of the Commission’s Third Programme of Law
Reform 2008-2014,[1] and follows the publication in 2009 of a Consultation
Paper on Limitation of Actions.[2] The Commission
held a seminar on this topic on 7 February 2011, and it very much appreciates
the participation and insightful comments of those who attended, which greatly
assisted the Commission in its deliberations leading to the preparation of this
Report.
2.
This project follows the Commission’s long-standing work on the reform
of the law of limitations. 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,[3]
which led to the enactment by the Oireachtas of the Statute of Limitations
(Amendment) Act 1991. The general issue of limitation periods was also
addressed in the Commission’s 2005 Report on Reform and Modernisation of
Land Law and Conveyancing Law,[4] which led to
the enactment of the Land and Conveyancing Law Reform Act 2009.
3.
In Ireland, the law concerning limitation of actions, which is regulated
primarily by the Statute of Limitations 1957 (as amended), refers to the
statutory rules that limit the various periods of time available to a person to
initiate different civil claims (also known as civil actions) against another
person.[5]
4.
This system of rules allows the person bringing the claim (often called
the plaintiff[6]) a specific
amount of time, running from a specified date, within which to bring an action
against the defendant. A
plaintiff usually begins civil proceedings by issuing an originating document
in the appropriate court office. Once the plaintiff commences proceedings, the
limitation clock stops running.[7]
5.
If the plaintiff does not begin 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, in other words, that it is “statute-barred.” The defendant must then establish to
the court that the plaintiff began proceedings outside the time period allowed.
If the defendant satisfies the court that the plaintiff is
statute-barred, the defendant has a complete defence to, or immunity from, the
civil liability, regardless of whether the plaintiff has a valid claim. The law
of limitations operates, therefore, as a procedural defence to a claim that has
been brought outside the specified time limit; such a claim is also often
referred to as a “stale” claim.
6.
By way of example, for a civil claim based on a contract debt such as a
loan, the limitation period in the Statute of Limitations 1957 is 6
years from the date of the debt default (for example, the date when a payment
on the loan was due). If the plaintiff begins the claim 6 years and one day
after the debt default, the defendant may raise this and have the claim
dismissed because it is statute-barred under the Statute of Limitations 1957.
Similarly, for a straightforward personal injuries claim arising after a
traffic incident, the limitation period in the Statute of Limitations 1957 is
2 years from the date of the incident. If the plaintiff begins this type of
claim 2 years and one day after the incident, the defendant may raise this and
have the claim dismissed because it is statute-barred under the Statute of
Limitations 1957.
7.
As already noted, the law on limitation of actions in Ireland is
principally 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.[8]
8.
The 1957 Statute contains the relevant time limits for initiating many,
though not all, civil actions. With the enactment 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.[9] The result is that limitation periods are now to be
found in a large number of Acts[10] as well as
in the Statute of Limitations.
9.
In approaching the preparation of this Report, therefore, the Commission
was 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 notes, therefore, that it would not be
useful (or feasible) to remove these limitation periods from these 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.[11]
10.
While the Statute of Limitations 1957 does not, therefore,
contain a complete statement of the rules concerning limitation periods, this
Report concentrates on the 1957 Statute. As discussed in Chapter 1 below, this
is primarily because the 1957 Statute continues to set out the limitation periods
for the most commonly-litigated civil claims, namely contract-related claims
(often involving debt-related claims) and other non-contractual claims (tort
actions), including personal injuries claims.
11.
Like Ireland, virtually all countries have in place legislation that
imposes limitation periods within which civil claims must be initiated, and
these have been enacted for the same essential reason, namely, to avoid litigating
“stale” claims.[12] Ireland
shares with most other common law legal systems (such as Australia, New Zealand
and the United Kingdom) the underlying approach that the legislation on limitations
largely operates as a procedural defence to a claim. In many of the civil law
states (such as Canada, France and Germany) the comparable legislation often
uses the term “law of prescription.” This different terminology also reflects
two key differences. First, in civil law states, a failure to comply with a
prescribed limitation period often affects the substantive rights involved in
the civil claim or dispute. Secondly, in the common law systems, the concept of
prescription is, in general, limited to claims involving land ownership. Thus,
the 12 year period after which a person may be able to claim adverse possession
over land (in effect, a title that is “adverse” to the original owner) is
sometimes also described as prescription.[13]
12.
A related issue of terminology is that many common law states have, in
the process of reforming their law on limitations, also changed the name of the
main Act involved. Thus, many states have replaced a “Statute of Limitations”
with a “Limitations Act.” Similarly, in some international instruments that
have included provisions concerning time limits, and to which common law states
and civil law states have assented, the neutral term “limitation period” has
been used.[14] In
approaching its general statutory mandate to keep the law under review, the
Commission is always conscious that, where possible, terminology used should
facilitate comparison with comparable legislation in other states and in
relevant international agreements.[15] Reflecting
this approach, the Appendix contains a draft Limitations Bill to
implement the Commission’s recommendations in this Report.
13.
The Statute of Limitations 1957, and this Report, is concerned
with the effect of the lapse of time on legal rights or legal claims. In other
words, it deals with whether a person may be prevented from initiating or
continuing a civil claim because there is a considerable lapse of time between
when the issue it concerns arose and when the case has been initiated. It is a
basic matter of justice that a person should not delay unreasonably in bringing
a claim. Initiating and pursuing litigation is a serious matter, and undue
delays can become a cloud that hangs over the person, so it is better for that
person not to prolong its presence in their lives, personal or corporate.
Equally, any person facing potential litigation should be able to know that
certain claims must be brought within clearly defined time limits; and that
they will not face unreasonably “stale” claims. Similarly, from the point of
view of society, it is important that the valuable and limited resources of the
courts are not taken up with very old claims that it would be futile to
litigate. The law of limitation periods is, therefore, concerned with ensuring
that cases are initiated within a reasonable time, that is, ensuring that there
has been reasonable expedition leading up to the initiation of a claim.[16]
This emphasis on making clear that civil claims should be initiated within a
reasonable period complements the obligation to ensure that, once proceedings
are initiated, they are dealt with by the courts within a reasonable period.[17]
14.
The law of limitations developed over many centuries and, because of this,
the current law contains many different limitation periods that may have been
explicable when they were developed but do not necessarily retain a sense of
coherence. Thus, the key limitation period for initiating a personal injuries
claim is 2 years after, for example, a traffic incident, whereas the key
limitation period for initiating a contract claim is 6 years after the breach
of contract. There may have been a good reason why, in the early 1800s (when
the first recognisable Limitation Acts were enacted), a contract claim need not
be initiated for 6 years because, for example, it involved a claim over the
contents of cargo on a ship that had gone on a round-the-world trip. In an era
of internationally-required GPS requirements for merchant shipping (arising
from international conventions on safety at sea) and virtually instantaneous
communication, however, a 6 year time limits is very difficult to explain.
Because of this, many countries have examined their existing limitation laws by
reference to the key principles mentioned in the preceding paragraph and in
order to bring some clarity and, where possible, simplicity to the existing
law.
15.
The current law in Ireland fits the general picture that applied up to
recently in many comparable developed countries in that it reflects the
somewhat haphazard development of the law over many centuries. The Statute
of Limitations 1957 had the great benefit of bringing together into a
single consolidated Act the pre-1957 legislation in this area, but as the
discussion in this Report indicates the 1957 Statute is also similar to many
other Limitation Acts of the mid 20th century in that it retains
many complex elements that had been developed over the centuries. It did not,
therefore, examine the essential structure of the limitation laws which it
consolidated and which were largely based on the technology of the 19th
century. In many developed countries, this model of a Limitations Act has been
replaced by versions that have been based on a re-examination of the key
principles that underlie the law of limitations, taking into account the
reality of current technologies and the majority of cases that actually are
litigated in courts.
16.
As discussed in Chapter 1 of the Report, below, the most litigated civil
claims in Ireland are contract-related (often debt-based) claims and personal
injuries actions. The great majority of these are initiated within 2 years.
This also reflects experience internationally, and this has, in turn, led many
countries to introduce a generally-applicable limitation period of 2 or 3
years, usually referred to as a basic limitation period. Indeed, since 2005,
the general limitation period in Ireland for personal injuries claims is 2
years.[18] In addition,
many countries have also legislated for a “long stop” period, or ultimate
limitation period, of between 10 and 15 years. This is intended to take account
of unusual cases where a strict 2 years limitation period would operate
unfairly. A strict 2 year rule would prevent a claim being litigated, for
example, in connection with a defect in a building did not arise for 8 or 9
years or in connection with an illness that did not become symptomatic until
many years after the event involving exposure, for example to asbestos fibres.
The inclusion of an ultimate limitation period to deal with unusual cases is
often linked to the introduction of a rule that stops the limitation clock
until a person becomes aware, or ought on an objective standard of the
reasonable person to have become aware, of the damage or injury in question:
this is usually referred to as a discoverability test.
17.
Traditional laws on limitations, such as the Statute of Limitations
1957, often deal with the problem of unusual cases by providing that
specific matters such as that the person was under age (under 18) when the
event occurs stops the limitation clock; a similar approach is taken to situations
where fraud is alleged or where the case involves a hidden (latent) defect or
illness. In the more recent “core” limitation laws, these difficult and unusual
situations are often accommodated by allowing a court an exceptional discretion
to override or extend the basic or ultimate limitation period and allow a claim
to proceed if this appears to be in the interest of justice.
18.
Regardless of the type of limitations law involved, the following
questions must be answered satisfactorily:[19]
1. What event triggers the start
of the limitation period (the limitation period is sometimes referred to as
“the clock” or “time”, and so this is often described as “when does the clock
start to run” or “when does time start to run”)?
2. How long is the limitation
period?
3. What happens when the
limitation period is passed?
4. Can the limitation period be
suspended, shortened, extended or otherwise overridden?
19.
Some countries, including Ireland and the United Kingdom, have retained
the essential elements of traditional limitation laws, although they have also
introduced various modifications to take account of unusual and difficult
cases, such as personal injuries actions involving hidden, latent, injuries. In
Ireland, for example, the Oireachtas enacted a discoverability test in the Statute
of Limitations (Amendment) Act 1991, which implemented the Commission’s
1987 Report on the Statute of Limitations: Claims in Respect of Latent
Personal Injuries.[20] The 1991 Act
followed the approach taken in many other countries to deal with latent
injuries claims, exemplified internationally by the asbestos exposure cases
that emerged towards the end of the 20th century. In Ireland, the
most-litigated example of latent personal injuries were claims by members of
the Defence Forces arising from exposure to high noise levels, the Army
deafness claims, which emerged in the 1990s.
20.
A number of countries that have responded to these unusual and difficult
cases have gone further by legislating for core limitation laws. As discussed
in the Report in detail, these include Australia, Canada and New Zealand. There
are two principal reasons why countries have enacted core limitation laws.
First, they involve a clearer, more succinct, statement of limitation periods,
and usually comprise: a generally applicable basic limitation period, an
ultimate limitation period and a limited judicial discretion to extend these
periods in exceptional cases. The relative simplicity of such a law has the
benefit of reducing the potential for expensive “satellite” litigation that
revolves solely around whether the claim is within, or outside, the limitation
period. This Report includes discussion of such cases in Ireland, where for
example it has been debated in the High Court and Supreme Court whether a claim
is covered by a 2 years limitation period or a 6 year limitation period. Many
countries have taken the view that a more streamlined limitation law has the
real potential to prevent such satellite litigation, thus facilitating a more
efficient and effective civil justice process.
21.
A second major reason given for moving towards a core limitation regime
is based on the recognition that much civil litigation occurs in connection
with issues that, to one extent or another, are backed by some form of
insurance. The introduction of compulsory road traffic insurance (which had
resulted from the reality that, before then, many persons injured in traffic
accidents had been left uncompensated and therefore required care and social
security support from the State) led to an increase in civil claims arising
from road traffic incidents. Similarly, while employer’s liability insurance,
professional indemnity insurance or defamation insurance is not compulsory in
Ireland, many organisations and professionals (notably large employers, medical
practitioners, accountants, lawyers and media organisations) carry significant
levels of insurance. Because of the direct connection between the level of
civil claims and insurance costs, reform of limitations law has also been
considered against the background as to whether any reforms have the potential
to increase, or decrease, insurance costs.
22.
In this respect, it has been noted previously by the Commission that the
insurance industry in Ireland has suggested that, by contrast with the more
traditional limitations law exemplified by the 1957 Statute (which allows for
open-ended extension of the limitation periods related to the age of the
plaintiff and the other factors already mentioned), a core limitations regime,
with an ultimate limitation period of 12 or 15 years, would have the benefit of
providing some improvement in the actuarial calculation of potential losses.[21]
This is not to suggest that a core limitation law would lead directly to a
reduction in insurance premiums. It is clear that the main factor in
determining insurance costs is the actual level of claims. Thus, in connection
with the cost of road traffic insurance, measures such as those related to road
safety strategies (road engineering improvements as well as legislative reforms
related to drink-driving, such as mandatory breath testing, and penalty points
related to speeding offences) are much more influential in leading to insurance
premium reductions. The Commission considers, nonetheless, that a core
limitation regime would, at a minimum, have a neutral effect and is likely to
have a potential for some minor positive effects in terms of clarifying
actuarial risks. The Commission is not in a position to engage in a full
economic cost-benefit analysis concerning the introduction of a core limitation
regime, but its consultation process leading to this Report, including the
seminar it held in 2011, indicates that the views expressed to the Commission
in its previous work in this area remain valid. The Commission also notes in
this respect that, in 2010, a similar conclusion was arrived at in the context
of the introduction of New Zealand’s core limitation law, the Limitation Act
2010.[22]
23.
In Chapter 1, the Commission reviews existing limitations legislation in
Ireland. This includes a brief discussion of the historical origins of
limitations legislation in the State and the scope of the Statute of
Limitations 1957. The Commission also outlines the current problems
associated with the legislation.
24.
The Commission then outlines the guiding principles that must be
considered in analysing this topic, and in proposing reforms to limitations
legislation. In particular, the Commission is mindful that a limitations system
must take account of the competing rights and interests of the plaintiff and
the defendant, as well as the public interest, as set out in the Constitution
of Ireland and under the European Convention on Human Rights. The balancing of
these interests will ensure, to the greatest extent possible, fairness to both
the plaintiff and the defendant.
25.
A general comparative analysis is also included of what limitation
systems are in place in the other jurisdictions that are discussed throughout
the Report. This leads to the Commission’s general recommendation that a core
limitations law be enacted to regulate the most commonly-litigated claims,
contract claims and personal injuries actions.
26.
The Commission also discusses some procedural matters that apply when a
defendant argues that a claim is statute-barred, the effect of the expiry of a
limitation period and how to calculate a limitation period.
27.
In Chapter 2, the Commission discusses the first strand of the proposed
core limitation regime, the uniform basic limitation period. The Commission
then provides a summary of the key features of the basic limitation period, the
advantages it lends to a limitations system, its length and the commencement
date. These features are examined in detail, including a comparative analysis
of how such a uniform basic limitation period has been viewed and implemented
in other jurisdictions. The Commission recommends that a uniform basic
limitation period of 2 years commencing from the date of discoverability should
be introduced. This would have the effect that the plaintiff would have 2 years
from the date he or she discovered the cause of action to initiate proceedings.
The Commission then discusses in detail the key elements of the proposed discoverability
test, namely, what constitutes discovery and knowledge.
28.
In Chapter 3, the Commission discusses the second element of a core
limitations law, the ultimate limitation period or “long-stop”. Currently, the
“long-stop” is rarely used in Irish limitations law, an unusual instance being
a 10 year ultimate limitation period applying only to product liability claims under the Liability for Defective
Products Act 1991.[23]
An ultimate limitation period consists 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 discoverable. The Commission examines the history and
function of the ultimate limitation period, in particular taking account of its
more extensive use in other States. The Commission also considers previous
recommendations it has made in relation to ultimate limitation periods.
29.
The Commission then
examines the key features of a “long-stop,” its duration and start date, and
concludes by recommending a long-stop of 15 years duration, and a start date of
the date of the act or omission giving rise to the cause of action. The
Commission considers the application of an ultimate limitation period to
personal injuries actions, and recommends that these actions should also fall
within the scope of an ultimate limitation period.
30.
In Chapter 4, the Commission considers how highly exceptional instances
are to be dealt with in the proposed core limitations regime. This deals with
those instances where, for a
specific reason, the plaintiff is not in a position to discover their cause of
action until after 15 years have passed, for example, because the consequences
of exposure to asbestos fibres can be symptomless for up to 40 years. The
Commission therefore discusses to what extent the ultimate limitation period
may be extended or otherwise overcome.
31.
Virtually all limitations laws (including the traditional type of which
the Statute of Limitations 1957 is an example) include the need to
provide for these unusual and exceptional circumstances. In the Statute of
Limitations 1957 this is done through a series of provisions dealing with
“postponement” of the limitation periods for a variety of specified reasons:
the plaintiff’s “disability” (being under 18 or by virtue of intellectual
disability), fraud, mistake, part-payment and acknowledgement. In addition to
these specific examples in the 1957 Statute, the Commission notes the
long-standing jurisdiction of the courts to dismiss or strike out claims on the
grounds of prejudicial delay or for abuse of the court process. The discussion
in Chapter 4 makes clear that this jurisdiction is clearly based on the same
general principles that underlie limitations legislation, in particular that
litigating “stale” claims is inimical to the proper administration of justice.
32.
The Commission concludes in Chapter 4 that, to deal with unusual and
exceptional cases, it is necessary to include in the proposed core limitations
regime a narrow statutory discretion to extend or disapply the ultimate
limitation period, subject to clearly-defined statutory criteria. The
Commission also assesses the scope of the current postponement provisions and
ultimately concludes that there would be no continuing need to retain them.
This is because the proposed statutory criteria to guide the narrow discretion
are sufficient to deal with the current specified instances; and they have the
added advantage that they do not create a statutory straitjacket. The
Commission also concludes that, in order to avoid any doubt on the matter, it
should be expressly stated that this narrow discretion is in addition to the
established discretion of the courts to dismiss or strike out claims on the
grounds of prejudicial delay, or for abuse of process.
33.
The Commission
considers it is worth noting briefly the effect of the core limitation regime
recommended in the Report. The application of the 15 year long-stop proposed in
Chapter 3 means that the basic limitation period of 2 years proposed in Chapter
2 can begin to run at any point within the 15 year period. For example, a
plaintiff could become aware of (“discover”) the claim at any stage during this
15 year period and, therefore, start the 2 year period running. Time would then
“run out” for the plaintiff and result in their claim being “statute-barred” in
one of two ways: firstly, the plaintiff could discover their cause of action
but fail to commence proceedings within 2 years of this discovery, or secondly,
the plaintiff might only discover their cause of action after 15 years have
passed. In this respect, the potential defendant is offered greater certainty
in that, after 15 years and the end of the ultimate limitation period, the
defendant receives the clear benefit that the claim is statute-barred. The
advantage for the plaintiff is that the basic limitation period runs from the
plaintiff’s discovery of the action, which places greater emphasis on the state
of knowledge of the plaintiff. For exceptional cases, of course, such as the
latent personal injuries claims due to asbestos exposure, the 15 year long-stop
can be extended under the limited judicial discretion proposed in Chapter 4
(subject to the other general discretion of the courts to stop a claim if it
would be unduly prejudicial to the defendant to allow it to proceed).
34.
Chapter 5 contains a summary of the Commission’s recommendations.
35.
The Appendix to the Report contains a draft Limitations Bill intended
to implement the Commission’s recommendations.
1
1.01
This Chapter provides
an overview of the general scope of this Report. In Part B, the Commission
briefly outlines the origins and key elements of the Statute of Limitations
1957. The Commission also outlines some difficulties with the current state
of the law concerning limitation periods. In particular, the Commission
discusses how the complexity of the different limitation periods in the 1957
Statute have given rise to “satellite” litigation in Ireland, as it has under
the equivalent legislation in England and Wales. In Part C, the Commission
outlines the scope and parameters of its proposed new Limitations Act,
as indicated by the draft Limitations Bill in the Appendix; in
particular what types of civil claims would be included in it. Part D sets out
the guiding principles which influence and shape the Commission’s proposed Limitations
Act. In Part E, the Commission briefly summarises the comparable law
currently in place in a number of other countries, which are discussed in
detail in the Report. The Commission also outlines briefly the selected model
for reform, a “core limitations regime”. Part F discusses an important
procedural issue, namely, that the relevant time limit in a law on limitations,
such as the Statute of Limitations 1957, must be specifically raised
(pleaded) by a party in civil proceedings in order prevent the claim from
proceeding.
1.02
In this Part B, the
Commission briefly outlines the origins and key elements of the Statute of
Limitations 1957. The Commission also outlines some difficulties with the
current state of the law concerning limitation periods. In particular, the
Commission discusses how the complexity of the different limitation periods in
the 1957 Statute have given rise to “satellite” litigation in Ireland, as it
has under the equivalent legislation in England and Wales.
1.03
The Consultation Paper
examined in detail the development of the law of limitation in Ireland, from
its origins in 17th and 18th century legislation to the
current legislation, the Statute of Limitations 1957, as amended.[24]
The evolution of legislation in this area has been relatively limited. The Common
Law Procedure Amendment Act (Ireland) 1853 had its origins in 17th and 18th
century legislation, and the 1853 Act remained in operation until the Statute
of Limitations 1957 was enacted.
1.04
The Commission came to
the conclusion in the Consultation Paper that fundamental reform of the law of
limitations was necessary. A short synopsis of the analysis leading to this
conclusion is provided below. This outlines in broad terms some of the main
problems encountered in limitations law and also the reasoning which
underpinned the Commission’s conclusion.
1.05
Until now, the law of
limitations has not been subject to any general review. The Statute of
Limitations 1957 has been amended by the Statute of Limitations
(Amendment) Act 1991 (which introduced a discoverability test for certain
personal injuries claims) and the Statute of Limitations (Amendment) Act
2000 (which introduced a special rule to deal with child sexual abuse
claims), but these amendments have involved limited change. Other changes, such
as those in the Civil Liability Act 1961, the Sale of Goods and
Supply of Services Act 1980
and the Defamation Act 2009, have also been limited in scope.
