Limitations Issues

General Position

The time limit for commencement of a claim based on breach of contract is six years.  The time limit for civil wrong/torts other than personal injuries and defamation is six years.

Legislation has provided special time limits for personal injuries claims arising from negligence, namely two years, and for defamation, one year.  The period for commencement of personal injury claims is suspended during the period while the case goes through the compulsory Injuries Board procedure.

Under the Statute of Limitations, begins to run when the “cause of action” accrued.  The cause of action is a claim or the basis of the claim giving entitlement to the court remedy.  The cause of action accrues when all its requisite elements have taken place so that it is possible to bring the claim.

Strictly speaking, the Statute of limitations is procedural. Technically it is not a substantive bar to the action. It must be pleaded as a defence.  It does not automatically bar the claim. For some purposes, particularly in the context of the conflicts of law, it is treated as being substantive in nature.

Accrual

The general rule is that the time limit to commence proceedings for a  legal claim generally runs from the date on which it “accrued” irrespective of the claimant’s knowledge or means of knowledge. In personal injury cases, the Statute of Limitations (Amendment) Act, 1991 provides that the claim runs from the date of knowledge of the injury.  Where the claim is based on tort / civil wrong, the time limit runs when the injury is discoverable.

A claim or right of action accrues when all the facts constituting the elements of the claim, have occurred. In effect, the claim or cause of action has accrued when the claim can be first brought. In the vast majority of cases, the circumstance or event by which the claim accrues will be more than apparent.

In breach of contract cases and many tort claims, the claim accrues on the breach of contract or on the occurrence of the civil wrong. In the case of negligence, damage, loss or injury is a necessary element of the claim, so that the claim does arise until it occurs. This may or may not be readily ascertainable at any given time.

The Statute of Limitations does not apply to criminal fines or other penalties.

Running of Time

The limitation period is stopped by the issue of legal proceedings.  The different levels of court have different rules as to the procedure for issue of a claim and the point in time when the proceedings are deemed to have issued.  In the High Court, the proceedings issue and the limitations period stop when the summons is sealed and issued by the Central Office. The summons may be served within a further period of 12 months.  After that, it lapses and may only be served if renewed by the court.

Similar provisions apply to a Civil Bill in the Circuit Court. Formerly it issued only at the point in time of service. Civil proceedings in the Circuit Court are instituted by the issue of a Civil Bill in the appropriate form. Civil proceedings in the District Court are commenced by the filing for issue and service of a claim notice.

In the case of a claim against a third party (not being a party to litigation), time runs under the Statute of Limitation until an order issues, joining the third party concerned.

Under the Interpretation Act,  periods of time are deemed to include the day from which the right accrues to