1.06
The Statute of
Limitations 1957, as amended, contains 7 different limitation periods (1,
2, 3, 6, 12, 30, and 60 years), each applying to different types of civil
actions. For example, the limitation period for personal injuries actions is
(since 2005) 2 years, for contract claims it is 6 years and for the tort of
defamation it is (since 2010) 1 year (subject to a maximum of 2 years at the
discretion of the court; this novel discretionary approach was introduced by
the Defamation Act 2009). An example of a very long limitation period is
the 30 year period that applies to actions to recover land where the plaintiff
is a government Department.[25]
1.07
The Consultation Paper
discussed in detail the key basic limitation periods in the Statute of
Limitations 1957, with particular emphasis on what are described as the
common law actions – contract-related claims, debt-related claims and tort
(non-contractual) claims, notably personal injuries and defamation claims. In
the Consultation Paper and this Report, the Commission has concentrated on the
common law actions because they are the high-volume claims that comprise the
majority of civil proceedings initiated each year in the courts. By
concentrating on reform of the limitations periods for these claims, the
Commission intends to maximise the benefits of any reform proposals for those
involved in civil litigation.
1.08
The Statute of
Limitations 1957 is almost entirely based on the principle of fixed periods
of limitation running from the date of accrual of a cause of action, with the
exception of personal injuries actions where discoverability principles apply
to the 2 year limitation period that has been in place since 2005.[26] In addition, under the Liability for
Defective Products Act 1991, discoverability principles are applied, along
with a “long-stop” limitation period of 10 years, reflecting its origins in the
1985 EU Directive on Product Liability, 85/374/EEC.[27]
1.09
The concept of “date of
accrual” is not defined in the Statute of Limitations 1957, but it means
the date on which the cause of action is complete, that is, when it becomes possible
to begin civil proceedings. In a contract case, this means the date on which
the term of a contract was broken, in a personal injuries claim it means the
date when an event causing injury occurs, and in a defamation claim it mans
when an untrue and damaging publication occurs. Using the “date of accrual”
concept, no action or claim accrues until each element of the cause of action
is present and can be proven by the plaintiff.
1.10
Thus, different
limitation periods of varying lengths, and starting from various starting
points, apply to a wide range of actions. Deciding upon which limitation period
applies, and when it commences, is by no means a straightforward exercise of
consulting the relevant legislation. Different rules have evolved for different
causes of actions. Some of these supplemental rules are contained in the Statute
of Limitations 1957, as amended, and as interpreted by the courts.
1.11
The rationale for
applying different limitation periods depending on the type of action is no
longer clear. Nor is it apparent that it is advantageous to continue to follow
this approach. This multitude of varying limitation periods can lead to
categorisation difficulties, which in turn gives rise to complex “satellite”
litigation on issues of whether a claim is statute-barred or not. The decision
of the Supreme Court in Devlin v Roche and Others[28]
illustrates this problem. The case also exemplifies some of the extremely
technical analysis which can be necessary in a case involving the
interpretation and application of limitation periods in the 1957
Statute.
1.12
Devlin v Roche involved a personal injuries action by the plaintiff
against a number of State defendants and two members of the Garda Síochána. The
plaintiff’s claim was for damages
(including aggravated damages) for assault and battery, negligence, breach of
duty and breach of statutory duty on the part of the defendants. The
fifth-named defendant, a member of the Garda Síochána, argued in his defence
that the plaintiff’s claim was statute barred under the Statute of
Limitations 1957, as amended by the Statute of Limitations (Amendment)
Act 1991. The High Court found that the plaintiff’s claim for damages for
assault was not statute barred, and the fifth-named defendant appealed to the
Supreme Court.
1.13
Two different limitation periods and two different sections of the 1957
Statute were relevant to this case:
(a)
The first limitation period was in section 3(1) of the Statute of
Limitations (Amendment) Act 1991 (replacing section 11(2)(b) of the Statute
of Limitations 1957), which provided that a 3 year limitation period
applied to actions “claiming damages in respect of personal injuries to a
person caused by negligence, nuisance or breach of duty”. This 3 year
limitation period ran from the later date of either the date of accrual or the
date of knowledge.
(b)
The second limitation period was in section 11(2)(a) of the Statute
of Limitations 1957, as amended by section 3(2)(a) of the Statute of
Limitations (Amendment) Act 1991, which provided that, subject to section
3(1) of the 1991 Act, above, a 6 year limitation period applied to an action
based on tort. This 6 year limitation period ran from the date of accrual.
1.14
The Supreme Court held
that the phrase “breach of duty” in section 3(1) of the 1991 Act does not
encompass intentional trespass to the person. For the purpose of interpreting
the Statute of Limitations 1957, as amended, and applying a particular
limitation period, a distinction was made between actions seeking damages for
personal injuries sustained as a result of intentional trespass to the person,
and personal injuries suffered as a result of negligence, nuisance or breach of
duty. A limitation period of 6 years runs from the date of accrual in actions
for intentional trespass to the person but, at the time of the Devlin case,
a 3 year limitation period applied to an action for damages arising from
negligence, nuisance or breach of duty. Given that the ingredients of the
respective torts are virtually identical, this disparity in limitation periods
is difficult to justify and clearly gave rise to confusion at least for the
litigants in the Devlin case. Nonetheless, this differentiated approach
to the limitation periods led to the result that the Supreme Court dismissed
the fifth-named defendant’s appeal, and thus the plaintiff could proceed with
his claim for damages.
1.15
Similar difficulties
arise in England and Wales in relation to how to categorise certain civil
claims, notably those involving child abuse. Such actions are typically based
on claims of trespass and negligence, and there are issues concerning which
limitation period is applicable. Under section 2 of the English Limitation
Act 1980 there is a 6 year
limitation period for claims based on the tort of trespass to the person, and a
3 year limitation period for personal injuries actions,[29]
which includes negligence leading to personal injury. In the past, this has led
to the situation that different limitation periods apply to an action arising
out of the same facts. Take, for example a case where a claimant[30]
sued both parents for abuse, in which one parent is sued for assaulting the
claimant and the other parent is sued for negligently failing to prevent such
an assault. The action against a perpetrator of child abuse involves a strict 6
year limitation period as this is the limitation period applicable to the tort
of assault (running from the time when the claimant reaches the age of
majority), whereas an action for negligence against a non-perpetrator of abuse
involves a 3 year limitation period running from the date of knowledge of the
claimant.
1.16
This issue has arisen
in a number of cases in England and Wales.[31]
The English Law Commission, in its 2001 Report Limitation
of Actions, recommended that a core limitation regime be introduced to
eliminate this problem, stating that it “is not always clear which category a
cause of action falls into, and thus how it should be treated for limitation
purposes.”[32]
1.17
In 2003, the English
Court of Appeal, in KR and Ors v Bryn Alyn Community (Holdings) Ltd,[33] strongly endorsed the Law Commission’s
recommendations. Indeed, Auld LJ noted that, in a previous Court of Appeal
decision Seymour v Williams,[34] two members of the Court had referred to
the anomaly of there being different periods of limitation as between a
perpetrator of abuse and someone negligent in not preventing it, and had
“invited the Law Commission to consider the anomaly.” Auld LJ added that the
Law Commission had: [35]
“done so, recommending that claims for
personal injuries, including those of child abuse, whether in trespass to the
person or in negligence, should be subject to the same core regime of an
extendable three years limitation period with discretion to disapply; see Law
Com 270, paras. 1.5, 3.156, 3.162, 3.169 and Appendix A, Draft Limitation Bill,
cls. 1, 2, 12 and 38. For what it is worth, we warmly commend such a proposal.
Early statutory implementation of it would obviate much arid and highly
wasteful litigation turning on a distinction of no apparent principle or other
merit.”
1.18
Notwithstanding this
strong judicial endorsement that the Law Commission’s recommendations would
prevent wasteful litigation, it appears at the time of writing (November 2011)
that they are unlikely to be implemented in the near future, if at all. As
discussed in Part E below, in November 2009 the then Parliamentary
Under-Secretary of State for Justice announced that the UK Government’s
proposed draft Civil Law Reform Bill would not include provisions to reform
the law of limitation of actions. Indeed, since then, in January 2011 the UK
Government decided not to proceed even with the remaining elements of its
predecessor’s draft Civil Law Reform Bill. In Part E, below, the
Commission discusses in more detail the current approach to limitations in
England and Wales (in the context of a general comparative overview).
1.19
The Commission’s
analysis in the Consultation Paper[36] illustrated
in detail: the array of the different limitation periods applicable, the many
rules governing their application and commencement, and the problems that these
layers of complexity inevitably create. The difficulties with the current
system of limitation were summarised in the Consultation Paper:
“There is no
‘golden thread’ running through the limitations system, determining the length,
running, postponement and expiry of the limitation periods. Moreover, some of
the rules, such as those determining the date of accrual, remain governed by
common law and are difficult to ascertain and understand, even for experienced
practitioners.”[37]
1.20
The current limitation
provisions in the Statute of Limitations 1957, as amended, lack coherence
and clarity. They are unnecessarily complex and therefore have proven to be
inaccessible even to experienced legal practitioners, let alone others affected
by the relevant law. Fundamental reform and simplification of the law on
limitation of actions is, therefore, necessary. The Commission accordingly
reiterates the view in the Consultation Paper, and so recommends, that since
the principal legislation governing limitation of actions, the Statute of
Limitations 1957 (as amended), is unnecessarily complex, it is in need of
fundamental reform and simplification.
1.21
The Commission
recommends that since the principal legislation governing limitation of
actions, the Statute of Limitations 1957 (as amended), is unnecessarily
complex, it is in need of fundamental reform and simplification.
1.22
The Statute of
Limitations 1957 applies to a wide range of civil actions which can be
divided into four general headings.
1. The most
commonly-litigated claims, often referred to as the “common law” actions, in
particular claims concerning: (a) contracts (including debt-related claims),
(b) quasi-contract (sometimes referred to as claims for restitution); (c) torts
(that is, non-contractual obligations, including actions claiming damages for
negligence, nuisance or breach of duty, such as personal injury actions); and
(d) wrongful detention or conversion of an item.[38]
2. Actions
for the recovery of land, which take up 30 of the 80 sections in the Statute.[39]
3. Actions
in respect of trust property.[40]
4. Actions
to recover the personal estate of a deceased person, such as the legal right
share under the Succession Act 1965.[41]
1.23
The Statute of Limitations 1957 does not set out limitation
periods for all types of civil actions. Indeed, it specifies 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 an interest in a ship under the Mercantile
Marine Act 1955;[42]
· Actions for which a period of
limitation is fixed by any other limitation enactment;[43],;
· 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;[44]
· Actions within the Admiralty
jurisdiction of the High Court that are enforceable in rem.[45]
1.24
In addition, with the enactment of an increasing amount of legislation
that either involves the statutory consolidation and reform of the relevant
rules of civil liability or the creation of completely new areas of liability,
it has become necessary to set out revised or completely new limitation periods
for these proceedings. This has taken four different forms:
· specific amendments to
the Statute of Limitations 1957;[46]
· repealing and
replacing the relevant limitation period in the 1957 Statute with a provision
in the new legislation without reference to the Statute of Limitations;[47]
· providing that the 1957 Statute applies to
certain types of proceedings;[48]
or
· providing that the 1957 Statute does not apply
to certain types of proceedings.[49]
1.25
The result is that limitation periods are now to be found in a large
number of Acts,[50] as well as
in the Statute of Limitations.
1.26
Consistently with the
approach taken in the Consultation Paper, the Commission remains of the view
that priority should be given, in terms of proposals for reform, to the most
common types of actions that lead to civil proceedings in the courts. As a
result, the focus of this Report is on claims concerning contracts
(including debt-related claims) and torts (including personal injury actions),
often referred to as “common law” actions. This group of civil claims make up a large portion of the civil business
of the courts in Ireland each year. This is clear from the following breakdown
of many of the civil law actions initiated in 2009 and 2010 in the High Court,
derived from the Courts Service Annual Report 2010:[51]
Actions commenced in the High Court |
2010 |
2009 |
+/- |
Personal Injuries Summonses |
7,068 |
7,099 |
(-0.43% approx) |
Medical negligence claims |
671 |
529 |
(+ 21% approx) |
Companies Acts[52] |
349 |
409 |
Exact figures below[53] |
New cases in the Commercial List[54] |
293 |
373 |
-21% |
Breach of Contract (includes negligence) |
1,811 |
1,594 |
(+ 12% approx) |
Claims for the recovery of debt |
6,103 |
5,653 |
+8% |
Registration of judgments |
5,473 |
5,661 |
- 3% |
Judgment mortgage certificates[55] |
2,533 |
1,108 |
+128% |
Judgment on foot of Master’s Order |
588 |
347 |
+ 69% |
Judicial review proceedings |
1,581 |
1,317 |
+ 20% |
Regulation of Professions: Medical Council matters Nurses Acts Solicitors Acts |
21 18 99 |
16 21 105 |
|
Family Law Actions (including judicial separation, divorce and nullity) |
53 |
68 |
(- 22% approx) |
1.27
The civil business of
the Circuit Court in 2010 can be briefly summarised as follows:[56]
Actions commenced in the Circuit Court |
2010 |
2009 |
+/- |
Personal Injuries Summonses |
7,567 |
6,999 |
+ 8% |
Breach of Contract (includes recovery of debt) |
27,629 |
28,394 |
- 3% |
Family Law Actions (including judicial separation, divorce and nullity) |
4,789 |
5,330 |
(- 10% approx) |
1.28
A more general overview
of the civil law business of the Courts is outlined in the table below.
Type of Civil Law Proceedings [2010] |
High Court |
Circuit Court |
District Court |
A. Cases of Enforcement of Contract Debt |
6,103 |
17,009[57] |
29,771 |
Total Contract Debt Cases in the Civil Courts: 52,883 |
|
|
|
B. Personal Injuries Claims |
7,068 |
7,567 |
n/a |
Total PI Claims in the Civil Courts: 14,635 |
|
|
|
C. Small Claims Procedure |
n/a |
n/a |
3,947 |
Total SCP: 3,947 |
|
|
|
Sub-total Common Law Actions Per Court (as per categories A, B, C) |
(HC) 13,171 |
(CC) 24,576 |
(DC) 33,718 |
Total Common Law Actions in the Civil Courts: 71,465 |
|
|
|
1.29
From this analysis it
can be seen that almost half of all civil claims initiated in the District,
Circuit and High Courts in 2010 were related to what the 1957 Statute describes
as common law actions; actions consisting of claims of enforcement of contract
debt, personal injuries claims and small claims procedure. These categories
made up just over 71,000 of the total figure of over almost 157,000 of all
civil claims initiated,[58] or about
45.5% of the total of all civil claims passing through the courts system.
1.30
The Commission has
concluded that these high-volume civil law actions should be the focus of the
recommendations for reform in this Report, because this will ensure that the
greatest benefit in practical terms is likely to arise from reform. The
Commission thus concludes, and so recommends, that the scope of the proposed
reforms to limitations legislation in this Report should deal with the most
commonly-litigated civil claims, often referred to as the “common law” actions,
namely, claims concerning: (a) contracts (including debt-related claims), (b)
quasi-contract (sometimes referred to as claims for restitution); (c) torts[59]
(that is, non-contractual obligations, but not defamation claims, for which the
Oireachtas has enacted a specific limitation rule in the Defamation Act 2009);
(d) personal injuries actions claiming damages for negligence, nuisance or
breach of duty; and (e) wrongful detention or conversion of an item or chattel.[60]
1.31
The Commission
recommends that the scope of the proposed reforms to limitations legislation in
this Report should deal with the most commonly litigated civil claims, often
referred to as the “common law” actions, namely, claims concerning: (a) contracts (including
debt-related claims), (b) quasi-contract (sometimes referred to as claims for
restitution); (c) torts (that is, non-contractual obligations, but not
defamation claims, for which the Oireachtas has enacted a specific limitation
rule in the Defamation Act 2009); (d) personal injuries actions claiming
damages for negligence, nuisance or breach of duty; and (e) wrongful detention
or conversion of an item or chattel.
1.32
The Commission accepts
that this means that its proposals, if enacted, would not lead to a complete
repeal of the Statute of Limitations 1957, and will therefore leave
certain actions to continue to be dealt with under the 1957 Statute.
Thus, limitation periods
concerning land and trusts will continue to be dealt with under the 1957
Statute, although the Commission notes that these have also been the subject of
separate consideration by the Commission.[61]
In any event, it would not be feasible to attempt to compile a single,
consolidated, Limitations Act containing all limitation periods
for all civil actions. Indeed, no Statute of Limitations has
attempted to do this. Thus, the Statute of Limitations 1957 itself
excluded from its scope a number of civil claims, such as admiralty actions. In addition, as already
noted, since the 1957 Statute was enacted, limitation periods for other specific
forms of civil claims are contained in the Acts related to those subjects,
sometimes without reference to the 1957 Statute. Similarly, limitation periods for public law
proceedings such as judicial review, planning, asylum or immigration
proceedings are not dealt with in the Statute of Limitations 1957 but
in the legislation related to those specific areas.
1.33
In this respect, the Commission notes that for the convenience of users
of legislation it may in fact be preferable, as the Oireachtas has done, to
locate some specific limitation periods in the legislation to which such claims
relate (such as planning-related claims or defamation claims). Nonetheless,
there remains a case for enacting a Limitations Act having a very wide
scope, as in the case of the scope of the civil claims to which the reform
proposals in the draft Limitations Bill in the Appendix applies.
1.34
In the Consultation
Paper, the Commission analysed in considerable detail the general principles,
derived from both the Constitution and the European Convention on Human Rights,
which assist its approach to reform of limitations law.[62]
A summary of this analysis is set out in this Part.
1.35
Where a party to
proceedings raises the procedural defence that the relevant limitation period
has passed, this has the effect that even the clearest, strongest, claim is
statute-barred; put simply, if the limitation period is raised and has expired,
a court is banned from hearing the case.
1.36
The Commission notes
that there are three clear interests involved in assessing the law on
limitations from the point of view of underlying principles:
(a)
The plaintiff’s interests
and rights;
(b)
The defendant’s
interests and rights; and,
(c)
The public interest.
1.37
Essentially, a
limitation period should support a plaintiff’s right of access to the
courts, while encouraging the plaintiff to make claims without undue delay.
This also protects defendants from the unjust pursuit of old, stale, claims. It
must be the aim of limitations legislation to strike a fair balance between
these interests.
1.38
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,[63]
Walsh J noted:
“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.”
1.39
It follows that
limitation periods must provide litigants with adequate opportunity to avail of
their respective rights as protected under the Constitution. This balancing of
competing constitutional rights under limitations legislation, and the role of
both the Oireachtas and the judiciary in achieving this balance, was summarised
by Finlay CJ in Tuohy v Courtney:[64]
“[T]he Oireachtas in legislating for time limits on the bringing
of actions is essentially engaged in a balancing of constitutional rights and
duties. What has to be balanced is the constitutional right of the plaintiff to
litigate against two other contesting rights or duties, firstly, the
constitutional right of the defendant in his property to be protected against
unjust or burdensome claims and, secondly, the interest of the public
constituting an interest or requirement of the common good which is involved in
the avoidance of stale or delayed claims.
The Court is satisfied that in a challenge to the constitutional
validity of any statute in the enactment of which the Oireachtas has been
engaged in such a balancing function, the role of the courts is not to impose
their view of the correct or desirable balance in substitution for the view of
the legislature as displayed in their legislation, but rather to determine from
an objective stance whether the balance contained in the impugned legislation
is so contrary to reason and fairness as to constitute an unjust attack on some
individual's constitutional rights.”
1.40
The right of access to
the courts is an unenumerated personal right guaranteed by Article 40.3.1° of
the Constitution.[65]
As
such, it is one of the fundamental rights of Irish citizens,[66] which the State is obliged
to respect, vindicate and defend.[67]
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.[68] Furthermore, the right to litigate is
the means through which the personal rights protected by the Constitution may
be asserted and enforced.[69]
1.41
This right of access to the courts has also been described as a right to
bring proceedings,[70]
“the right to litigate claims”,[71]
or “to have recourse to the courts for the purpose of having determined any
justiciable controversies between a citizen and the State”.[72] The right to litigate applies to “every
individual, be he a citizen or not”.[73]
In 1996, the Report of the Constitution Review Group stated that the objective of the right of access
is “to ensure that these minimum standards of legality and fair procedures are
not otherwise jeopardised.”[74]
1.42
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).[75]
1.43
This right is linked to
the unenumerated right to fair procedures is derived from Article 40.3.1°. It
can also be said to be a facet of the “judicial duty to ensure the timely administration
of justice which is derived from Article 34.1”.[76]
1.44
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[77]
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.”[78]
1.45
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”.[79] 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.[80]
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.[81]
These factors may prejudice the ability of a defendant to contest the
plaintiff’s claim.[82]
It may then be unfair to expect the potential defendant to meet the claim.[83]
1.46
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
24 years earlier.[84]
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”.[85]
1.47
In J O’C v Director of Public Prosecutions[86] the effect of delay on the fairness of civil trials was
described as follows by Hardiman J in the Supreme Court:
(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.[87]
1.48
The Supreme Court has
recognised that there is a public interest in the avoidance of delayed claims
(sometimes referred to as stale claims).[88]
Limitation periods promote the expeditious trial of civil actions, and as a
result, they also promote the achievement of justice in judicial
decision-making. Indeed, the Supreme Court also observed that limitation
periods are “designed to promote as far as possible expeditious trials of
action so that a court may have before it as the material upon which it must
make its decision, oral evidence which has the accuracy of recent recollection
and documentary proof which is complete, features which must make a major
contribution to the correctness and justice of the decision arrived at.”[89]
1.49
Economics are a further relevant consideration when assessing the
various aspects of limitations law, and its impact upon the public interest,
particularly from the point of view of insurance. The Commission has previously
noted that 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.[90]
In addition, as noted in the Introduction to this Report,[91] a core limitations regime is likely to
have at least a neutral, and potentially a positive, effect in terms of
relevant insurance costs.
1.50
The Commission notes that any reform of the limitations legislation
would not alter or affect the requirement on organisations who provide goods
and services (both public sector and private sector), and who may be subject to
both regulatory requirements and the risk of civil claims, to ensure ongoing
good record-keeping concerning their activities. These records are often
maintained for quite lengthy periods, some related to time limits concerning
tax-related matters, some related to potential employment and human resources
issues, some to deal with potential consumer or regulatory matters (for
example, occupational safety, environmental or data protection requirements)
and some related to defending possible civil claims. It is clear that,
regardless of changes to limitations legislation, such records should continue
to be maintained for considerable periods of time.[92]
1.51
As to the relationship between insurance and extremely long time lapses
between an incident and litigation, in Ó Domhnaill v Merrick, Henchy J
noted in the Supreme Court 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 road traffic incident in that case would be “unfair for being
incompatible with the contingencies which insurers of motor vehicles could
reasonably be expected to provide against.”[93]
1.52
In a 2002 Report, the British Columbia Law Institute was of the view
that the duration of a limitation period could also adversely impact upon
insurance costs for potential defendants, and thus affect the public interest
society generally. It stated:[94]
“The 30 year
ULP [Ultimate Limitation Period] imposes significant expenses on defendants
with regard to maintaining records, evidence and insurance until the period has
been exhausted. Higher costs in the provision of goods and services form part
of the overhead that are typically passed on to clients through increased
prices... In some cases access to protective insurance is elusive as a
professional person may be susceptible to liability long after retirement, but
may not be able to obtain insurance coverage or may only be able to do so at
great expense.”
1.53
In 2000, the New Zealand Law Commission observed that the public
interest will be adequately provided for once a fair balance is struck between
the interest of the plaintiff and the defendant. It stated that:
“the task of devising a fair limitations law is best approached
as one of holding the balance between what is fair to intending plaintiffs, and
what is fair to intended defendants. If that balance can be properly struck,
then the public interest will usually be found to have been taken care of.”[95]
1.54
Under Article 40.3.2° of the Constitution, the State is obliged to
protect, by its laws, the rights of every citizen from unjust attack, 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.”[96] Thus, the exercise of personal rights is
not unlimited[97] and their curtailment is not automatically
unconstitutional;[98]
as the exercise of constitutional rights may be restricted by the
constitutional rights of others, and by the requirement of the common good.[99]
1.55
The Constitution also specifically provides for limits on 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
to impose limitation periods on civil actions concerning property rights. Such
limitation periods must, however, be assessed in light of the protection given
by the Constitution.
1.56
The weighing of the relevant considerations has been held by the Supreme
Court to be “quintessentially a matter for the judgement of the legislator”[100]
and as such, is “a matter of policy and discretion”.[101] Nevertheless, the
curtailment of constitutional personal rights is subject to constitutional
scrutiny, and 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.”[102]
1.57
A useful summary was provided by Finlay P in the High Court in Cahill
v Sutton[103],
where he suggested that he should firstly examine the Statute of Limitations
1957 against the background of the circumstances of the ordinary life in
the country at the time the 1957 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.[104]
1.58
A key consideration in the assessment will be reasonableness.[105]
The courts will consider whether the balance of interests achieved is “unduly
restrictive or unreasonable”[106]
or “unreasonably or unjustly impose hardship”.[107]
1.59
In Tuohy v
Courtney[108] the Supreme Court stated that such a
limitation must be “supported by just and reasonable policy decisions.” The
Court held that 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.[109]
The Court concluded that the absolute character of the 6 year limitation period
laid down by s. 11(2)(a) of the Statute of Limitations 1957 did not
render it unconstitutional. It observed that the “period of six years is,
objectively viewed, a substantial period” and that existing provisions for
extension in cases of disability, part-payment, fraud and mistake “constitute a
significant inroad on the certainty and finality provided by the Act.”
1.60
In addition, 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. [110]
1.61
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.[111] Limitation periods, which
necessarily constrict the constitutional personal right to litigate, will
therefore be strictly construed.
1.62
The European Convention on Human Rights Act 2003
incorporated into Irish law the rights contained in the Council of Europe 1950
Convention on Human Rights and Fundamental Freedoms. Section 2(1) of the 2003
Act provides that the 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.
1.63
Since the 2003 Act came into force, Article 6 of the Convention, which
provides for a fair and public hearing within a reasonable time, is now – in
addition to the provisions of the Constitution already discussed – also
relevant to assessing the appropriateness of limitation provisions.[112]
1.64
Article 6(1) of the Convention states:
“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.”
1.65
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.[113]
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.”[114]
1.66
It is well-established that Article 6 of the Convention is “intended to
guarantee not rights that are theoretical or illusory but rights that are
practical and effective”.[115] 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.[116]
1.67
Nonetheless, as with the right of access to the courts under Article
40.3 of the Constitution, the right of access under Article 6 is not absolute, and it
does not prohibit the imposition of limitation periods.[117]
The European Court of Human Rights has acknowledged that limitation periods are
a common feature of the national legal systems of Council of Europe member
states. Indeed, the Court has acknowledged 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.”[118]
1.68
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. [119]
1.69
The European Court of Human Rights has noted a lack of uniformity among
the member states of the Council of Europe as to the length of civil limitation
periods and the date from which those periods run.[120]
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, commonly accepted in Council of
Europe member states.[121]
1.70
The Court has applied a margin of appreciation to the manner in which
member States organise their limitation periods. In Stubbings v United
Kingdom,[122]
the Court dismissed a claim that a limitation of 3 years in the English Limitation
Act 1980 was in breach of Article 6 of the Convention. In doing so, the
Court noted that the UK Parliament had devoted a substantial amount of time and
study to the consideration of the limitation periods in the 1980 Act.[123]
1.71
The Court added that, by its very nature, litigation calls for
regulation by the state.[124]
Limitations on the right of access must be for a legitimate aim and must not
transgress the principle of proportionality.[125] There must, therefore, be “a reasonable relationship
of proportionality between the means employed and the aim sought to be
achieved.”[126] 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.[127]
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.[128]
1.72
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”.[129] 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”.[130] 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.[131] 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.[132]
1.73
It is not sufficient, 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”.[133]
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”.[134]
1.74
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.[135] The Court
has stated that each case must be looked at from a procedural, factual and
legal point of view.[136] Of
particular relevance is the complexity of the case, the importance of what is
at stake for the applicant in the litigation, and the conduct of the applicant
and of the relevant authorities.[137]
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.[138]
1.75
In Doran v Ireland[139], the Court
held that Ireland had breached Article 6 for its failure to comply with the
‘reasonable time’ requirement. The applicants had initiated a claim in
negligence in the Irish courts in July 1991. The final assessment of costs in
the case, the taxation certificate, was signed by the Taxing Master of the High
Court in December 1999, thereby ending the proceedings. The proceedings had,
therefore, lasted nearly 8½ years. When the Supreme Court gave judgment on the
applicants’ appeal in March 1998, the proceedings had already been in being for
over 6½ 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.[140]
1.76
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.[141]
1.77
In McMullen v
Ireland[142],
the applicant’s case concerning negligence proceedings against his solicitor
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.[143]
Nevertheless, the Court ruled that the applicant’s conduct did not, alone,
explain their overall length of the proceedings.[144]
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.[145]
1.78
In O’Reilly and Anor v Ireland, the State was again
found to be in violation of Article 6(1) of the Convention.[146]
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 4 years and 11 months, ending in June 1999 with the
final orders of the Supreme Court.[147]
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 national authorities, namely 16 months spent waiting for
the High Court to deliver its judgment, and a material delay of 3 months in the
appeal hearing.[148]
1.79
In Barry v Ireland[149],
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. He issued judicial review proceedings
seeking to have his prosecution abandoned, and sought discovery. The
prosecution did not proceed until 8 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.
1.80
In McFarlane v Ireland[150],
the Court found against the State under Article 6(1) (right to a fair trial
within a reasonable time) and Article 13 (right to an effective remedy). The
case involved delays in criminal proceedings brought against the applicant for
offences allegedly committed in 1983, of which he was acquitted in 2008.
1.81
In January 1998, the applicant was charged by the Special Criminal Court
with false imprisonment and the unlawful possession of firearms, offences he
was alleged to have committed in 1983. After delivery of the Book Evidence by
the prosecution, the applicant engaged in correspondence with the prosecution
between July 1998 and March 1999 during which it emerged that a crucial piece
of evidence, an original fingerprint, had been lost. A forensic report,
including photographs of this fingerprint evidence, had been retained. The
applicant initiated judicial review proceedings in November 1999, which
continued in parallel with the criminal proceedings, and these ultimately
concluded in 2008 when the Special Criminal Court found the defendant not
guilty.
1.82
The European Court of Human Rights found Ireland in breach of Article
6(1), as it was of the view that the “overall length of the criminal
proceedings against the applicant was excessive and failed to meet the
‘reasonable time’ requirement.”[151]
The Court considered that although both parties in any litigation were required
to take responsibility for the progression of proceedings, this shared
responsibility could not dispense the State from the “requirement to organise
its system to deal with cases within a reasonable period of time. If a State
allows proceedings to continue beyond a ‘reasonable time’ without doing
anything to advance them, it will be responsible for the resultant delay.”[152]
1.83
The Court went on to emphasise the vital importance of this
responsibility on the part of the State to ensure that proceedings progress
reasonably quickly particularly given the constitutional duties and rights
involved.
“Accordingly, the Court considers that the existence of any
possibility or right on the part of the applicant to take steps to expedite did
not dispense the State from ensuring that the proceedings progressed reasonably
quickly. Indeed, the Government themselves recalled that domestic courts have
an inherent jurisdiction to ensure that justice is done and have a
constitutional duty to protect constitutional rights, including the right to
reasonable expedition.”
1.84
In light of this analysis of the relevant constitutional provisions and
the related requirements of the European Convention on Human Rights, the
Commission reaffirms the view it took in the Consultation Paper that the law
governing limitation of actions must ensure that a balance is struck between
the competing rights of the plaintiff and the defendant, and have regard to the
public interest. In particular, the law should have regard to the right of the
plaintiff of access to the courts and the right to litigate, the right of the
defendant to a speedy trail and to fair procedures, and the public interest in
the avoidance of delayed claims and the timely administration of justice.
1.85
The Commission recommends that the law governing limitation of
actions must ensure that a balance is struck between the competing rights of
the plaintiff and the defendant, as well having regard to the public interest;
in particular the right of the plaintiff of access to the courts and the right
to litigate, the right of the defendant to a speedy trail and to fair
procedures, as well as the public interest in the avoidance of delayed claims
and the timely administration of justice.
1.86
In this Part, the
Commission provides a general overview of the development of limitations laws
in a number of jurisdictions. This is intended to assist in determining the
most appropriate approach to reform and modernise limitations legislation in
Ireland. The Commission notes in this respect that a number of common law
jurisdictions have moved from a traditional model of limitations law towards a
“core limitations” regime. Such a regime, found for example in the New Zealand Limitations
Act 2010, involves three key elements: a uniform basic limitation period; a
uniform commencement date; and a uniform ultimate limitation period. As discussed in this Part, these core limitations regimes owe
much to the pioneering work in the 1980s in Canada of the Alberta Institute of
Law Research and Reform (the predecessor to the Alberta Law Reform Institute).[153]
1.87
The history of
limitations legislation in England dates back as far as 1540, when limitation
periods were first set by reference to fixed periods of time rather than fixed
dates.[154] Up to the
19th Century, the relevant English limitations legislation also
applies in Ireland. In the 20th Century, the English Limitations
Act 1939 consolidated with some limited reforms the 19th Century
legislation; and the 1939 Act was the model for the Irish Statute of
Limitations 1957.
1.88
In England, further
amendments to the 1939 Act were made in 1975 and 1980, and these were in turn
consolidated in the Limitation Act 1980. The 1980 Act remains the
principal Limitations Act in England, though it has itself been amended a
number of times to deal with: latent damage in negligence, defamation and
malicious falsehood claims and claims under the Consumer Protection Act 1987
(the 1987 Act is, broadly,
equivalent to the Liability for Defective Products Act 1991, both
involving the implementation of the 1985 EU Directive on Defective Products,
85/374/EEC).
1.89
The English Limitation
Act 1980, and its predecessors, broadly mirrors the Statute of
Limitations 1957, as amended, in that several different types of limitation
periods apply depending on the type of action involved. This is hardly
surprising, since the 1957 Statute largely involved a consolidation of the
pre-1922 legislation on limitation periods enacted in the UK Parliament, and
the 1980 Act has, in general, followed the essential pattern of the older
legislation on limitation periods. As in Ireland, the reform and development of
the English legislation on limitations has been equally piecemeal, with
sporadic amendments being made from time to time.
1.90
In 2001, the Law
Commission for England and Wales published a Report Limitation of Actions.[155]
The Law Commission concluded that the English 1980 Act, as amended, required
simplification and rationalisation because it was “uneven, uncertain and
unnecessarily complex.”[156] The Law
Commission was of the view that the 1980 Act lacks coherence owing to its ad
hoc development; it also considered that the legislation is unfair and
outdated.[157] The Law
Commission therefore concluded that the case for a wide-ranging reform to be
compelling, and recommended the introduction of “a law of limitations that is
coherent, certain, clear, just and cost-effective.”[158]
1.91
The Law Commission
recommended that a core regime of limitations be introduced. In summary, some
of the main features of this regime would be as follows:
· A primary limitation period of three
years starting from the date that the claimant had knowledge, or ought
reasonably to have had knowledge[159];
· A long-stop limitation period of ten
years starting from the date of the accrual of the cause of action;
· A judicial discretion to dis-apply
the primary limitation period in respect of personal injuries;
· No long-stop limitation period to
apply to personal injuries actions.
· In relation to adult claimants with
a disability - where the claimant is under a disability and is in the care of a
responsible adult ten years for ten years after the later date of (a) the act
or omission giving rise to the claim, or (b) the onset of disability; then the
primary limitation period runs from the date the responsible adult knew or
ought to have known the relevant facts (unless the responsible adult is a
defendant to the claim).[160]
· All personal injury claims will be
subject to the regime whether the claim concerned is framed in terms of
negligence or trespass to the person.[161]
1.92
The Law Commission
recommended that this core regime should apply to tort and contract claims
(with the exception of personal injuries), restitutionary claims, claims for
breach of trust and related claims (including claims in respect of the personal
estate of a deceased person), claims on a judgment or arbitration award and
claims on a statute.[162]
1.93
After 2001, the UK
Government engaged in a further consultation exercise with interested parties.
In 2009, it indicated that proposal for it did not intend to proceed with the
enactment of a core limitations law. In November 2009, the then Parliamentary
Under-Secretary of State for Justice (Bridget Prentice) announced by way of
ministerial statement that the proposed draft Civil Law Reform Bill would
not include provisions to reform the law of limitation of actions. The reasons
given were as follows:
These
provisions were based on a Law Commission Report of 2001. But a recent
consultation with key stakeholders has demonstrated that there are insufficient
benefits and potentially large-scale costs associated with the reform. In
addition, the courts have remedied some of the most significant difficulties
with the law that the Law Commission identified, for example, in relation to
the limitation aspects of child abuse cases. The limitation reforms will
therefore not now be taken forward.[163]
1.94
As this announcement
indicated, the draft Civil Law Reform Bill which was published in
December 2009 does not contain any provisions relating to the reform of the
limitation of actions.[164] It
therefore appears that, at the time of writing, the UK Government has decided
against making any changes to the current limitations regime in England and
Wales. It is notable that the Government gave two reasons for this: first that
the potential costs of reform would outweigh and benefits; and, second, that
decisions of the UK courts since 2001 had largely remedied some of the
deficiencies identified by the Law Commission in 2001.
1.95
In Northern Ireland, the Statute of Limitations (Northern Ireland)
1958 largely mirrored the English Limitations Act 1939 (and,
therefore, the Statute of Limitations 1957). The 1958 Statute was
amended a number of times, again reflecting comparable amendments to the
English legislation. Similarly, following the consolidation that occurred in
England with the Limitation Act 1980, the Limitation (Northern
Ireland) Order 1989 consolidated the limitation law for Northern Ireland.
This included, for example, incorporating the implementation of the 1985 EU
Product Liability Directive, 85/374/EEC, which had already been implemented in
the Consumer Protection (Northern Ireland) Order 1987. The 1989 Order
remains the principal limitations legislation in Northern Ireland.
1.96
In Scotland, the
concepts of prescription and limitation are used within the principal
legislation in this area, the Prescription and Limitation
(Scotland) Act 1973.
Though similar in terms of practical effect, prescription and limitation are
viewed as being conceptually different. Prescription is perceived as a rule of
substantive law, while limitation is viewed as a procedural rule. Therefore,
when a limitation period expires, the obligation to pay damages technically
continues to exist, whereas once the period of prescription ends, this
obligation is considered to be extinguished.
1.97
Different limitation periods apply to different types of proceedings,
for example, 3 years for personal injuries actions[165]
and defamation actions. There is also a general long negative prescription
period of 20 years applicable to most actions, although it does not, however,
apply to personal injuries actions, actions involving “any real right of
ownership in land”, actions concerning obligations of trustees, or product
liability actions.[166]
1.98
There is also a short 5 year prescription period which applies in
relation to certain types of actions, such as obligations to pay a sum of money
due in respect of a particular period.[167]
This short prescription period is of limited application, and does not extend
to a range of other civil proceedings such as defamation actions, obligations
relating to land, or, personal injuries actions.
1.99
Since 1980, the Scottish courts have had a discretionary power under
section 19A of the Prescription and Limitation Act 1973, to disregard
limitation periods in personal injury cases.[168]
The court’s discretion is not limited, and there are guidelines developed from
case law to which the court can have regard if it is equitable for the
limitation period to be extended.[169]
In its 2007 Report on Personal Injury Actions: Limitation and Prescribed
Claims, the Scottish Law Commission noted that despite each case turning on
its own facts, “judges have tended to develop similar approaches” to how they
approach the application of this discretion.[170]
Thus concerns expressed when the discretion was introduced that it would lead
to increasing uncertainty and inconsistency in how the courts apply this
discretion, have not materialised.[171]
1.100
The Scottish Law Commission noted that the main disadvantage of
retaining this discretionary power was that it created uncertainty, but
nevertheless, it noted that its main advantage is that of flexibility. It felt
that it tempered the arbitrariness inherent in a time limit, “enabling actions
to proceed where the limitation period is overshot by only a short period
without any material impairment to the defender’s ability to resist the claim.”[172]
1.101
The Scottish Law Commission recommended that this judicial discretion to
allow a time-barred action to proceed should be retained.[173]
However, it also recommended that section 19A of the Prescription and
Limitation Act 1973 be amended to include a list of non-exhaustive factors
which the court could have regard to in exercising its discretion in
determining whether to allow a time-barred action to proceed.[174]
1.102
In 2010, the Manitoba
Law Reform Commission published a Report on Limitations[175]
which set out a summary of the different limitation regimes applicable
throughout the Canadian Provinces. It noted that there are three different
types of limitation systems in place in Canada;
(1)
The core limitation or
“modern limitation regime”;
(2)
The traditional
limitation system which is somewhat similar to the Statute of Limitations
1957 as it is also based on historical English legislation; and,
(3)
Semi-reformed
legislation which is a mixture of the old and new approach to limitations.
1.103
The Manitoba Commission
provided this following summary of these different regimes:
“The
limitations statutes of Alberta, Saskatchewan, Ontario and New Brunswick are
the more recently reformed Canadian regimes, and represent similar concepts and
philosophies. The new statutes eliminate the traditional approach, under which
different limitations applied to specified cause of action, and replace it with
a streamlined structure based on a two year ‘basic’ limitation and a longer
‘ultimate’ limitation. In this report, we refer to the limitations statutes of
these provinces collectively as the modern limitations regimes. British
Columbia and Newfoundland and Labrador have semi-reformed legislation, with
various limitations applicable to claims according to a system of categories.
The remaining provinces and territories have limitation statutes founded on
early English legislation, though differing in significant particulars from one
another.”[176]
1.104
The Alberta Institute
of Law Research and Reform (the predecessor to the Alberta Law Reform
Institute) published a report in 1986 on the topic of limitations, and it is
widely viewed as a seminal work on this subject matter.[177]
In 1989, the Institute published its final Report.[178]
It recommended that the existing legislation be completely overhauled, and a
core limitations regime be introduced based on a two year basic limitation
period and a longer 15 year[179] ultimate
limitation period. This 1986 report formed the basis for the new limitations
legislation introduced in Alberta in 1996.[180]
1.105
The work of the Alberta
Institute was greatly influential with respect to later projects regarding
reforming limitations legislation in Ontario, Saskatchewan and New Brunswick,
as well as the Uniform Law Conference of Canada.
1.106
In its Report of 1989,
the Alberta Institute published a Model Limitation Act, introducing this
core limitation regime.[181] This model
had the key advantage of simplicity. Thus, instead of a number of limitation
periods running for various lengths from different dates of accrual, one basic
limitation period running from the date of discovery along with a long-stop
period, running from the date on which the cause of action arose. Provisions
for the judicial extension of the limitation period were considered
unnecessary.
1.107
The Alberta model also has the advantage of clarity. It is easily
understood by practitioners and litigants alike, and therefore reduces the
possibility of a claimant finding themselves statute-barred due to their lack
of knowledge or comprehension of limitation law. The uniformity of the Alberta
rules also essentially eliminates problems of classification in that arise
where different limitation periods are ascribed to different categories of
claim. In addition, it reduces the potential for litigation on definitional
issues.
1.108
The Alberta Institute‘s Model Limitation Act was the foundation upon
which a core limitation regime was introduced in Alberta in 1996,[182]
Ontario in 2002[183] and Saskatchewan in 2004[184], in New
Brunswick in 2010,[185] as well as the
inspiration for the Uniform Law Conference of Canada‘s Uniform Limitations Act,
adopted in 2005, and the proposed model Act proposed by the Manitoba Law
Commission in 2010.[186]
1.109
The Alberta Institute
set out two basic principles in the 1989 Report, upon which they founded their
recommendations in favour of a core limitation regime, and these principles
have since been influential in the majority of limitation reform projects. The
basic principles are as follows:
“The first basic principle is knowledge. It is derived from the
limitations strategy in equity and serves the interests of claimants. The
principle of knowledge involves building in discovery by the claimant to set
the limitations clock ticking. The limitation period does not begin to run
until the claimant knows of the claim, that is, until he has
"discovered" or "ought to have discovered (i) that the injury
had occurred, (ii) that it was to some degree attributable to the conduct of
the defendant, and (iii) that it was sufficiently serious to have warranted
commencing a proceeding. After discovery, the claimant has 2 years within which
to seek redress in a civil judicial proceeding. This 2-year period constitutes
the "discovery limitation period".
The second basic principle is repose. It incorporates the
certainty of the fixed periods used in the limitations strategy at law, and
serves the interests of defendants by providing an absolute cut off date of 15
years within which the claimant must seek a remedial order. The 15-year period
applies irrespective of whether the claimant has knowledge of the claim. The
principle of repose facilitates long term planning by persons subject to
potential claims. As well, at a certain stage evidence and adjudication becomes
defective because of the passage of time. This 15-year period constitutes the
"ultimate limitation period.
The defendant is entitled to a limitations defence when either
the discovery limitation period or the ultimate limitation period expires,
whichever occurs first. The defence must be pleaded, as the traditional
approach in the limitations strategy at law currently requires. A successful
defence gives the defendant immunity from liability under the claim. Immunity
from liability is not conferred automatically and a successful limitations
defence does not expunge legal rights.”[187]
1.110
British Columbia was
the first province in Canada to begin the process of modernising its limitation
regime. It introduced, in the Limitation Act[188]
(first introduced in 1975), a type of core or modern limitation
regime in that it contained two different types of limitation periods, basic
and ultimate limitation periods. However, it is quite a complicated form of a
core limitation regime, as the Act contains three different basic limitation
periods of two, six and ten years, and two ultimate limitation periods of six
and 30 years in duration. There have been problems with determining which basic
limitation period is applicable, and also then the relevant start date.
“Provisions have even been criticized by the courts as being ‘obscure’ and ‘a
longstanding source of frustration in British Columbia.’”[189]
1.111
There are also
difficulties with the two ultimate limitation periods as these run from the
date of the accrual of the action. The date of accrual means the date on which
the cause of action is complete, that is, when it becomes possible for a
plaintiff to commence proceedings. A cause of action is complete when each
necessary element of the cause of action is present, for example, in the case
of the tort of negligence, there are four elements which must be present, thus
allowing a plaintiff to initiate proceedings. In summary, these four elements
consist of a duty of care, a failure to conform to the required standard,
actual loss or damage to the interests of the plaintiff, and a sufficiently
close causal connection between the conduct of the defendant and the injury
suffered by the plaintiff.[190]
1.112
The British Columbia
Law Reform Commission in 1990 recommended the reduction of the 30 years
limitation period to 10 years.[191]
Its successor, the British Columbia Law Institute (“BCLI”), reiterated this
recommendation in 2001.[192] The BCLI
felt that such a prolonged ultimate limitation period, and the resulting
prolonged liability, had adverse effects on business. This was due to the
significant expenses imposed on defendants with regard to maintaining records,
evidence and insurance until the period ended.
1.113
In 2010, the Attorney
General of British Columbia published a White Paper on Limitation Act
Reform: Finding the Balance.[193]
It recommended a complete overhaul of the limitation system with the
introduction of a core limitation regime similar to that of Alberta, Ontario,
Saskatchewan and New Brunswick, and the model limitations law of the Uniform
Law Conference of Canada; this would consist of a single two-year basic
limitation period for all civil claims, and either a 10 or 15-year ultimate
limitation period running from the date of the act or omission.
1.114
The Uniform Law
Conference of Canada (the “ULCC”) is a nation-wide organisation that promotes
reform and greater uniformity of laws across Canadian jurisdictions. It makes
recommendations for changes to federal legislation based on deficiencies in the
existing law. Its work is done by delegates appointed by member governments.
The Conference adopts a “model statute” which it offers as a recommended method
of harmonisation for the use of member governments if they wish to do so.[194]
1.115
The ULCC first
considered the topic of limitations in 1931, and again in 1982. In 2005, the
ULCC introduced a new model act in relation to limitations, the Uniform
Limitations Act 2005[195],
which is based upon the ‘core limitation regime’ legislation enacted recently
in Alberta (in 1996), Ontario (in 2002) and Saskatchewan (in 2004).[196]
1.116
In Manitoba, the
existing legislation is somewhat similar to the legislation in Ireland, in that
its origins can be traced back to historical English legislation. When Manitoba
became a province in 1870, the limitations legislation brought into force was
the Statute of Limitations 1623
and this continued in operation until the Manitoba Legislature enacted The
Limitations of Actions Act 1931 with significant
amendments being made in 1967, 1980 and 2002.[197]
The Manitoba Commission was of the view that as the principal limitations
legislation, (The Limitations of Actions Act), was “highly dated” and
in need of reform” as it was “fundamentally based on an amalgam of limitations
provisions that originated in England centuries ago”. [198]
1.117
The Manitoba Commission
recommended that a core limitations regime be put in place, with a two year
basic limitation period running from the date of discoverability and a longer
15 year ultimate limitation period running from the date of the act or
omission.[199] It also
recommended that the proposed Act should not retain any judicial discretion to
extend a limitation period.[200]
1.118
The proposed reforming
legislation appended to the 2010 report of the Manitoba Commission was based
primarily on the Uniform Limitations Act 2005 of the Uniform Law
Conference of Canada. In turn, this uniform Act was based on the legislation
enacted in Alberta, Ontario and Saskatchewan. These Provinces adopted a
modernised and uniform limitations system based on a core limitations regime.[201]
1.119
Until 2010, New Zealand
limitations law was set out in the Limitation Act 1950, as amended. The 1950 Act
set out limitation periods for the common law actions, namely contract and tort
claims, as well as claims for the recovery of land and claims for breach of
trust. The 1950 Act did not apply, for example, to probate and judicial review
actions.[202]
1.120
Under the Limitation Act 1950, most actions had a 6 year
limitation period starting from the date of the accrual;[203]
this being the date when the loss occurred in tort negligence cases, and the
date on which a contract was breached in contract cases. This meant that a
limitation period often had expired before a plaintiff realised they had a
case, most commonly in latent personal injury cases or defective premises
cases. The New Zealand Court of Appeal sought to remedy this in Invercargill
City Council v Hamlin in which it held that, that where a defect in the
construction of the building on which a negligence claim is based is latent,
the cause of action does not accrue until the damage is either discovered or
reasonably discoverable.[204] The Court
extended this discoverability test to cases involving a claim for damages for
personal injuries due to sexual abuse[205], and also for personal
injuries arising from medical negligence[206].
1.121
In a 2000 Report Tidying the Limitation Act, the New Zealand Law
Commission noted that this left the law in a state of uncertainty as to whether
the discoverability test could be applied to all actions or merely to actions
for economic loss caused by defective buildings and bodily injury.[207]
1.122
In 2007, in Trustees
Executors Ltd v Murray ,[208] the New Zealand Supreme Court
stated clearly that the answer to this question was that the courts were not
prepared to apply the discoverability test more generally The Court
considered that the concept of accrual could not be pushed any further in its
interpretation to accommodate a judicially imposed concept of discoverability,
a trend which emerged in the absence of any reform of the limitation
legislation on the part of the New Zealand parliament.[209]
The Court stated that “some considerable straining of a core concept in the
Limitation Act [1950] has occurred to cope with what the courts have regarded
as particularly necessitous individual circumstances. But that does not mean
that the straining can properly be continued in a way which would take it well
past breaking point.”[210]
1.123
The New Zealand Law
Commission has published Reports on limitation legislation in 1988, 2000, and
2007.[211] The 2007
Report, published a month after the decision of the New Zealand Supreme Court
in Trustees Executors Ltd v Murray, recommended that a type of core limitation law
be introduced. The main recommendations were[212]:
· The primary limitation period
should, in general, be 6 years, subject to limited exceptions, for example,
that the limitation for a claim for bodily injury remain at 2 years[213];
· The start date of the primary or
ultimate limitation period was to be the date of the act or omission on which
the claim was based;
· The ultimate limitation period was
to be 15 years. Upon expiry, this ultimate limitation period bars a claim
completely unless “the fraud or concealment period applies”[214];
· The start date for an extension to the
primary limitation period was the date the plaintiff first acquires knowledge
of relevant matters. The purpose of the knowledge period was to give time to
the plaintiff who was not aware of his cause of action before the primary
limitation period expired.[215] The
knowledge period was recommended to be based “on discovery (or knowledge) of
the injury, loss or damage, nothing more.”[216]
It was also recommended that there be no knowledge period for a contract claim.[217]
1.124
The Commission’s 2007
recommendations were, broadly, implemented in the New Zealand Limitation Act
2010. The 2010 Act
introduced a 6 year primary limitation period and a 15 year ultimate limitation
period, both running from the date of the act or omission. The 2010 Act applies
to ‘money claims’, meaning “a claim for monetary relief at common law, in
equity, or under an enactment”.[218]
After the expiry of the initial 6 year primary limitation period, a ‘late
knowledge period’ allows a claimant to take claim within 3 years of discovering
their claim.[219] However,
the ultimate limitation period of 15 years still operates as against both the
primary and late knowledge periods.
1.125
Section 17 of the Limitation
Act 2010 introduced judicial discretion to deal with two specific
categories of claims, child abuse (sexual or non-sexual) and claims for relief
caused by gradual process, disease or infection. In such types of claims, even
where the relevant statute-barred defence has been or could be established, the
court may “if it thinks it just to do so on an application made to it for the purpose,
order that monetary relief may be granted in respect of the claim as if no
defence under this Part applies to it.”[220]
1.126
Section 18 of the Limitation
Act 2010 lists certain factors which the court may take into account when
considering such an application. These factors include considerations such as
any hardship that such an order could cause to the plaintiff and defendant if
it were made or was not made), the length and reasons for delay on the part of
the plaintiff, the effects of the delay, the defendant’s conduct, any steps
taken by the plaintiff to seek relevant expert advice, and so on.[221]
1.127
The wide range of
disparate provisions outlined in Part A demonstrates that the Statute of
Limitations 1957 is a very complex piece of legislation. This is because it
attempts to provide a multitude of separate limitation rules for many different
actions, and also due to a lack of any cohesive reform of limitations law.
Introducing a new Limitations Act with the aim of simplifying the limitation
rules which apply to the vast majority of actions in the courts system, the
civil law actions, would allow an element of clarity to be re-introduced to
this area of the law.
1.128
The Commission is of
the view that the current problems of the 1957 Statute cannot be rectified by
modestly revising the law as it stands. The Commission considers that a
fundamental root and branch reform would be more effective, introducing a
conceptually different approach to limitations.
1.129
Having regard to the
review above of models of reform in other jurisdictions, including England and
Wales, Canada and New Zealand, the Commission acknowledges that there is a
strong case in favour of a core limitations regime”.[222]
A core regime is essentially a uniform approach to limitations law, with
fairness, clarity and simplicity at its foundation. The key feature of the
various core regimes recommended by other jurisdictions has been the
introduction of the following three standards for the majority of civil
actions:
· A uniform basic limitation period;
· A uniform commencement date;
· A uniform ultimate limitation period.
1.130
The Commission remains
of the view expressed in the Consultation Paper that the introduction of such a
‘core limitations regime’ would provide the fundamental reform required. The
Commission has accordingly concluded, and so recommends, that there is a need
to introduce a limitations law based on the model of a “core limitation
regime”, consisting of a uniform basic limitation period; a uniform
commencement date; a uniform ultimate limitation period set of uniform
limitation periods applying to common law actions. The introduction of this
model for reform would have the result of remedying a number of anomalies that
exist under the current limitations legislation applicable to the high-volume
common law actions.
1.131
The Commission
recommends the introduction of a limitations law based on the model of a “core
limitation regime”, comprising: a uniform basic limitation period, a uniform
commencement date; and a uniform ultimate limitation period, and which would
apply to the types of claims discussed in this Report.
1.132
The Commission does not
intend in this Part to diverge from the main focus of this Report by discussing
in detail matters of practice and procedure in relation to limitation periods.
Nonetheless, the Commission considers it relevant to address a small number of
significant issues of procedure.[223]
1.133
The objective of a
limitations system is to encourage the timely resolution of legal proceedings.
This objective is achieved by limiting the time available to a plaintiff in
seeking a judicial remedy. If a claim is not brought within the relevant
limitation period, the defendant can choose to avail of a defence based solely
on the Statute of Limitations 1957 by arguing that the claim is out of
time and therefore “statute-barred.”
1.134
It is well-established
that the defendant must expressly plead the Statute of Limitations 1957 in
order to avail of the limitation defence; the defence is not self-executing
upon the expiry of the limitation period.[224] A court will not, therefore, raise the
question of time of its own motion. Thus, it is open to a defendant who might otherwise plead the Statute
to choose not to do so. If the defendant elects to contest the case on its
merits, and chooses not to plead the Statute, or through oversight fails
to plead the Statute, the plaintiff may still obtain his or her remedy,
even though the limitation period has expired. In this way, the
Statute has no effect unless and until pleaded. If the defendant specifically pleads that the
relevant limitation period has expired, and is successful, the result is that
the plaintiff’s proceedings are dismissed, and the defendant is given immunity
from any liability under the claim. Thus, the validity or the merits of the
plaintiff’s proceedings is not really at issue.
1.135
As already noted, in
most common law jurisdictions, such as Ireland, this procedural aspect to the
law of limitations is to be contrasted with the complete extinguishment of a
substantive right, which is associated with the concept of prescription.
Because limitations law operates at the procedural level only, some aspects of
the substantive rights involved in a claim may “survive” the limitation period.
Thus, if a debtor pays what turns out to be a statute-barred debt, the debtor
cannot subsequently claim back the money on the ground that it was not due.[225]
1.136
The Commission notes
here, to avoid any doubt, that these long-established procedural effects of
limitations periods should continue to apply in the context of the draft Limitations
Bill in the Appendix.
1.137
Failure to initiate proceedings within the relevant period does not
extinguish the plaintiff’s rights. The right asserted will remain intact; it is merely the method of
enforcement of that right that is affected. Thus, where the defendant chooses to plead the Statute,
the plaintiff retains other options to enforce his or her right outside of the
courts. In this sense, the effects of the Statute is, in general,
procedural rather than substantive in nature. As already discussed, this marks
a clear distinction between “limitation” and “prescription.”
1.138
There are important
exceptions to this general rule, the most important of which applies to actions
to recover land. In such cases, the expiry of the limitation period
extinguishes the title of the property of the legal owner along with the remedy
after the limitation period has expired.[226]
1.139
In McGuinness v
Armstrong Patents Ltd,[227]
McMahon J held that the date on which the cause of action accrues is included
in the limitation period. This is also now dealt with in section 18(h) of the Interpretation
Act 2005, which provides:
“Periods of time. Where a period of time is expressed to
begin on or be reckoned from a particular day, that day shall be deemed to be
included in the period and, where a period of time is expressed to end on or be
reckoned to a particular day, that day shall be deemed to be included in the
period.”[228]
1.140
The Commission is aware
from submissions received that an issue arises in connection with the reforms
proposed in this Report and the related issue of concurrent wrongdoers and
third party notices. Section 27(1)(b) of the Civil Liability Act 1961,
as amended by section 3 of the Civil Liability (Amendment) Act 1964, provides
that a third party notice must be served “as soon as reasonably possible.” In
addition, O.16, r.1(3) of the Rules of the Superior Courts 1986 deals
with the detailed procedure for third party notices. The Commission accepts
that this area has given rise to significant case law and that the phrase “as
soon as reasonably possible” gives rise to difficulties of interpretation.[229]
The Commission considers, however, that this matter woul;d need to be
considered in the context of a general review of the Civil Liability Act
1961, as amended, and has concluded that the current Report does not
present a suitable setting within which this can be addressed.
2
2.01
This Chapter examines
the first element of the proposed core limitation regime, the uniform basic
limitation period. In Part B, the Commission briefly summarises the advantages
of introducing a uniform basic limitation period. In Part C, the Commission
looks at the recommended length of a uniform basic limitation period of two
years. Finally, in Part D, the Commission discusses the recommended
commencement date of the uniform basic limitation period, the date of
discoverability.
2.02
As discussed in Chapter
1 of this Report, the Alberta Institute of Law Research pioneered the first
element of a ‘core limitations regime’, the concept of a uniform basic
limitation period. It is worth reiterating that the Institute noted in 1986
that “there is neither a sound theoretical nor practical foundation for the
practice of assigning different fixed limitation periods to different
categories of claim.”[230]
2.03
The Institute also
noted that this practice often works to the disadvantage of both plaintiffs and
defendants:
“Not only do we
think that the use of different limitation periods for different categories of
claims serves no useful purpose; we think that the practice results in
limitation periods which are too often unreasonable, either to claimants or to
defendants.”[231]
2.04
The difficulties
resulting from the Statute of Limitations 1957 (as amended) arise from
the large number of disparate provisions setting out complex rules for the
application of various limitation periods. As the Alberta Institute
emphatically stated, there is no rational basis for such an approach to the
limitation of actions.
2.05
As provisionally
recommended by the Commission in the Consultation Paper,[232]
a new Limitations Act setting out a core limitation regime would eliminate the
majority of these difficulties, the first element of such a regime being the
introduction of one basic limitation period.
2.06
Such a streamlined and
simpler Limitation Act would allow for much needed clarity in this area of the
law, and enable greater efficiency in the initiation and administration of
civil proceedings.
2.07
As discussed in Chapter
1, the Consultation Paper focused on what the Statute of Limitations
1957 describes as common law actions. This category covers a broad range of
civil claims including 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.[233]
These common law actions are the focus point of the Commission in this Report
when discussing the application of a core limitations regime to a range of
civil or common law actions.
2.08
Practically speaking,
no jurisdiction has managed to reduce all limitation periods to just one
uniform basic limitation period, but a basic limitation period could be applied
to a wide range of civil actions which form the bulk of civil litigation.
2.09
It is clear that the
introduction of a basic limitation period would also introduce greater clarity
and coherence to the law of limitations. A core limitations regime with a basic
limitation period will prove more straightforward to interpret and to apply
practically, and greatly contribute to the overall simplification of the
limitations regime.
2.10
The Commission
recommends the introduction of a uniform basic limitation period, which would
apply to the common law actions as defined in this Report.
2.11
The next consideration
is the length of the uniform basic limitation period. To a certain extent,
fixing on any particular period cannot be straightforward as the interests of
both the plaintiff and the defendant have to be balanced. As discussed in
Chapter 1, the plaintiff’s right of access to the courts is an unenumerated
personal right guaranteed by Article 40.3.1° of the Constitution. The right to
litigate has also been recognised as a property right, which must be vindicated
under Article 40.3.2° of the Constitution. The defendant’s right to a speedy
trial is a facet of the constitutional right to fair procedures and is
protected under Article 40.3.1° of the Constitution. It can also be said to be
a facet of the “judicial duty to ensure the timely administration of justice
which is derived from Article 34.1”.[234]
2.12
Dealing with civil
litigation in an efficient and timely manner is also an inherent part of the
court’s jurisdiction under Article 34.1. A limitation period should support the
plaintiff’s right of access to the courts, as prescribed by the Constitution,
while also encouraging plaintiffs to make claims without undue delay, thus
protecting defendants from the unjust pursuit of stale claims.[235]
It must be the aim of limitations legislation to strike a fair balance between
these interests. As summarised by the Law Commission for England and Wales, a
limitation period must generally encompass the following points; it must give
the plaintiff adequate time to consider their position, take legal advice,
investigate the claim, and begin preparing their case, but not so much time
that they can be a in a position to delay unreasonably in issuing proceedings.[236]
2.13
Some of the basic
limitation periods which apply in other jurisdictions can be summarised as
follows, and they give a general indication of what the trends are:
Uniform Basic Limitation Periods: |
Running from: |
|
Alberta[237] |
2 years |
Discoverability |
Ontario[238] |
2 years |
Discoverability |
Saskatchewan[239] |
2 years |
Discoverability |
Uniform Law Conference of Canada[240] (“ULCC”) |
2 years |
Discoverability |
England and Wales (as recommended by the Law Commission in 2001) |
3 years[241] |
Discoverability[242] |
Western Australia |
6 years[243] |
Accrual |
New Zealand[244] |
6 years |
The date of the act or the omission on which the claim is based.[245] |
2.14
The Consultation Paper
included a discussion of the advantages of different length basic limitation
periods, from one year to 6 years, or even using a variety of fixed lengths[246];
and invited submissions in this regard.
2.15
The Commission
concluded that there were two options for consideration in determining the
appropriate length of a basic limitation period; either a two year basic
limitation period, or three basic limitations periods of specific application
of one, two or six years respectively. A two year basic limitation period was
favoured, as it was thought that this would be sufficient for the majority of
tort or contract based actions.
2.16
The rationale for
favouring a 2 year limitation period reflects a pragmatic approach. To begin
with, a 2 year limitation period already applies to a variety of civil actions
in Ireland, including personal injuries actions.[247]
A further advantage is that plaintiffs will be encouraged to act upon their
rights, and bring proceedings without delay (though without placing undue
pressure on them to initiate proceedings).
2.17
This was also the view
of the Committee on Court Practice and Procedure at the time of the reduction
in 2004 of the limitation period for personal injuries from three years to two.[248] The Committee stated that the reduction of the
limitation period for personal injuries actions was “consistent with the
desired objective of developing an efficient and effective system of personal
injuries claims determination”.[249]
2.18
The Commission
recommends the introduction of a 2 year basic limitation period, which would
apply to the common law actions as defined in this Report.
2.19
The Commission
considered a wide range of applicable limitation periods in the Consultation
Paper.[250] From this
analysis it is clear that the majority of limitation periods contained in the Statute
of Limitations 1957 run from the date of accrual of the cause of action. However,
there are some exceptions. Discoverability principles apply in personal injuries
actions[251], wrongful
death actions[252], and
defective products actions[253]. This
piecemeal approach to commencing limitation periods serves to exaggerate
distinctions between categories of actions, and perpetuates difficulties
between overlapping actions in contract and tort. The introduction of an
easily-identifiable starting point for most types of actions would greatly ease
these problems.
2.20
There were four
possible options, discussed by the Commission in the Consultation Paper[254],
from which a basic limitation period could run, namely:
(1)
Date of accrual[255]
(2)
Date of the act or
omission giving rise to the cause of action
(3)
Date of discoverability
(4)
Alternative starting
dates (a combination of the above).
2.21
The Commission favoured
a start date of the date of discoverability; this means that the limitation
period would run from the date when the plaintiff becomes aware – or could have
become aware if exercising reasonable diligence – of the existence of a cause
of action and the relevant facts relating to the cause of action.[256]
2.22
Discoverability rules
are based solely on the state of the plaintiff’s knowledge, and thus the
defendant’s conduct is irrelevant. The limitation period would start to run
from the date when the plaintiff becomes aware – or could have become aware if
exercising reasonable diligence – of the existence of the cause of action. This
essentially means that the relevant facts must be within the plaintiff’s means
of knowledge for the limitation period to begin running against them.
2.23
The principal reasoning
in favour of using this start date is the advantage that the plaintiff cannot
be expected to bring an action until he or she is aware, or ought to have been
aware, of the existence of a cause of action. This means that the length of a
basic limitation period does not have to be as long as a limitation period that
would run from the date of accrual as there is no need to allow the plaintiff
time to ‘discover’ his or her cause of action. This test reduces the risk of
possible injustice which exists in circumstances where a limitation period runs
from the date of the act or omission as such a limitation period may expire
before the plaintiff realises that they have a cause of action.
2.24
Furthermore, as stated
by the Law Reform Commission of Western Australia in relation to adopting such
a discoverability test, “if such a rule were adopted, there would be no need
for extension provisions to cater for cases in which the damage was not
immediately discoverable, because they would be taken care of by the general
rule.” [257]
2.25
As discoverability does
not distinguish between different kinds of damage (that is, between obvious or
patent damage which materialises more or less immediately, and latent damage
which takes longer to become apparent), it also allows a uniform approach to be
taken to the application of the basic limitation period to a wide variety of
actions.
2.26
The Consultation Paper
also referred to the Commission’s 2001 Report on Claims in Contract and Tort
in Respect of Latent Damage (other than Personal Injury),[258]
in which the Commission had already acknowledged that “the introduction of
discoverability as the sole starting point of a limitation period has much to
offer in terms of simplicity and certainty in the law.”
2.27
In terms of determining
how this ‘date of knowledge’ or date of discoverability should be calculated,
there have been many different formulations in various jurisdictions of what
knowledge is required in order for a claim to be deemed ‘discoverable’, some of
which are summarised below.[259]
2.28
Typically,
discoverability tests depend upon the acquisition of knowledge of specified
matters and issues by the plaintiff. This leads to interpretative problems,
such as what is meant by ‘knowledge’, and whether a plaintiff can be fixed with
constructive notice of facts.
2.29
In Ireland, discoverability principles apply to personal injuries
actions[260], wrongful
death actions[261], and
defective products actions[262]. Where
discoverability principles apply, the limitation period runs from a defined
“date of knowledge”. The “date of knowledge” test was first introduced under
the Statute of Limitations (Amendment) Act 1991 and is applicable to
personal injuries and wrongful death actions. It consists of a mix of actual
and constructive knowledge. Under section 2(1) of the 1991 Act, a person has
actual knowledge if he or she knows the following:
a.
That the person alleged
to have been injured had been injured;
b.
That the injury in
question was significant;
c.
That the injury was
attributable in whole or in part to the act or omission which is alleged to
constitute negligence, nuisance, or breach of duty;
d.
The identity of the
defendant; and
e.
If it is alleged that
the act or omission was that of a person other than the defendant, the identity
of that person and the additional facts supporting the bringing of an action
against the defendant.[263]
2.30
The term “significant”
is not defined in the 1991 Act. The English Limitation Act 1980 contains
an almost identical date of knowledge test consisting of requirements (b) to
(e) as listed in the paragraph above.[264]
However, the 1980 Act goes on to define what is meant by the requirement of a
“significant injury”. Under section 14(2) of the English 1980 Act, an injury is
“significant” if the plaintiff would “reasonably have considered it
sufficiently serious to justify his instituting proceedings for damages against
a defendant who did not dispute liability and was able to satisfy a judgment.”[265]
2.31
Whitely v Minister
for Defence[266] was the first case to
deal extensively with the interpretation of section 2 of the 1991 Act. It was
one of the many “Army deafness” claims of the 1990s, a noise-induced hearing
loss case. The plaintiff had been a member of the Defence Forces from 1957 to
1978. During this period, he was exposed to excessive noise, with no hearing
protection. After the plaintiff left the Defence Forces in 1978, he suffered
from tinnitus and other hearing related problems. His claim was not commenced
until 1995, and the crucial question was whether his claim was statute barred
by the three year limitation period for personal injuries claims at this time;
in other words, at what point in time did the plaintiff ‘discover’ his claim. Quirke J considered the application
of section 2 in detail.
2.32
The approach adopted to
section 2 in Whitely was firstly to interpret the lack of a definition
for “significant injury” as indicating an intention on the part of the
Oireachtas that section 2(1) of the 1991 Act should not be confined to the
meaning as attributed to “significant” under the English 1980 Act. Quirke J
stated:
“Accordingly, s. 2 of the Act of 1991 expressly avoids any
attempt to define what is meant by a 'significant' injury within the meaning of
s. 2(1)(b) of the Act, and I take the view that by excluding any definition it
was the intention of the legislature to avoid confining the sense in which the
word 'significant' ought to be understood to the terms of the definition
contained in s. 14(2) of the English Act or to any particular terms. If I am
correct and if it was intended that a broader test should be applied than was
contemplated by the definition contained within s. 14(2) of the English Act,
then it would seem to follow that the test to be applied should be primarily
subjective and that the court should take into account the state of mind of the
particular plaintiff at the particular time having regard to his particular
circumstances at that time.”[267]
(emphasis added)
2.33
Thus Quirke J was of
the opinion that a ‘broader and more subjective test’ had to be applied.[268]
However, he did not consider the test to be wholly subjective, rather he described
the date of knowledge test as “primarily subjective because it must be
qualified to a certain extent by the provisions of s.2(2) of the Act of 1991”[269],
that a person’s “knowledge” includes knowledge that he or she might
reasonably have been expected to acquire:
(a)
from facts
ascertainable by him, or
(b)
from facts
ascertainable by him with the help of medical or other appropriate expert
advice which it is reasonable for him to seek.[270]
2.34
He felt that section
2(2) introduced “a degree of objectivity into the test”.[271]
Section 2(2) essentially introduces the ‘reasonable man’ standard; or an
element of constructive knowledge into the discoverability test by providing
that a person’s knowledge includes knowledge which he might reasonably have
been expected to have been aware of.
2.35
Quirke J was of the
opinion that the plaintiff knew or ought reasonably have known from facts which
were observable by him alone, that he had sustained an injury which was
significant. From the facts of the case, Quirke J was of the view that as early
as 1979 or 1980, the plaintiff would have considered his hearing loss and tinnitus
sufficiently serious to justify his instituting proceedings for damages.[272]
As a result, the plaintiff’s claim was dismissed on the basis that it was
statute-barred.
2.36
The following overview was
given of this interpretation of section 2:
“While there
are references in Quirke J’s judgment to the subjective quality of the test
prescribed by the 1991 Act, in truth the effect of section 2(2) is to render it
largely an objective one. The test is, however, centred on the circumstances of
the plaintiff in determining whether this plaintiff, in the light of his
or her experience ought to have known of the facts which are deemed crucial by
section 2(1).”[273]
2.37
Thus, in the Whitely
case, the interpretation of what is meant by “significant injury” in the
‘date of knowledge’ test is really an objective test, but the court does take
account of the plaintiff’s individual circumstances in determining whether it
was reasonable for that particular plaintiff to have constructive knowledge of
the facts necessary under section 2(1). This interpretation was accepted
by the Supreme Court in Bolger v O’Brien,[274]
with emphasis once again placed on the objective element of the requirement of
“significant injury”.
2.38
In Bolger v O’Brien, the plaintiff
suffered injuries in a road traffic accident in early 1990. He suffered
extensive bruising and lacerations, had physiotherapy for several weeks and was
unfit to return to work for several months due to the back injuries he
sustained. He did not commence proceedings until late 1993. The High Court
dismissed the defendant’s claim that the proceedings were statute barred as on
the basis that the plaintiff did not realise the full significance of his
injuries until late 1992. The Supreme Court upheld the defendant’s appeal. The
Supreme Court stated that the test of constructive knowledge was as follows:
“The test is
when he knew or ought reasonably to have known ‘from facts observable or
ascertainable by him’ that he had suffered a significant injury ...
By any
standards, subjective or objective, the plaintiff had suffered a significant
injury and he must have been so aware certainly from the time of his return to
work and his realisation that he was not fit for manual work.
The fact that
the respondent did not realise the full significance of the effect of such
injury is not of relevance once it is established that he knew that the injury
was significant.”[275]
2.39
A final point to note
in regard to section 2 of the 1991 Act is that the largely objective
nature of the date of knowledge test is also somewhat tempered by section 2(3)
of the Statute of Limitations (Amendment) Act 1991.[276]
Under section 2(3), a person will not be fixed with knowledge of a fact that
could only be ascertained with the help of expert advice, so long as he or she
has taken all reasonable steps to obtain that advice.[277]
Additionally, no person will be fixed with knowledge of a fact relevant to the
injury suffered, where he or she has failed to acquire this knowledge because
of the injury in question.[278]
2.40
This subsection arose
from one of the recommendations made by the Commission in its 1987 Report on
the Statute of Limitations: Claims in respect of latent personal
injuries.[279]
(aa)
Previous Law Reform
Commission Recommendations: 1987, 2001 and 2009
2.41
The Commission’s 1987 Report
on the Statute of Limitations: Claims in respect of latent personal
injuries recommended that a test of discoverability be introduced in
respect of personal injuries actions.[280]
The Commission considered each aspect of the discoverability test in detail.
The definition of the ‘date of knowledge test’ as outlined in its ‘Draft Scheme
of a Bill to amend the Statute of Limitations 1957’ was the formula adopted
almost exactly by the Oireachtas in section 2 of the Statute of Limitations
(Amendment) Act 1991.[281]
2.42
In this 1987 Report,
the Commission considered the question of the whether the discoverability test
was subjective or objective in nature. The view of the Commission was very
similar to the conclusions reached in both the Whitely and Bolger cases,
discussed above. Essentially, this view is that the test could be considered in
terms of what a reasonable man ought to have known whilst in the circumstances
of the plaintiff. The Commission stated as follows:
“It can be argued
that there is not in general a great deal of difference between an objective
and a subjective approach in this context. The test of what a reasonable man
should know is in one sense undoubtedly objective, but it also must take
account of at least some aspects of the particular person’s subjective
experience.”
2.43
In 2001, the Commission
formulated a date of knowledge test for legal actions other than personal
injury claims. In the Report on Actions in Contract and Tort in Respect of
Latent Damage (other than Personal Injury),[282]
the Commission recommended the introduction of a date of knowledge test
consisting of the date on which the plaintiff first knew or in the
circumstances ought reasonably to have known the following:
·
That the loss for which the plaintiff seeks a remedy had occurred;
·
That the damage was attributable to the conduct of the defendant; and
·
That the loss, assuming liability on the part of the defendant, warrants
bringing proceedings.[283]
2.44
This formula of the
proposed date of knowledge test for non-personal injury actions in tort and
contract is similar to the date of knowledge test used in personal injuries
actions; however, it is simpler in structure and perhaps easier to interpret as
a result. Furthermore, this formulation does not contain any requirement that
the plaintiff should know that the injury is “significant”.[284]
2.45
The Commission
considered that the existing date of knowledge test, as applicable to personal
injuries actions, was unnecessarily complex and that its interpretation had
caused difficulty, and therefore a new model for this test should be
introduced.[285]
2.46
The Commission favoured
the introduction of an objective test of reasonableness tempered only by
certain subjective elements, such as the date of which the plaintiff first
knew, or in the circumstances ought to have known of the relevant facts. The
Commission considered extensively, and was greatly influenced by, the work of
the Alberta Law Reform Institute on the topic of limitations. The Alberta
Institute explains this type of test as follows:
“The discovery
rule incorporates a constructive knowledge test which charges the claimant with
knowledge of facts which, in his circumstances he ought to have known. This is
the reasonable man standard.”[286]
2.47
Thus, under this
formulation, a constructive knowledge test employs a “reasonable man” standard,
equivalent to the “reasonable man” test that has developed in the law of torts.
The relevant question becomes “when should the plaintiff, as a reasonable
person, have known” of the relevant facts?[287]
The Commission considered that this option strikes “desired balance between a
purely objective and a subjective standard of reasonableness.”[288]
The recommendations of the Commission in the 2001 Report on the Statute of
Limitations: Claims in Contract and Tort in Respect of Latent Damage were
not implemented.
2.48
In the admittedly
different setting of the partial defence of provocation to a charge of
homicide, which the Commission discussed in its 2009 Report on Defences in
Criminal Law, the Commission considered in detail the ‘reasonable man’
test. The Commission considered that, in the context of provocation,
significant confusion was caused by using language such as ‘objective’ and
‘subjective’ and by declaring any test incorporating the reasonable or ordinary
man standard to be one or the other, or a mixture of the two elements. The
Commission stated that “it would be preferable if the expressions ‘objective’
and ‘subjective’ were avoided.”[289]
2.49
The Commission
considered that the ‘reasonable man’ standard should be included in its
proposed test for provocation, as it is “important to apply a community test to
reflect a reasonable standard of behaviour in society.”[290]
Thus, the Commission felt that an entirely subjective approach to the test of
provocation could not be recommended, even though this was the test applied
historically. The Commission preferred an approach which takes into
consideration the characteristics of the accused, but only to a limited extent,
as the ‘reasonable standard’ still had to be taken into account as well. This
allows for the personal or individual elements of the accused to be taken into
consideration, against the background of the reasonable or community standard.[291]
2.50
The Commission favours
a similar approach to the discoverability test in the context of this project,
in terms of the constructive knowledge element of what the claimant ought to
have known. The Commission is of the view that it is not of importance whether
the test can be categorised as subjective, objective or a mixture of both;
rather the reasonable man standard should be applied in terms of what the
reasonable man would have done in the circumstances of the plaintiff.
2.51
The Alberta Limitations
Act (RSA 2000) broadly enacted
the recommendations of the Alberta Institute’s seminal work of 1986 and 1989.[292]
Under section 3(1)(a), the date of knowledge is the date on which the claimant
first knew, or in circumstances ought to have known, all of the following:
(ii) That the injury was attributable to conduct of the defendant; and
(iii) That the
injury warrants bringing proceedings, assuming liability.[293]
2.52
This formulation of the
date of knowledge test is a great deal simpler than the Irish or English
current tests, and it omits the requirement of the injury being significant.
Moreover it focuses on what the claimant actually knew, or should have known in
the circumstances, and not on what a fictional reasonable man ought to have
discovered.[294]
2.53
The Law Commission for
England and Wales published its final recommendations on the introduction of a
core limitations regime in 2001. It recommended that the ‘date of knowledge’
test should be the date on which the claimant has actual or constructive
knowledge of the facts that give rise to the cause of action, the identity of
the defendant, and that the injury, loss or damage that has occurred be
significant.[295] It
followed the current approach (in England and Wales) to the definition of
“significant” in that it proposed that a claimant would be aware of such
injury, loss or damage being significant where the claimant knew the full
extent of the injury, loss or damage, or a reasonable person would think that a
civil claim was worth making in respect of such injury, loss or damage (on the
assumption that the defendant does not dispute liability and is able to satisfy
a judgment).[296]
2.54
The Law Commission also
considered in detail what the constructive knowledge element of the ‘date of
knowledge’ test was to consist of. It stated that a completely objective test
for constructive knowledge which took no account of the claimant’s personal
circumstances could be devised, but it would be difficult to apply. It
summarised the problem with this purely objective approach as follows:
“Preventing the
courts from giving any consideration at all to any characteristic of the
claimant (which is what would be required by a wholly objective test) runs
counter to the justification for a discoverability test; that the limitation
period should only start when the claimant has had reasonable opportunity to
discover the facts which give rise to the cause of action. Although all tests
for the date of knowledge provide for the constructive knowledge of the
claimant, the purpose of this is to fix the claimant with knowledge which he or
she would have had if he or she had acted reasonably, not to fix the claimant
with knowledge which he or she could not possibly have.”[297]
2.55
The Commission
recommended that the “claimant should be considered to have constructive
knowledge of the relevant facts when the claimant in his or her circumstances
and with his or her abilities ought reasonably to have known of the relevant
facts.”[298]
2.56
Since the publication
of the report in 2001, it has become clear that the recommendations of the
England and Wales Law Commission will not be implemented. Plans to introduce
the proposed reform of introducing a core limitations regime appear to have
been postponed indefinitely for the time being. In November 2009, Parliamentary
Under-Secretary of State for Justice (Bridget Prentice) announced by way of
ministerial statement that the proposed draft Civil Law Reform Bill would
not include provisions to reform the law of limitation of actions. The reasons given
were as follows:
These
provisions were based on a Law Commission Report of 2001. But a recent
consultation with key stakeholders has demonstrated that there are insufficient
benefits and potentially large-scale costs associated with the reform. In addition,
the courts have remedied some of the most significant difficulties with the law
that the Law Commission identified, for example, in relation to the limitation
aspects of child abuse cases. The limitation reforms will therefore not now be
taken forward.[299]
2.57
The draft Civil Law
Reform Bill published in December 2009 did not contain any provisions
relating to the reform of the limitation of actions,[300]
and it appears that the government has decided against making any changes to
the current limitations regime in England and Wales. Indeed, in 2011, the UK
Government announced it did not intend to proceed with even the remaining
provisions of the draft Civil Law Reform Bill.
2.58
In the past, there has
been some difference in opinion in the English courts as to whether the test of
constructive knowledge in section 14(3) of the Limitation Act 1980 is
objective or subjective.[301] Since the publication of the 2001 Report by the
England and Wales Law Commission, it appears that the previously divergent
views of the English Court of Appeal regarding how to approach the constructive
knowledge test, have since been settled, as the UK Supreme Court now favours
the strictly objective approach, as indicated by its decision in London
Strategic Health Authority v Whiston,[302]
which broadly confirms the decision of its predecessor, the UK House of Lords,
in Adams v Bracknell Forest Borough Council.[303]
2.59
The UK Supreme Court
seems to have placed particular emphasis on the ‘saver’ provision of section 33
of the English Limitation Act 1980 in the context of how to interpret
the requirements of section 14(3) (the constructive knowledge of the claimant).
Section 33 allows the court to use its discretion to disregard the expiry
of a limitation period in cases involving personal injuries or death, where it
considers it equitable to do so. Lord Dyson accepted “that the decision in Adams
case requires the court to expect a heightened degree of curiosity of the
reasonable claimant than it would absent s.33.” Therefore, the UK Supreme Court
considered that the existence of section 33 allowed the court to take a
stricter and more objective view of the constructive knowledge test, than it
might otherwise have done but for section 33 providing judicial discretion to
disregard strict adherence to limitation periods.
2.60
In the Whiston
case, Lord Dyson summed up the decision in Adams regarding the objective
approach as follows:
“In my
judgment, the ratio of Adams is that section 14(3) requires an objective test
to be applied. It was accurately summarised by Eady J at paras 10 and 36 of his
judgment. The importance of Adams is that it settled the difference between the
objective (or mainly objective) test applied in Forbes and the subjective test
enunciated in the earlier cases to which I have referred in favour of the
former... Thus the court should consider what is reasonably to have been
expected of the claimant in all the circumstances of the case. That is not to
say that the court should overlook the fact that it must apply an objective test.
I also accept that, in deciding whether in all the circumstances of the case,
the claimant should reasonably have made appropriate inquiries, the court
should bear in mind that the House of Lords has "tightened up" the
requirements of constructive knowledge in the light of the existence of the
discretion in section 33 and the policy of the 1980 Act to avoid the injustice
to defendants of vexing them with stale claims.”[304]
2.61
The approach of the UK
Supreme Court is similar in construction and practical effect to the date of
knowledge test as applied by the Irish High Court and Supreme Court in the Whitely
and Bolger cases. Although it is an objective test, the
circumstances of the plaintiff are taken into consideration in determining what
a reasonable person in the circumstances of the plaintiff would do.
2.62
In the Consultation
Paper on the Limitation of Actions, the Commission was of the view
that the proposed reform should clearly state what knowledge is required for
discoverability, or in other words, the date of knowledge test. It was also of
the opinion that this test should be easily understood so that it would be
clear when the limitation period begins to run.[305]
2.63
In the Consultation
Paper, the Commission came to the general conclusion that a starting date for
the basic limitation period should be chosen which would:
(a) Eliminate the difficulties associated with
using the date of accrual as a starting date;
(b) Ensure that the limitation period does not
begin to run before the plaintiff knows of its existence; and
(c) Remedy any injustice that could arise if a
short limitation period was to run from the date of the act or omission.[306]
2.64
The Commission remains
of the view that a commencement date which uses a simplified formulation of the
existing date of knowledge test (that is, discoverability principles) would
meet these requirements, and thus be the preferable commencement date for a
uniform basic limitation period. As stated above in relation to the Alberta
date of knowledge/discoverability test, following this approach to phrasing the
test brings the focus to bear on what the claimant actually knows, or should
have known in the circumstances, and not on what a fictional reasonable man
ought to have discovered.
2.65
The Commission is also
of the view that the discoverability or date of knowledge test should be
primarily an objective test with a subjective element of considering what a
reasonable person ought to have done, in the particular circumstances of the
plaintiff. Thus, the standard in the date of knowledge test (discoverability
test) is objective, but it does not prohibit consideration of certain
particular characteristics of the plaintiff. As the Commission previously
summarised in its 2001 Report on Latent Damage in Contract and Tort (excluding
Personal Injuries):
“The phrase,
‘in the circumstances’ in the proposed test is intended to take into account
those factors which cannot be divorced from the facts of the case. The law
could not fail to do otherwise; the frequently quoted example is that a blind
person will not be required to see... The plaintiff’s blindness will be one of
the ‘circumstances’ in which the reasonable person finds himself.”[307]
2.66
Subjectivity is
permitted only to the extent that the characteristics or circumstances cannot
be separated from an analysis of the situation. The standard overall is an
objective one in that “little peculiarities or foibles will not be tolerated...
The reasonable person is not naive or unobservant.”[308]
2.67
The Commission
recommends that the basic limitation period should run from the date of
knowledge of the plaintiff, and that the date of knowledge should be calculated
by reference to the date on which the plaintiff first knew, or ought reasonably
to have known, the following:
(a) that the injury, loss, or damage had occurred;
(b) that the injury, loss, or damage
is attributable to the conduct of the defendant;
(c) that the injury, loss, or damage
warrants bringing proceedings, assuming liability on the part of the defendant;
(d) the identity of the defendant; and
(e) if it is alleged that the act or
omission was that of a person other than the defendant, the identity of that
person and the additional facts supporting the bringing of an action against
the defendant.
2.68
The Commission
recommends that determining a person’s knowledge under the ‘date of knowledge
test’ for the commencement of the basic limitation period should include both
actual and constructive knowledge.
2.69
The Commission
recommends that constructive knowledge should be knowledge that a person might
reasonably have been expected to acquire from facts observable or ascertainable
by him or her, or from facts ascertainable by him or her with the help of
professional expert advice.
2.70
The Commission
recommends that the plaintiff should be considered to have constructive
knowledge of the relevant facts when he or she, in his or her circumstances,
ought reasonably to have known of the relevant facts.
2.71
The Commission
recommends that the test for determining the date of discoverability should be
based on the test in section 2(1) of the Statute of Limitations (Amendment) Act
1991. The Commission therefore recommends that the start date for the
commencement of the 2 year basic limitation period applicable to the common law
actions as already defined in this Report should include actual and
constructive knowledge and be stated in the following manner:
“The
commencement date of the basic limitation period consists of the date of
knowledge of the person (whether he or she is the person injured or a personal
representative or dependant of the person injured), and meaning the date on
which the person first knew, or ought reasonably to have known in the
circumstances, of the following facts:
(a) That the injury, loss or damage had occurred;
(b) That the injury, loss or damage in question warrants the bringing of
proceedings against the defendant;
(c) That the injury, loss or damage, was
attributable in whole or in part to the act or omission of the defendant which
is alleged to constitute negligence, nuisance, or breach of duty or otherwise
give rise to a claim;
(d) the
identity of the defendant, and
(e) if
it is alleged that the act or omission was that of a person other than the
defendant, the identity of that person and the additional facts supporting the
bringing of an action against the defendant,
and knowledge that any acts or
omissions did or did not, as a matter of law, involve negligence, nuisance or
breach of duty is irrelevant.”
2.72
The Commission
also recommends that the definition of constructive knowledge in sections 2(2)
and 2(3) of the Statute of Limitations (Amendment) Act 1991 should be applied,
using the following formula:
“Constructive
knowledge is knowledge that a person might reasonably have been expected to
acquire either:
(a) from facts observable or ascertainable by him or her; or
(b) from facts ascertainable by him or her with the help of medical or other
appropriate expert advice which it is reasonable for him or her to seek.
Notwithstanding
this:
(a) a person will not be fixed with knowledge of a fact ascertainable
only with the help of expert advice so long as he or she has taken all
reasonable steps to obtain (and, where appropriate, to act on) that advice; and
(b) a person injured shall not be fixed under this section with
knowledge of a fact relevant to the injury which he or she has failed to
acquire as a result of that injury.”
3
3.01
An ‘ultimate limitation
period’ is a limitation period which acts as a final cut-off point for legal
proceedings. Beyond this ‘long-stop’ period of limitation, no action can be
brought regardless of whether the plaintiff has either discovered his cause of action
or whether a cause of action has accrued. This is, however, subject to the
consideration of exceptional circumstances, which the Commission discusses in
Chapter 4, below.
3.02
In Part B, the
Commission examines the history and function of the ultimate limitation period.
In Part C, the Commission considers the appropriate length of a long-stop
limitation period after summarising the range of ultimate limitation periods
applicable in other States. In Part D, the appropriate starting date of an
ultimate limitation period is analysed, and Part E consider its application to
personal injuries actions.
3.03
An ultimate limitation
period is a limitation period beyond which no action can be brought, even if
the cause of action has not yet accrued or is not yet discoverable. The concept
of an ultimate limitation period is not a novel one. This type of limitation
period dates back, in Ireland, to the Real Property Limitation Act 1833,
under which it was possible to extend limitation periods for actions to recover
land in the event of infancy or disability only up to a period of 40 years from
the date on which the cause of action accrued.[309]
This ultimate limitation period was later reduced to 30 years.[310]
Furthermore, a 10 year ultimate limitation period applies to product liability
claims under the Liability for Defective Products Acts 1991.[311]
3.04
The Commission has
previously considered ultimate limitation periods. In 2001, it recommended the
introduction of ultimate limitation periods for tort and contract actions in
respect of latent damage (excluding personal injuries)[312]
and, in 2000, for actions in respect of non-sexual child abuse.[313]
By contrast, in 1987, the Commission did not recommend the introduction of an
ultimate limitation period in respect of latent personal injuries actions[314]
or, in 1982, for actions relating to defective premises.[315]
3.05
In recent times, a
trend has emerged in other jurisdictions of applying an ultimate limitation
period to a wider range of actions. For example, New South Wales was one of the
first to introduce the concept of an ultimate limitation period in its
limitations legislation. In its report of 1967, the Law Reform Commission of
New South Wales, recommended a ‘major change in principle’ in limitations law
with the proposal “that it be made a general rule that, on the expiration of
the limitation period for a cause of action, the personal right to debt,
damages or other money, or the right of property which the cause of action
would enforce is to be extinguished.”[316]
This meant that the overriding principle was now to be one of certainty and
finality as regards the extent of limitation periods.
3.06
The Law Reform
Commission of New South Wales also considered that even in cases involving a
disability on the part of the claimant, or other circumstances which would
usually allow or justify the extension or postponement of a limitation period
(such as mistake, or fraud), a limitation period should not be allowed to be of
indefinite duration and a final cut-off point should be imposed beyond which no
claims could be brought. It stated:
“We think,
however, that, quite apart from questions of title to land, a statute of
limitations ought not to allow an indefinite time for the bringing of actions
even if the disabilities and other matters dealt with in Part III of the Bill
do exist. These disabilities and other grounds of postponement may well be
outside the knowledge of the defendant, and we think it right that, after a
period of thirty years has elapsed, there should be no further postponement of the
statutory bar on any ground.”[317]
3.07
This approach
was reflected in the resulting New South Wales legislation, the Limitation
Act 1969. Thus, although a limitation period can be
extended under the usual exceptions relating to disability, fraud or mistake,
any action (excluding personal injuries actions) is nonetheless subject to an
‘ultimate bar’ of 30 years “from the date from which the
limitation period for that cause of action fixed by or under Part 2 runs.”[318] No other jurisdiction in
Australia has a similar provision.[319]
3.08
Personal injuries actions in New South Wales are also subject to a
‘long-stop’ period of 12 years, but this can be extended by application to the
court for up to three years.[320] A similar provision is in effect in Victoria, Australia, also in
respect of personal injuries actions.[321]
3.09
Other jurisdictions
followed suit over time. In British Columbia, an ultimate limitation period of
30 years was introduced in 1975[322]
following a recommendation of the British Columbia Law Institute in 1974.[323]
Other Canadian provinces such as Alberta[324],
Saskatchewan[325], Ontario[326]
and New Brunswick[327] more
recently reformed their limitation regimes in the 1980s and each introduced
ultimate limitation periods of shorter duration; 10 years in Alberta, and 15
years in Saskatchewan, Ontario and New Brunswick. Most recently, New Zealand
enacted the Limitation Act 2010, which included an ultimate limitation
period of 15 years of general application, [328] excluding only certain actions to
recover land and actions in respect of trust property.[329]
3.10
The objective of an
ultimate limitation period has been said to be defendant orientated, as “its
objective is to benefit the entire society of potential defendants by cleansing
the slate as to any alleged breach of duty at some fixed point in time after it
occurred.”[330]
3.11
As discussed in Chapter
2, the application of a basic limitation period with a starting date of the
date of knowledge of the plaintiff has the clear advantage of being very fair
to plaintiffs, as “time will not run against them until they know, or could
reasonably be expected to know, the facts necessary to bring a claim.”[331]
Conversely, it also introduces a level of uncertainty for defendants in respect
of the extent, or duration, of their liability for potential claims. There is
“a theoretical possibility that a defendant could be faced with a claim long
after he could reasonably have assumed that the matter is at an end.”[332]
Including an ultimate limitation period in any proposed legislation would work
to lessen the impact of this increased uncertainty for defendants.
3.12
An ultimate limitation
period re-introduces an element of certainty for defendants. The defendant will
not be unfairly asked to respond to, and defend, a claim after a significant
period of time.
3.13
The ultimate limitation
period goes to the core of the arguments in favour of limitation periods. The
Alberta Institute summarised these principles in its influential 1986 paper: [333]
·
Evidentiary Reasons: a claimant alleges that he had a right, and that
the defendant violated that right. To assess the truth of these allegations,
the facts must be considered, however, naturally, evidence will deteriorate
with the passage of time. “When a point in time has been reached when evidence
has become to unreliable to furnish a sound basis for a judicial decision, out
of fairness to the defendant, public policy dictates that a claim should not be
adjudicated at all.” [334]
·
Certainty Reasons (or ‘peace and repose’): there ought to be a point in
time after the occurrence of conduct which might have been legally wrongful, at
which time the defendant is entitled to peace of mind. We are, each of us, a
potential defendant and claimant, and it serves society as a whole to have the
slate wiped clean periodically.
·
Economic Reasons: many people engage in providing goods and services to
others, and may be subject to claims. These persons usually preserve records of
their activities and usually maintain liability insurance. These records are
often maintained in cycles, for example, six year cycles. If businesses and
professionals are required to maintain insurance and records for an indefinite
period of time, with no cut-off point, these maintenance costs will probably
increase as opposed to the cost of maintaining records and insurance coverage
for a set period of time.
·
Judgmental reasons: cultural values change, conduct which may have been
acceptable in the past may no longer be acceptable today. It may be difficult
for a judge and/or jury to determine what may or may not have been reasonable.
3.14
The New Zealand Law
Commission summarised these principles generally:
“Memories can
dim. Witnesses can die or disappear. Records can be disposed of. Changes (in
land values for example, or professional standards) can make it very difficult
for expert witnesses to take their minds back to what the situation was some
years previously. It can be difficult or impossible for civil engineers (for
example) to assess the position if land or chattels are no longer available
either in the state they were in at the relevant time or at all.”[335]
3.15
Thus, the longer the
limitation period, the greater the risk of injustice to the parties involved.
This then affects the integrity of the right to a fair trial. Ultimate
limitation periods reduce the risk of injustice to defendants, and protect the
right to a fair trial within a reasonable time.
3.16
In the Commission’s
view, any proposed reform of the system of limitations must be clear and
comprehensible. Introducing a basic limitation period commencing from the date
of knowledge of the claimant, and an ultimate limitation period commencing from
the date of the act or omission giving rise to the cause of action, both of
general application to the common law actions discussed in this Report, would
greatly streamline limitations law.
3.17
The ultimate limitation
period works to complement the effects of the basic limitation period. If a
defendant could be perpetually subject to a claim given that the basic
limitation period only runs from the date of the claimant’s discovery of their
claim, the ultimate limitation period is required to ensure that the original
objectives of limitation periods are met, that is, that legal actions be
brought within a reasonable period of time such that people are not subject to
an indefinite liability. As paraphrased by the Ontario Law Reform Commission:
“Lawsuits
should be brought within a reasonable time. This is the policy behind
limitation statutes. These laws are designed to prevent persons from beginning
actions once that reasonable time has passed. Underlying the policy is a
recognition that it is not fair that an individual should be subject
indefinitely to the threat of being sued over a particular matter. Nor is it in
the interests of the community that disputes should be capable of dragging on
interminably.” [336]
3.18
The Commission recommends the introduction of a uniform ultimate
limitation period, which would apply to the common law actions as defined in
this Report.
3.19
The length of an
ultimate limitation period must be chosen carefully in order to balance the
needs of the plaintiff and the defendant. It must be long enough to ensure that
it does not rule out most claims before they become discoverable, however, it
must also not be so long as to adversely impact insurance costs.
3.20
In general, the
ultimate limitation periods enacted in other jurisdictions have been of 10, 15,
or 30 years’ duration. The following are some examples.
Jurisdiction |
Application |
Length |
England and Wales |
Latent Damage |
15 years[337] |
Defective products |
10 years[338] |
|
Manitoba |
Civil actions, generally |
30 years[339] |
New South Wales
|
Civil actions, generally |
30 years[340] |
Personal Injuries |
12 years[341] |
|
Victoria |
Personal Injuries |
12 years[342] |
Australian Capital Territory |
Latent Damage |
15 years[343] |
Western Australia |
Civil actions in which the defendant is in a close relationship with the claimant and the claimant has a mental disability |
30 years[344] |
New Zealand |
Civil actions, generally |
15 years[345] |
Alberta |
Civil actions, generally |
10 years[346] |
Ontario |
Civil actions, generally |
15 years[347] |
Saskatchewan |
Civil actions, generally |
15 years[348] |
British Columbia |
Civil actions, generally |
30 years[349] |
|
Certain actions against medical professionals |
6 years[350] |
Jurisdiction |
Application |
Length |
New Brunswick |
Civil actions, generally |
15 years[351] |
Uniform Law Conference Canada |
Civil actions, generally |
15 years[352] |
3.21
The Commission
considered the approaches taken by some of the above jurisdictions in further
detail in the Consultation Paper.[353]
Some of the main observations can be summarised as follows;
i)
Alberta: In 1986 the Alberta Institute recommended that an ultimate
limitation period of 10 years ‘after the claim arose’ be introduced. It felt
that “within ten years after the occurrence of the events on which the
overwhelming majority of claims are based, these claims will have been either
abandoned, settled, or become subject to a limitations defence under the
discovery rule.”[354]
The Institute’s Report in 1989 recommended a 15 year period instead as it felt
that a 10 year period was “too short and would operate unfairly against
claimants.”[355]
Nonetheless, the Alberta Legislature favoured a 10 year ultimate limitation
period in the limitations legislation when enacting the recommendations in
1996.[356]The
Uniform Law Conference of Canada recommended a 15 year period[357],
and this was also introduced in Ontario[358] and Saskatchewan[359].
ii)
New Zealand: The New
Zealand Law Commission (NZLC) recommended the introduction of a 10 year
ultimate limitation period in 2001. They stated that arriving at “an
appropriate long-stop date cannot be a matter of exactitude” and for
consistency purposes they decided to “recommend the adoption of the Building Act’s
10 years.” [360] An earlier report recommended an ultimate limitation period of 15 years
and it was this time period that the NZLC eventually favoured.[361]
Thus, in 2007, the NZLC changed its recommendation to a 15 year long-stop
period.[362]
iii)
British Columbia:
Currently a 30 year ultimate limitation period applies to most claims in
British Columbia.[363] The
British Columbia Law Reform Commission in 1990 recommended the reduction of the
30 year period to 10 years.[364] Its
successor - the British Columbia Law Institute - reiterated this recommendation
in 2001, stating that the 30 year period is “far too long”.[365]
It also noted:
“The 30 year
ULP imposes significant expenses on defendants with regard to maintaining
records, evidence and insurance until the period has been exhausted. Higher
costs in the provision of goods and services form part of the overhead that are
typically passed on to clients through increased prices. [...] In some cases
access to protective insurance is elusive as a professional person may be
susceptible to liability long after retirement, but may not be able to obtain
insurance coverage or may only be able to do so at great expense.”[366]
The British Columbia Attorney General
issued a white paper on this matter of reforming the law of limitations, and
recommended the ultimate limitation period be reduced from 30 years to either
10 or 15 years.[367] It made
reference to these reports of the British Columbia Law Institute,[368]
and in particular it noted that the Institute had stated that the “uncertainty
inherent in such a lengthy period weakens the limitations system, while the
eventuality for which it provides is unlikely to materialize in all but a
minority of cases.”[369]
3.22
In the Consultation
Paper on Actions Arising from the Non-Sexual Abuse of Children, the
Commission invited submissions on two options for an ultimate limitation
period: either a fixed limitation period of 12 years subject to the extension
by the courts for up to three years running from the age of majority or a fixed
limitation period of 15 years running from the age of majority (18 years of
age).
3.23
In its Consultation
Paper relating to claims in contract and tort in respect of latent damage, the
Commission recommended that a period of 15 years would be preferable to 10
years.
“[A] period of
ten years is insufficient to cover many building cases, and in cases of
professional advice, such as where a defective will or conveyance is at issue,
the period is certainly too short.”[370]
3.24
Following consultation,
however, the Commission altered its view in the subsequent Report, and favoured
a 10 year long-stop.[371] This
followed recommendations made at a colloquium that the ultimate limitation
period should not be 15 years long, based on the evidentiary difficulties
experienced after a long lapse of time, and increased insurance costs. The
Commission was of the view that “the advantage of 10 years is that it is consistent
with: the growing trend in the construction sector to take out ten year
insurance over, the legislation on Product Liability, and the HomeBond
guarantee scheme.”[372] The
Commission was also influenced by the fact that professional indemnity
insurance must be maintained for a run off period of six years.[373]
Studies carried out in Ireland, Germany and France indicated that the majority
of latent defects manifest themselves within 10 years after accrual.[374]
3.25
As against this
approach, it must be noted that the majority of jurisdictions seem to favour
the slightly longer ultimate limitation period of 15 years duration.
3.26
The New Zealand Law
Commission had initially also taken a similar view when recommending a 10 year
ultimate limitation period in its report in 2001, which was based on the 10
year periods in its Building Act at the time.[375]
By 2007, it had changed its recommendation to 15 years on the basis that this
would be a more appropriate length of time. It stated that there “is no
absolute right answer. It is a matter of striking a balance between plaintiff
and defendant.”[376]
3.27
The Commission is of
the view that 15 years would be the preferable length in terms of striking a
balance between ensuring the plaintiff has adequate time in which to take
advice, prepare medical reports, and commence their proceedings, and also
without requiring the defendant to wait a particularly protracted length of
time before acquiring some certainty and repose with the conclusion of an
ultimate limitation period which is reasonable in length.
3.28
After careful
consideration of the analysis of the approach of other jurisdictions, and in
light of the Commission’s previous analysis and recommendations in this regard,
the Commission is of the view that the ultimate limitation period should be 15
years duration.
3.29
The Commission is of
the view that 10 years would be too short in duration to provide claimants with
adequate time to commence proceedings. A longer ultimate limitation period is
likely to have the effect of barring plaintiffs from initiating proceedings in
circumstances where plaintiffs are relying on a basic limitation period running
from their date of knowledge.
3.30
The Commission also
considers it notable that the majority of jurisdictions applying an ultimate
limitation period have opted for 15 years.
3.31
The Commission recommends the introduction an ultimate limitation period
of 15 years duration.
3.32
There has been some
divergence in approach in other jurisdictions in relation to setting the
starting date of an ultimate limitation period. The Consultation Paper set out
examples of these approaches in the following chart.
Jurisdiction |
Running from: |
Alberta Civil Actions, generally |
Date on which the claim arose.[377] Although this would appear to suggest that the start date is the date of accrual, in reality it is the date of the act or omission giving rise to the claim which is the start date for the majority of civil actions. The Alberta Model is discussed below. |
Australian Capital Territory Latent Damage |
Date of the act or omission that gave rise to the cause of action.[378] |
British Columbia Civil actions, generally |
Date on accrual (the date on which the right to bring an action arose).[379] |
England and Wales Latent Damage |
Date of the last act or omission of negligence.[380] |
England and Wales Defective products |
Date on which product was last supplied.[381] |
Manitoba Civil actions, generally |
Date of the acts or omissions that gave rise to the cause of action.[382] This has been interpreted by the Manitoba Court of Appeal as meaning the date of accrual.[383] |
New South Wales (civil actions generally) |
Date from which the limitation period ran (as fixed under Part II of the Limitation Act 1969).[384] |
Jurisdiction |
Running from: |
New South Wales Personal Injuries (excluding cases of wrongful death or personal injury in which the court has made an order extending the limitation period in circumstances where the court is satisfied that there is an element of latent injury involved.) |
Date of the act or omission that gave rise to the cause of action.[385]
|
Ontario Civil actions, generally |
Day on which the act or omission on which the claim is based took place.[386] |
Saskatchewan Civil actions, generally |
Day on which the act or omission on which the claim is based took place.[387] |
New Brunswick Civil actions, generally |
Day on which the act or omission on which the claim is based took place.[388] |
Victoria Personal Injuries |
Date of the act or omission alleged to have resulted in the death or personal injury with which the action is concerned.[389] |
Uniform Law Conference Canada 2005 Civil actions, generally |
Date of the act or omission that gave rise to the cause of action.[390] |
Western Australia Civil actions in which the defendant is in a close relationship with the claimant and the claimant has a mental disability |
Date of Accrual.[391] |
New Zealand Civil actions, generally |
Date of the act or omission on which the claim is based.[392] |
3.33
In order for a
long-stop limitation period to provide certainty, its start date must be easily
ascertainable. It is clear that the majority of jurisdictions, as listed in the
above chart, have not favoured the approach of using the ‘accrual date’ as the
start date. This is due to the nature of the accrual rule. “A cause of action
does not accrue until every element of the cause of action is present.”[393] This means that different types of action accrue at
different times, therefore using this date as the start date would not lead to
greater consistency and certainty in the application of an ultimate limitation period.
Some of the models for reform considered by the Commission are summarised
below.
3.34
In its 1986 Report, the
Alberta Institute recommended that the ultimate limitation period should
generally run from the date of accrual of the relevant cause of action. It
stated that in order to achieve the objective of the ultimate limitation period
as a “provision of repose, the ultimate limitation period must begin when a
person did, or failed to do, something.”[394]
This start date was discussed and analysed in detail in the 1986 Report, and it
is apparent that where it was possible, the intended start date would consist
simply of the date of the act or omission giving rise to the cause of action.
The emphasis was placed on the passing of time after the occurrence of the
events which give rise to the claim.
“By the time
that ten years have passed after the occurrence of the events on which a claim
is based, we believe that the evidence of the true facts will have so
deteriorated that it will not be sufficiently complete and reliable to support
a fair judicial decision.” [395]
3.35
The recommendation
stated that “unless a claim subject to this Act is brought within ten
years after the claim arose, the defendant, upon pleading this Act as a
defence, is entitled to immunity from liability under the claim.”[396]
Section 3(1)(b) of the Limitation Act RSA 2000 implemented this recommendation stating that a
limitation period runs for ‘10 years after the claim arose’.
3.36
However, the Alberta
Institute recognised that, although most claims will naturally accrue at the
time of the defendant’s conduct, by his act or omission, some claims will
accrue at a different time. To combat this difficulty, the Institute identified
five types of claims for which the accrual rule had proved particularly
complicated to interpret and apply, and set out specific provisions stating
when the ultimate limitation period should being for each of these claims.
Thus, special rules were formulated for the start date of an ultimate
limitation period for specified actions as follows:
(i)
Claims resulting from a continuing course of conduct or a series of
related acts - the recommended long-stop start date was the date on which the
“conduct terminated, or the last act or omission occurred”[397];
(ii)
Claims based on a breach of duty of care - the recommended long-stop
start date was the date on which the “when the careless conduct occurred”[398];
(iii) Fatal
injuries actions - the recommended long-stop start date was the date on which
the conduct which caused the death occurred”[399];
(iv) Claims
based on a demand obligation - the recommended long-stop start date was the
date on which the “default in performance occurred after a demand for
performance was made”[400];
(v)
Claims for contribution - the recommended long-stop start date was the
date “when the claimant for contribution was made a defendant under, or incurred
liability through the settlement, of a claim seeking to impose liability upon
which the claim for contribution could be based.”[401]
3.37
Section 3(3) of the Limitation Act RSA 2000 followed the Institute’s recommendations in
respect of these special rules.
“(a) a claim or
any number of claims based on any number of breaches of duty, resulting from a
continuing course of conduct or a series of related acts or omissions, arises
when the conduct terminates or the last act or omission occurs;
(b) a claim
based on a breach of a duty arises when the conduct, act or omission occurs;
(c) a claim
based on a demand obligation arises when a default in performance occurs after
a demand for performance is made;
(d) a claim in
respect of a proceeding under the Fatal Accidents Act arises when the conduct
that causes the death, on which the claim is based, occurs;
(e) a claim for
contribution arises when the claimant for contribution is made a defendant in
respect of, or incurs a liability through the settlement of, a claim seeking to
impose a liability on which the claim for contribution can be based, whichever
first occurs;
(f) a claim for
a remedial order for the recovery of possession of real property arises when
the claimant is dispossessed of the real property.”
3.38
Thus the
recommendations of the Institute and the subsequent legislative provisions
regarding the commencement of the ultimate limitation period were constructed
in a manner to ensure that the date on which “the claim arose” consists of the
date of the act or omission giving rise to the claim. In circumstances where
this date is difficult to identify, special rules apply setting out the
relevant start-date.
3.39
In 1988, the New
Zealand Law Commission recommended an overhaul of the limitations system with
the introduction of basic and ultimate limitation periods (3 years and 15 years
in duration respectively), both commencing on the date of the defendant’s act
or omission.[402] It
favoured this approach as it felt it added clarity and certainty to a limitations
regime. “In most cases, the date of the ‘act or omission’ will be clear. It
refers to that conduct of the defendant of which the claimant complains.”[403]
3.40
The New Zealand Law
Commission did acknowledge that there could be some difficulties with
continuing acts or omissions, and provided special provisions dealing with
claims based on demands, conversion, contribution, indemnity and certain
intellectual property claims.[404]
3.41
The recommendations of
this 1988 Report were not acted upon, and so it appeared that this ‘root and
branch’ approach of overhauling the limitations system was not the preferred
means of reform by the legislature. In 2000, the New Zealand Law Commission
published a shorter Report, “confining our recommendations to urgently needed
changes expressed as amendments to the existing statute.”[405]
The Commission recommended the introduction of an ‘ultimate cut-off point’ 10
years “after the date on which the cause of action accrued.”[406]
3.42
A later Miscellaneous
Paper commissioned by the New Zealand Law Commission in 2007 recommended an
ultimate period of 15 years to start on “the date of the act or omission on
which the claim is based.”[407] It was
this recommendation which was favoured by the New Zealand Parliament as regards
a start date for the ultimate limitation period enacted in 2010, that is: “15
years after the date of the act or omission on which the claim is based (the
claim's longstop period).”[408]
3.43
The Miscellaneous Paper
considered the previous recommendation of 2000 of a 10 year ultimate limitation
period starting on the date of accrual. It felt that as a cause of action in
negligence or nuisance does not accrue until damage occurs, this meant that
there could be a long period of time between the date of the act or omission
and the actual damage, and therefore, a long interval of time between the act
or omission on which the claim is based and the actual commencement of the
ultimate limitation period.[409] The more
certain start date of the date of the act or omission of the defendant was
preferred, as the “start date should be objective and ascertainable.”
3.44
The Law Commission for
England and Wales has recommended that the ultimate limitation period should
generally run from the date of accrual, with an alternative start date of the
date of the act or omission (giving rise to the cause of action) for actions in
tort and breach of statutory duty where loss is an essential element of the
cause of action.
3.45
In its 1998
Consultation Paper on the Limitation of Actions, the Law Commission
provisionally recommended that the ultimate limitation period for all causes of
action should run from the date of the act or omission giving rise to the cause
of action. It acknowledged that this starting point could possibly cause
hardship to plaintiffs where the damage was incurred at a time after the date of
the act or omission, for example where a disease is contracted as a result of
employment.[410]
Nevertheless, it considered that as the discoverability rule for the
provisionally recommended basic limitation period swings the balance in favour
of the plaintiff, “the interests of defendants should be preferred over those
of plaintiffs in fixing the starting point for the long-stop limitation
period.”
3.46
In choosing this start
point, the Law Commission was influenced by the fact that the ultimate
limitation period that currently applies for latent damage claims in England
and Wales starts from the date of the act or omission that is alleged to
constitute negligence. Also, the ultimate limitation period for actions under
the Consumer Protection Act 1987 starts to run from the date of the act
giving rise to the claim.[411]
3.47
The Law Commission was
also of the view that the accrual test could “reintroduce the complexity and
incoherence caused by the different rules on the date of accrual for different
causes of action.”[412] It also
was of the view that using an accrual start date could destroy the purpose of
the proposed ultimate limitation period as defendants would not be protected if
the cause of action did not accrue until many years after the date of the act
or omission giving rise to the cause of action.[413]
3.48
In its 2001 Report[414],
the Law Commission noted that a “substantial majority of consultees” supported
these proposals.[415] It stated:
“The date of the act or omission giving
rise to the cause of action has the advantage that it is easier to ascertain
than the date on which the claimant suffers loss. The disadvantage is that in
some cases loss is an essential element of the cause of action and there is
therefore no cause of action until the claimant has suffered loss, which may be
some time after the date of the act or omission giving rise to the cause of
action.”[416]
3.49
The Law Commission
sought to address a concern which arose during the consultation period; the
difficulty in ascertaining the date of the act or omission “giving rise” to the
cause of action where there have been a number of acts or omissions by the
defendant. To minimise difficulties in this regard, it recommended that the
ultimate limitation period should, in general, run from the date of the accrual
of the cause of action:
“When loss is
not an essential element of the cause of action, the date on which the cause of
action accrues will in most cases be the date of the act or omission which
gives rise to the cause of action. The courts will, however, be able to draw on
the guidance of the current law as to when a cause of action accrues to
identify this date.”[417]
3.50
The Law Commission,
however, retained an exception to the general rule for those causes of action
in tort and breach of statutory duty where loss is an essential element of the
cause of action. In such circumstances, the starting date for the long-stop
will remain the date of the act or omission giving rise to the cause of action.[418]
3.51
In 2001, the Commission
recommended[419] special
treatment of construction claims. It proposed that a long-stop period be
introduced for latent damage claims (excluding personal injury claims) for a
period of 10 years, running from the date of accrual of the cause of actiont.[420]
However, it proposed a special start date for construction claims due to the
“frequency of the disputes arising in the construction industry and because of
the difficulties in insuring against latent defects”.[421]
The Commission was of the view that the starting point of a long-stop period
for such claims should be the date of practical or purported completion, that
is, the date of the issue of the certificate of completion.[422]
These recommendations were not implemented.
3.52
In relation to
construction cases, the Law Commission for England and Wales also discussed a
special starting point for a long-stop in this area. It was proposed that the
date of the act or omission could be defined as the ‘date of completion’ of the
construction works.
3.53
In the Consultation
Paper, the Commission summarised the analysis undertaken by the Law Commission
of England and Wales as follows[423]:
“The Law
Commission observed that in major construction projects, a negligent act that
causes damage may take place a considerable time before the building work is
completed. It will often be even longer before a plaintiff has the opportunity
to uncover the damage. There may be hardship to the plaintiff if the ultimate
period runs from the date of the negligent act rather than the date of accrual
(that is, the date on which the damage is incurred). In England and Wales,
there is a statutory duty to build dwellings properly.[424] The basic limitation
period for actions
in respect of a breach of this duty accrues at the time
when the dwelling was completed. If that person carries out further work after
that time to rectify the work already done, actions in respect of the further
work accrue at the time when the further work was finished... The Law
Commission agreed with the Law Revision Committee, however, that there would be
problems of demarcation if a special limitation provision was introduced for a
particular industry. Moreover, this would detract from the uniformity of the
proposed core regime.”
3.54
The Law Commission
decided against introducing a special start date as it considered that it would
“wrong to ring-fence a particular industry”.[425]
Ultimately, the Commission was “not convinced that the additional complexity
which would be caused by a separate regime for construction-related claims
would be justified by the benefits it would bring.”[426]
3.55
The Law Reform
Commission of Manitoba considered limitations law reform in 2010. The Manitoba
limitation legislation dates from 1931, and although amended over the years,
the Manitoba Commission considered that “it is in need of simplification and
modernisation.”[427]
3.56
The current Manitoba
Act contains an ultimate limitation period of 30 years from the occurrence of
the acts or omissions that give rise to the cause of action.[428]
Under section 7(5), there is also an ultimate limitation period applicable to
actions taken by a person with a disability (or an action brought on the behalf
of a person with a disability) “after the expiration of 30 years after the
occurrence of the act or omission that gave rise to the cause of action”.
3.57
The Manitoba Law Reform
Commission recommended that a “general ultimate limitations running from the
act or omission giving rise to the claim occurred, rather than from the date
the damage was suffered” be introduced, as it was of the view that such an
ultimate limitation is “necessary and desirable.”[429]
3.58
At present, the
ultimate limitation period runs for a period of 30 years from the date of
accrual of the action.[430] The
British Columbia Law Institute favoured a move away from this accrual model to
using a start date of the date of the act or omission giving rise to the cause
of action. It supported its view as follows:
“The advantages
of this approach are threefold. It avoids the difficulties of having to
determine when a plaintiff has suffered damage for those causes of action where
damage is an essential element. Consequently, the maximum duration of the
defendant’s liability is more easily ascertainable than under the accrual
system and this creates greater certainty for the parties involved. The
defendant is protected from stale claims in cases where the date of accrual
occurs many years after the date of the act or omission that constitutes a
breach of duty. Moreover, this date provides a common starting point for the
ULP with regard to claims in both tort and contract.”[431]
3.59
The British Columbia
Law Institute did acknowledge that in certain cases, using this start date
could lead to problems where the crucial element of the cause of action is the
damage suffered, thus, “where damage is an essential element of the cause of
action...time could run with respect to a cause of action, and perhaps
extinguish it, before the plaintiff has any legal right to bring an action.”[432]
The Institute was of the view that this “anomaly” would only occur in “a few
cases”, and favoured the start date of the date of the act or omission that
constitutes a breach of duty in order to bring “far greater certainty,
predictability and simplicity to limitations law than the existing accrual
scheme.”[433]
3.60
The Ministry of
Attorney General of British Columbia published a White Paper on the subject of Limitation
Act Reform: Finding the Balance in September 2010. It too favoured this
approach of using “act or omission model of commencement” rather than the date
of accrual. It also stated that the majority of respondents to its Green Paper[434]
on this topic were also in favour of this model.[435]
3.61
The White Paper stated
that though some respondents requested that there be different commencement
dates based on the type of industry-related claim, this was felt to be “contrary
to the reform goals of creating simplicity and internal consistency within the
new Act.” However, it recognised that not all claims would easily fit in the
act or omission commencement model and so it proposed that this model be
adopted with “a provision that sets out when the ultimate limitation period
starts to run for certain types of claims that do not fit easily within the
model”, for example, continuous acts or omissions and series of acts or
omissions.[436]
3.62
The Commission remains
of the view that running the ultimate limitation period from the date of the
act or omission is the preferable option. There are many difficulties
associated with the interpretation of the accrual test, and using the date of
the act or omission commencement model would complement the running of the
basic limitation period from the date of knowledge of the plaintiff.
3.63
The Commission
recommends that the ultimate limitation period should run from the date of the
act or omission giving rise to the cause of action.
3.64
The Commission
considers that special consideration ought to be given to the application of
the ultimate limitation period to personal injuries actions.
3.65
Case law in all
jurisdictions reveals that many forms of personal injuries are latent in
nature, and can lay dormant for many years due to the nature of the injuries.
To impose an ultimate limitation period on such actions may be unduly harsh for
people who do not, and cannot, realise that they have suffered an injury until
after the expiration of the limitation period given the latent nature of the
injuries suffered.
3.66
Notwithstanding these
concerns, there is also the need to safeguard against prosecutions of civil
actions taking place long after the act or omission which gave rise to the
cause of action. Such prosecutions carry an inherent risk of unfairness to
defendants. The Courts are more than aware of the threat such prosecutions can
pose to the administration of justice.
3.67
The defendant’s right
to a speedy trial is one aspect of the personal constitutional right to fair
procedures, which is protected under Article 40.3.1° of the Constitution. The
Courts have an inherent jurisdiction to preserve the process of the
administration of justice and safeguard the right to fair procedures; to this
end, the Courts may strike out claims for want of prosecution, for inexcusable
and inordinate delay, or to protect against prejudice to the defendant, even in
circumstances where the relevant limitation period has not yet expired. As
Peart J observed in Byrne v Minister for Defence:[437]
“I believe it
would be proper to consider what interests are there to be considered and
protected by the court’s inherent jurisdiction to dismiss a claim on the
grounds of inordinate and inexcusable delay. Certainly there are competing
interests. There is first of all the plaintiff’s undoubted right of access to
the courts. There is also the defendant’s right to an expeditious hearing of
any claim brought against him and to finality. Linked to this consideration is
the defendant’s right not to be adversely prejudiced in such defence by delay
for which he bears no responsibility.”
3.68
In the past, the
Commission has been of the view that the long-stop should not apply to personal
injuries,[438] and stated
that “in cases of personal injury, the right of the plaintiff should be
ascribed a greater weight than that of a defendant - at least as an initial
point of departure.”[439]
3.69
In its Report The
Statute of Limitations: Claims in respect of Latent Personal Injuries, the
Commission recommended that a discoverability test be introduced for personal
injuries actions. At that point in 1987, under section 11(2)(b) of the Statute
of Limitations 1957, a three year limitation period applied to personal
injuries actions from the date of accrual. This was interpreted as meaning that
a cause of action accrued as soon as a wrongful act caused personal injury,
even when the injury was unknown to and could not be discovered by the
sufferer.[440] In Cahill
v Sutton[441],
it had been argued that the imposition of a time limit having this effect was
unconstitutional. Henchy J stated that the court was unable to rule on the validity
of the claim made against the constitutionality of the relevant section of the
1957 Statute, but nonetheless he observed that the matter merited “urgent
consideration”.[442] The matter
of latent personal injuries and the 1957 Statute was eventually referred to the
Commission. The resulting 1987 Report led to the enactment in the Statute of
Limitations (Amendment) Act 1991 of the ‘date of knowledge’ test for
personal injuries actions.[443]
3.70
In the 1987 Report, the
Commission was strongly of the view that the introduction of a long-stop would
undermine “the overriding objective of our other objectives - to endeavour to
prevent injustice arising from the absence of a ‘discoverability’ rule - could
be frustrated in at least some cases if such a provision were to be
introduced.” It considered that “however long or short the ‘long-stop’ period
ultimately settled on may be ,it must of its nature be crude and arbitrary and
have no regard to the requirements of justice as they arise in individual
cases.” This statement must be looked at in the context of the primary focus of
the Commission in the 1987 Report, which was that of latent personal injuries
actions.
3.71
The Consultation Paper
considered the approach of other jurisdictions to personal injuries actions and
long-stop provisions, including Western Australia, England and Wales and New
Zealand.[444]
3.72
The Law Reform
Commission of Western Australia in considering the application of a long-stop
provision to personal injuries actions noted that the only Australian
jurisdiction to apply such a provision was New South Wales, and that it was of
limited application.[445]
3.73
A number of Canadian
provinces apply an ultimate limitation period (of varying lengths) to personal
injuries actions in their limitations legislation; including Ontario[446],
Saskatchewan[447], Alberta[448],
British Columbia[449] and
Manitoba[450]. The
Uniform Law Conference of Canada in its model Uniform Limitations Act also recommends
that the ultimate limitation period apply to the majority of actions, including
personal injuries actions.[451]
3.74
The Law Commission of
England and Wales was of the view that their recommended ultimate limitation
period of 10 years should not apply to personal injuries claims.[452]
3.75
Previously, in its
Consultation Paper, the Law Commission provisionally recommended that the
proposed core regime should include a long-stop limitation period of 10 years
applicable to all claims other than personal injury claims, and that personal
injury claims should be subject to a long-stop limitation period of 30 years.[453]
3.76
In the 2001 Report, the
Law Commission considered that in relation to “claims other than personal
injuries”, there could be a “risk of serious injustice to the defendant” in
circumstances where a claim is brought after many years. It also stated that
the use of a long-stop “compensates for the loss of certainty which is inherent
in the adoption of a limitation regime dependent on the date of knowledge of
the relevant facts by the claimant.”[454]
Nevertheless, the Law Commission was of the view that different considerations
applied to personal injuries claims and that despite the arguments it made in
favour of the long-stop generally, the Law Commission “was minded to exempt
such claims from the long-stop period”. Its provisional proposal that a 30-year
long-stop apply was rejected by “around fifty-five per cent of consultees”. It
stated that the major concern was in relation to latent injury personal injuries
actions, particularly asbestos-related diseases such as mesothelioma and
victims of sexual abuse.[455] It stated
that a long-stop limitation period of thirty years would prevent most claimants
suffering from mesothelioma from recovering damages for that disease. Also,
many victims of sexual abuse “frequently need time to recover sufficiently from
the trauma consequent upon the abuse to be able to contemplate bringing a
claim.”[456]
3.77
The Law Commission’s
final recommendation was that “no long-stop limitation period should be applied
to claims in respect of personal injuries”.[457]
3.78
The approach adopted by
New Zealand is worthy of mention. In 2007 the New Zealand Law Commission did
not recommend exempting personal injuries actions from the application of an
ultimate limitation period. Originally, in its Report of 2001, it considered
that “claims for exemplary damages by victims of child abuse” should be
included in a special disability provision which would stop time running
against an intending plaintiff with such a disability.
“It seems
entirely fair to both plaintiffs and defendants that the statute should make it
clear that its definition of disability covers the situation where the abuse
complained of has been causative of such absence of resolution as has left the
plaintiff out of time for bringing a claim.”[458]
3.79
However, in a
Miscellaneous Paper prepared for the New Zealand Law Commission in 2007, it was
recommended that no special provision be made to introduce a special disability
provision in cases of child abuse, as had been proposed in the 2001 Report. It
was recommended that the ultimate limitation period should apply to such
actions with only the general exceptions of minority and/or incapacity allowing
for any extension of the ultimate limitation period.
“It is
recommended that abuse claims be specially provided for (simply to ensure the
limitation rules are clear). It is recommended that the primary period, the
same as for bodily injury, be two years which will run from the date of the act
or omission on which the claim is based, and that the knowledge period will
apply up to the end of the fifteen year ultimate period. If either (or both)
the minority disability period and the incapacity disability period apply, time
will be extended in accordance with the recommendations pertaining to them.
There will be no other ground for extending the primary or the ultimate
periods.”[459]
3.80
Although the New
Zealand Law Commission ultimately did not favour exempting any personal
injuries actions from the ambit of the ultimate limitation period, the Justice
and Electoral Committee was of a slightly different view in its review of the Limitation
Bill 2009. The Committee recommended certain changes to the text,
which were later adopted and enacted in the Limitation Act 2010. The
Committee recommended that a judicial discretion be retained to allow the
courts to grant relief in cases involving child abuse (sexual and/or
non-sexual), or claims of gradual process, disease, or infection “even when a
limitation defence had been or could be established against the claim”. [460] Thus, the court could still grant
relief to a claimant in such a case, though the case is statute barred by the
expiry of the ultimate limitation period.
“The specified
court or tribunal may, if it thinks it just to do so on an application made to
it for the purpose, order that monetary relief may be granted in respect of the
claim as if no defence under this Part applies to it.”[461]
3.81
The 2010 Act goes on to
set out a list of factors which the court “must take into account” in coming to
its decision about whether or not to grant this relief to the statute-barred
claimant. These factors include:
(a)
any hardship that would
be caused to the defendant if the order were made, and any hardship caused to
the claimant if the order were not made;
(b)
the length of and
reasons for the delay on the claimant’s part;
(c)
the effects or likely
effects of the delay on the defendants ability to defend the claim, and the
cogency of the evidence offered or likely to be offered by the claimant or the
defendant;
(d)
the defendant’s conduct
on and after the date of the act or omission on which the claim is based;
(e)
the extent to which
prompt and reasonable steps were taken by or on behalf of the claimant;
(f)
any steps taken by
claimant to obtain relevant medical legal or other expert advice and the nature
of any such expert advice received; and
(g)
any other matters the
court considers relevant.[462]
3.82
Thus the New Zealand
legislature in its Limitation Act 2010 adopted the approach of applying
the ultimate limitation period generally to personal injuries claims but with
two narrow exceptions to this general rule, the parameters of which are clearly
defined by way of legislative provision.
3.83
The Commission remains
of the view that the ultimate limitation period should apply to personal
injuries actions.[463] There is
naturally some concern about the application of an ultimate limitation period
to ‘special cases’ of personal injuries, and the possible hardship its strict
application could cause claimants. Two of the prevailing aims in reforming
limitations legislation are; firstly, to provide for a more precise and
coherent system which is accessible and comprehensible, and secondly, to ensure
that a balance is struck between the plaintiff’s right of access to justice and
the defendant’s right to fair procedure. In order to best meet both of these
objectives, the reforms cannot consist entirely of a stringent and narrow
adherence to the proposed limitation periods no matter what the type of action
is involved.
3.84
Nonetheless, the
Commission does not consider that the overall scheme of proposed reform should
be sacrificed to protect the small minority of special interests or special
cases with the introduction of various exceptions for certain categories of
claims. The general principles underlying the reform do not have to be
distorted by attempting to accommodate each ‘special interests’.
3.85
The Commission is of
the view that such concerns relating to the application of an ultimate
limitation period to personal injuries action can be dealt with by the
introduction of a statutory discretion. This is discussed in more detail in
Chapter 4, below.
3.86
The Commission recommends that the ultimate limitation period should
apply to personal injuries actions.
4
4.01
In this Chapter, the Commission examines how exceptional instances are
to be dealt with in the proposed core limitations regime. Virtually all
limitations laws (including the traditional type of which the Statute of
Limitations 1957 is an example) include at least some provision for these
unusual and exceptional circumstances. In the Statute of Limitations 1957
as enacted, this was done through a series of provisions dealing with
“postponement” of the limitation periods for a variety of specified reasons,
such as the plaintiff’s “disability” (being under 18 or by virtue of
intellectual disability). The introduction of a “discoverability” rule in the Statute
of Limitations (Amendment) Act 1991 was intended to deal with another type
of exceptional case, namely, where the plaintiff is not in a position to
discover their cause of action until after a limitation period had passed
because, for example, the consequences of exposure to asbestos fibres (or
excessive noise) can be symptomless for up to 40 years.
4.02
These exceptional circumstances often mean that quite old cases could
still be litigated, and this therefore raises the priority to be given to, on
the one hand, the plaintiff’s right to litigate a claim and, on the other, the
defendant’s right to be presented with a claim within a reasonable period of
time. In this respect, the courts have also developed, independently of the
limitations legislation, various approaches which allow them to determine,
using a principles-based discretion, whether a claim should, or should not, be
allowed to proceed.
4.03
The Commission begins in Part B by examining the various
discretion-based principles developed by the courts to determine whether an old
claim should be allowed to proceed. This includes the discretion to dismiss a
civil claim on grounds of delay even in cases where the limitation period has
not yet expired, or, separately, as being an abuse of the court process. The
impact of the European Convention on Human Rights Act 2003 is also
considered. In Part C, the Commission considers whether a specific statutory
discretion to “postpone” or otherwise extend the “long-stop” ultimate
limitation period is required in the Commission’s proposed limitations
legislation. The Commission discusses whether such a limited “safety valve” provision
would operate by reference to a limited discretion for “exceptional
circumstances” or by reference to specific instances. In Part D, the Commission
then considers whether the existing postponement provisions in the Statute
of Limitations 1957 need to be retained.
4.04
As already mentioned,
the courts have an inherent jurisdiction to control their own procedure, and
this includes, for example, the discretion to dismiss a civil claim on grounds
of prejudicial delay even in cases where the limitation period has not yet
expired, or, separately, as being an abuse of the court process. This
form of discretion arises from the obligation of the courts to ensure the
timely administration of justice, derived from Article 34.1 of the Constitution
and also the constitutional right to fair procedures derived from Article
40.3.1°.
4.05
The Commission considers that this inherent jurisdiction protects the
interests of the defendant in striking out claims for want of prosecution where
there has been inordinate and inexcusable delay, even where a limitation period
has not yet expired. Thus, in Ó Domhnaill v Merrick,[464]
the plaintiff had suffered injuries as a result of a road traffic accident at
the age of 3, in 1961. Proceedings were initially struck out as being statute
barred for not having been brought within 3 years of the accident under section
49(2)(ii) of the Statute of Limitations 1957. This section was later
challenged in O’Brien v Keogh[465]
where the Supreme Court held that a minor would be allowed to bring proceedings
within 3 years of reaching majority. As a result, in Ó Domhnaill
proceedings were initiated for a second time in 1977. By 1982, however, no
statement of claim had been delivered by the plaintiff. The defendant applied
to have the action dismissed for want of prosecution.
4.06
In the Supreme Court, Henchy J found the delay was both inordinate and
inexcusable, with no countervailing circumstances to justify the delay. He
noted that “while justice delayed may not always be justice denied, it usually
means justice diminished”.[466] He
considered that it would be “contrary to natural justice and an abuse of the
process of the courts”[467] to allow the claim to continue. He stated that in this case
where the accident had occurred 24 years before the trial; it would put
“justice to the hazard to such an extent that to allow the case to proceed to
trial would be an abrogation of basic fairness.” [468]
4.07
The High Court decision in Donnellan v Westport Textiles Ltd &
Ors[469] applied the principle in Ó Domhnaill. The
plaintiff claimed he was exposed to excessive noise during two separate periods
of employment (as a former member of the Defence Forces for 10 months in 1974,
and as a cone-winder in 1978-1979) and sustained hearing loss as a result. The
proceedings commenced in 2000. In the High Court, Hogan J considered that the
critical point was not whether the matter was statute-barred, but that the
proceedings were instituted some 26 years after the events in question. He
stated that:[470]
“while I am conscious that the plaintiff has, in fact, suffered
some appreciable hearing loss, the post-commencement delays simply compounded a
problem which was inherent from the start, namely, that the 26 year delay
involved in commencing the litigation in the first place was simply too long
for the administration of justice to tolerate, even if the proceedings were
technically within the Statute of Limitations.”
4.08
This type of judicial discretion may, therefore, be used to dismiss
claims which are not statute-barred, and which are still within the limitation
period, but where there has been such delay or such a great lapse of time that
the court considers that it would be unjust to allow the claim to proceed. The
discretion has not, however, been used to overlook the expiry of a limitation
period. To the Commission’s knowledge, an Irish court has not stated that,
where a claim is clearly statute-barred by the expiry of the limitation period,
the court could use its judicial discretion to allow the matter to proceed.
4.09
In Byrne v Minister for Defence and Others[471],
Peart J made an important observation in relation to how this inherent
jurisdiction of the court interacts with the Statute of Limitations, and
how the competing interests of the plaintiff, the defendant and the public,
must be carefully balanced:
“The Court’s jurisdiction to dismiss such an old claim is an
important power in the public interest, regardless of prejudice to the
defendant, yet one which must be used sparingly lest a plaintiff might
unreasonably be deprived of a remedy to which he is entitled. If the court were
never to invoke that power it would send the wrong message, namely that the
courts will tolerate and indulge unreasonable delay in the bringing of claims
where a defendant cannot show prejudice. That consideration must exist
regardless of the existence of a defendant’s right to plead the Statute of
Limitations by way of defence pleading. That statute has the capacity to
protect the defendant’s rights which I have identified, but it serves no
purpose in the protection of the public interest to which I have referred.”[472]
4.10
The Commission also notes that the case law derived from O Domhnaill
v Merrick[473] was
expressly recognised in section 3 of the Statute of Limitations (Amendment)
Act 2000, which provides that nothing in the 2000 Act “shall be construed
as affecting any power of a court to dismiss an action on the ground of there
being such delay between the accrual of the cause of action and the bringing of
the action as, in the interests of justice, would warrant its dismissal.”
4.11
The constitutionally-derived jurisdiction of the court to control its
own procedure can also take the form of dismissal on the grounds of the
proceedings being frivolous and vexatious[474], dismissal due to abuse of process[475],
or dismissal due to failure to observe the Rules of the Superior Courts 1986
in conducting a claim.[476] Shiels summarises
the underlying rationale of the jurisdiction related to abuse of process as
follows:
“Thus the use of the processes of the courts to occasion
unfairness, prejudice or hardship on defendants will justify the strike out of
proceedings. It may be that proceedings are not inconsistent with a literal
application of the rules of court but are, nevertheless, manifestly unfair to a
party before the court or may indeed bring the administration of justice into
disrepute among “right thinking people” (footnote omitted).”[477]
4.12
Most commonly, the abuse of process concept arise in cases involving
frivolous or vexatious proceedings, rather than proceedings involving delay
alone. For example, in MP v Attorney General and Others,[478] the
plaintiff applied, pursuant to section 73 of the Mental Health Act 2001,
for leave to institute proceedings regarding her involuntary detention in 2009.
Judgment had previously been issued on 27 April 2010 in relation to a very
similar application brought by the plaintiff. MacMenamin J was of the view that
the current application was largely repetitious of the earlier set of
proceedings. He stated that a perusal of the chronology of events in these
proceedings clearly indicated that the plaintiff, “whether wittingly or not,
sought to re-ignite proceedings held to be frivolous and vexatious” and that
she had also “engaged in abuse of the court process by repeatedly seeking to
litigate the same matter”.[479]
4.13
MacMenamin J also highlighted that there was a public interest aspect to
litigation, and the use of court time. He relied on the following observations
of Denham J in Bula Ltd (in receivership) v Crowley & Ors:[480]
“There is a constitutional right to access the courts. However,
it is not an absolute right. With that right comes responsibility.
Circumstances may arise where a person loses the right to initiate proceedings.
For example, if there has been an excessive amount of litigation initiated by a
person, or on his behalf, the courts have an inherent jurisdiction, and indeed,
a duty, to review the use of court time. Court time is limited and there is a
duty to use it justly.”[481]
4.14
This qualifying of the right to litigate is at the heart of the delicate
balancing of the plaintiff’s right of access to the courts and the defendant’s
right to be protected from an abuse of this right. As stated by Cooke J in Kenny
v An Bord Pleanála,[482] a citizen “has a constitutional right of access to the
High Court but no entitlement to abuse that right.” In that case, the plaintiff
had previously been the subject of an ‘Isaac Wunder order’ which had the
purpose of restraining the plaintiff from issuing any further proceedings
against certain named parties, one of which included the defendant in this
case. The court refused the plaintiff’s application to institute proceedings
against the defendant on the grounds that the claim was ‘manifestly unfounded
or unstateable’ and so the Isaac Wunder Order remained in place. Cooke J stated
that the purpose of the Isaac Wunder Order was two-fold:
“It safeguards the integrity of that constitutional right by
preventing its abuse by the repeated introduction of unfounded or vexatious
claims against the same party; and secondly, it protects a defendant from being
unjustifiably exposed to unnecessary costs by having to meet unfounded claims
brought by the same litigant.”[483]
4.15
The Commission recommended, in its Report on the Consolidation
and Reform of the Courts Acts,[484]
that the jurisdiction of the courts to restrict this specific type of abuse of
process be placed on a statutory footing. Thus, section 80 of the draft Courts
(Consolidation and Reform) Bill in the Report places on a statutory footing
the existing power of the High Court and the Supreme Court to provide that any
person who, without any reasonable ground, has repeatedly instituted vexatious
legal proceedings in any Court, may not commence, or continue, proceedings in
any Court without the leave of the High Court. As already noted, such a
restriction is currently commonly referred to as an Isaac Wunder Order.[485]
4.16
As noted by Shiels, applying the abuse of process concept to cases
involving delay, and the court’s inherent jurisdiction to dismiss such claims,
has often been “overlooked by the Irish courts in favour of the more principled
test of ‘inordinate and inexcusable’ delay as set out in cases such as, Primor
v Stokes Kennedy Crowley.”[486] The Commission now turns to discuss the test for
considering whether the delay is both inexcusable and inordinate, often called
the Primor test.
4.17
The test applied by the courts in considering a dismissal for want of
prosecution was first set out in detail by the Supreme Court in Primor plc v
Stokes Kennedy Crowley.[487] The Court
set out the following test (the Primor test): whether the delay was
inexcusable and inordinate, and whether such delay affects the balance of
justice (this involves an analysis of issues of prejudice to the plaintiff and
to the defendant).
4.18
In Donnellan v Westport Textiles Ltd & Ors,[488] Hogan J considered two over-lapping strands of case law
dealing with the issue of what the consideration of the balance of justice
entails. Hogan J stated that the first line of case law derives from the
judgment of Henchy J in Ó Domhnaill v Merrick, already discussed.[489]
This line of case law “stresses the inherent duty of the courts arising from
the Constitution to put an end to stale claims in order to ensure the effective
administration of justice and basic fairness of procedures and in order to
secure compliance with the requirements of Article 6 ECHR.”[490]
The second line of authority extends from the judgment of Finlay J in Rainsford
v Limerick Corporation,
but found “its full exposition in the seminal judgment of the Supreme Court in Primor
plc.”[491]
4.19
Hogan J also considered the Supreme Court decision in McBrearty v
North Western Health Board[492] (2010). In McBrearty, the Supreme Court also
analysed the different authorities in the area of dismissal for want of
prosecution, and the courts’ inherent jurisdiction to administer justice. Hogan
J considered that the McBrearty case was of great significance as it
confirmed the primacy of the Primor test while making clear that “the Primor
principles were not to be regarded as exclusive or all-encompassing and,
secondly, it confirmed that the Court’s constitutionality derived inherent
jurisdiction could be exercised even though some elements of the Primor test
had not been established.”[493] Thus it
clarified that “there are, in fact, two separate – albeit overlapping – strands
of jurisprudence in this area.”[494]
Both of these strands appear to be of equal importance in considering whether
the court should exercise its discretion in applying its inherent jurisdiction
to ensure effective administration of justice for the purpose of dismissing a
claim.
4.20
Hogan J also made brief reference to the protection provided by Article
6 of the European Convention on Human Rights which protects this right to a
hearing within a reasonable time in parallel to the principles derived from the
Irish case law.[495]
4.21
Diverging judicial views have emerged in relation to the exact extent of
the impact which the European Convention on Human Rights Act 2003 has
had on this inherent jurisdiction of the court. This issue will be dealt with
in further detail in the following section.
4.22
The protection afforded by the European Convention on Human Rights
(ECHR) was first referred to by Hardiman J in Gilroy v Flynn.[496]
In relation to the court’s inherent jurisdiction to dismiss stale claims, and
the relevant test and principles set out in the seminal Primor case, Hardiman
J noted that the law in this area had undergone significant developments since
the decision in the Primor case in 1996. He stated that there was an
increased awareness on the part of the courts:
“of the unfairness and increased possibility of injustice which
attach to allowing an action which depends on witness testimony to proceed a
considerable time after the cause of action accrued.”[497]
4.23
He also referred to the European Convention on Human Rights Act 2003,
and cases such as McMullen v Ireland,[498] which had the consequence that “the courts, quite
independently of the action or inaction of the parties, have an obligation to
ensure that rights and liabilities, civil or criminal, are determined within a
reasonable time.”[499]
4.24
In W v W,
the High Court considered the issue of delay in tort litigation both from the
point of view of the Statute of Limitations and the European Convention on
Human Rights Act 2003.[500] The
plaintiff claimed that the defendant, her brother, sexually assaulted abused,
assaulted and battered her between 1969 and 1972, from the age of 11.
Proceedings were commenced by way of plenary summons at the end of 2006. The
matter had been ready for a date to be fixed for trial but the plaintiff
contended that she was physically and psychologically unfit to give evidence at
trial at the time and in the future.[501]
The defendant applied for an order dismissing the plaintiff’s claim for want of
prosecution.
4.25
Kearns P held that it would “unfair to the highest degree” to allow the
plaintiff to proceed with her claim, given that the proceedings were in
existence since 2006, and dismissed the plaintiff’s claim on the grounds of
both want of prosecution and the Statute of Limitations.[502]
4.26
Under the Statute of Limitations (Amendment) Act 2000 the period
within which a person can bring a claim in tort arising out of child sexual
abuse can be extended until that person ceases to be under a disability. The
disability is defined as suffering a psychological injury caused by the abuse
and which affects their ability to make a reasoned decision to bring an action.
Kearns P was of the view that, in this case, the only injury the plaintiff
appeared to be relying on was a physical injury, a rare genetic disorder, but
no psychological injury as such. He found that “the symptoms associated with
this condition as experienced by the plaintiff are purely physical, and do not
ostensibly impact on the behaviour of the plaintiff or constitute a
psychological impediment to the prosecution of proceedings.”[503]
4.27
Kearns P then went on to consider the issue of dismissal for want of
prosecution. He summarised the approach to this issue as consisting of the
“traditional formulation for the exercise of the court’s discretion” as set out
in Rainsford v Limerick Corporation[504],
and as later expanded and developed in Primor plc v Stokes Kennedy
Crowley[505].
As regards the European Convention on Human Rights Act 2003, Kearns
P stated:
“There have been different views expressed in our recent jurisprudence
as to the change, if any, made to our existing Irish jurisprudence in relation
to delay following the enactment of the ECHR Act 2003.”[506]
4.28
Kearns P referred to Gilroy v Flynn and also Desmond v MGN Ltd[507].
In the Desmond case, Kearns P expressed a minority view “that the
requirement to move legal proceedings forward with expedition in this
jurisdiction has necessarily become more stringent following the coming into
operation of the European Convention on Human Rights Act 2003.”[508]
In W v W, Kearns P also went on to refer to the decision of the European
Court of Human Rights in McFarlane v Ireland,[509]
in which the Court awarded damages against the State for delay in processing
legal proceedings. Kearns P stated that this reinforced his view in relation to
problems of delay.[510]
4.29
Kearns P clearly was of the opinion that greater weight should be given
to a consideration of the protection afforded by the European Convention on
Human Rights Act 2003, particularly in light of the findings against the
State by the European Court of Human Rights in regard to lengthy legal delays.
Kearns P stated:
“I am of the view that, in addition to the central tests laid
down in the Irish cases cited above – first that the court be satisfied that
the delay is inordinate and inexcusable, and second that, where inordinate and
inexcusable delay is established, the court must decide where the balance of
justice lies – regard should be had to the requirements of Art. 6 of the ECHR
and that consideration of the ECHR requirements should be added to the
non-exhaustive list of factors to which regard should be had by the court in
the exercise of its discretion, as set out in Rainsford and Primor.
At present two decisions of the Supreme Court support this view while one
adheres to the view that the traditional Irish jurisprudence, as enunciated in Rainsford
and Primor, adequately and comprehensively state all of the relevant
principles.”
4.30
The two decisions of the Supreme Court to which Kearns P refers are Gilroy
v Flynn[511]
and Stephens v Paul Flynn Ltd[512].
Kearns P had given the judgment of the Supreme Court in the Stephens case.
4.31
In McBrearty v North Western Health Board[513] Geoghegan J also analysed the different authorities in
the area of dismissal for want of prosecution, and the courts’ inherent
jurisdiction to administer justice. As a “footnote to the view already
expressed”, he was of the view that the main principles that had to be foremost
in consideration of this inherent jurisdiction of the court to dismiss claims
for delay, were the principles set out by the Primor test. He considered
that there was no need for any ‘recalibration’ of the test required due to the European
Convention on Human Rights Act 2003. In light of the judgment in W v W,
it would appear that there remains a degree of ambiguity as to the degree to
which the incorporation of the ECHR into domestic law will, in fact, impact on
the courts’ practices. The general principles set out in Primor and Rainsford
still represent the watermark, albeit that the weight to be given to the
various factors set out therein is in a state of flux.[514]
4.32
There is also the matter of the court exercising its inherent
jurisdiction, or its discretion, to apply equitable principles to the
application of limitation periods. The decision of the Supreme Court in Murphy
v Grealish[515]
highlights this issue.
4.33
In this case, in the High Court MacMenamin J had refused the defendant’s
application for an order dismissing the plaintiff’s proceedings pursuant to
section 11(2)(a) of the Statute of Limitations 1957 (as amended by
section 3 of the Statute of Limitations (Amendment) Act 1991). The
plaintiff argued that the defendant had admitted liability prior to the expiry
of the limitation period, and negotiations had been ongoing with a view to
settlement. MacMenamin J held that an equitable estoppel arose and refused the
defendant’s application. The Supreme Court upheld this decision.
4.34
Geoghegan J gave the main judgment of the Supreme Court. He noted that
while an admission of liability is important in considering the issue of
estoppel preventing reliance on the Statute, it could not be said that the
plaintiff could ignore the Statute of Limitations based on such an admission.
He also discussed two earlier cases of the High Court[516], and although they had
been appealed to the Supreme Court, he noted as follows:
“... it does not seem to me that they had any criticism of the
basic approach of the High Court judges which was essentially to consider
whether there was an equitable estoppel by reason of the general surrounding
circumstances, those circumstances constituting an implied representation
rendering it unconscionable to allow the reliance on the statute.”[517]
4.35
Geoghegan J considered an observation of Walsh J in an earlier Supreme
Court decision, O’Reilly v Granville, which MacMenamin J
had also referred to in his decision. Walsh J had stated as follows:
“The Statute of Limitations does not exist for the purpose of
aiding unconscionable and dishonest conduct and I fully agree with the view
expressed by the Chief Justice that, in the circumstances of this case, if the
Statute of Limitations were to be invoked it would be for the purpose of
sustaining and maintaining unconscionable and dishonest conduct.”[518]
4.36
MacMenamin J said that it was “sufficient” in his view that
“on the facts the plea of the Statute is unconscionable”. Geoghegan J
felt that this was perhaps a step too far as this case was confined to a plea
of estoppel.[519] However,
he concluded his judgment by “leaving open the question” of whether a plea of
statute bar could be defeated by unconscionable conduct falling short of
estoppel, given the right circumstances.
4.37
This case would seem to create the possibility of extending the
discretion of the court in applying equitable principles to cases pleading the
statute, whereby purely “unconscionable conduct” could result in a limitation
period being dis-applied.
4.38
Furthermore, while statutes of limitation have not traditionally applied
to all equitable claims, equitable principles can nonetheless be applied to
systems of limitation law by the courts.
4.39
It is clear that an element of judicial discretion will always be
present in any reformed system of limitations arising from the courts’
constitutionally derived and inherent jurisdiction to regulate its proceedings.
Indeed, the Commission notes that the case law derived from O Domhnaill v
Merrick,[520] discussed
above, was expressly recognised in section 3 of the Statute of Limitations
(Amendment) Act 2000, which provides that nothing in the 2000 Act “shall be
construed as affecting any power of a court to dismiss an action on the ground
of there being such delay between the accrual of the cause of action and the
bringing of the action as, in the interests of justice, would warrant its dismissal.”
The Commission considers that a similar provision should be included in the
proposed limitations legislation recommended in this Report. The Commission
also considers that reference should also be included to the jurisdiction to
dismiss claims for inordinate, inexcusable and prejudicial delay, or for abuse
of process or the vexatious nature of the claim, also discussed above.
4.40
The Commission
recommends that the proposed limitations legislation recommended in this Report
should include an express statement that it is without prejudice to any power
of a court to dismiss an action on the ground of there being such delay between
the accrual of the cause of action and the bringing of the action as, in the
interests of justice, would warrant its dismissal, or for inordinate,
inexcusable and prejudicial delay, or for abuse of process or the vexatious
nature of the claim.
4.41
In this Part, the Commission considers whether a specific statutory
discretion to “postpone” or otherwise extend the “long-stop” ultimate
limitation period is required in the Commission’s proposed limitations
legislation. The Commission discusses whether such a limited “safety valve”
provision would operate by reference to a limited discretion for “exceptional
circumstances” or by reference to specific instances. The Consultation Paper contained a detailed
analysis of how other states have dealt with this type of judicial discretion
in the context of limitations law, including how the approach has evolved over
the years. In the Consultation Paper, the Commission provisionally concluded
that there was no need for the inclusion of a statutory based judicial discretion
to extend or dis-apply a limitation period.
4.42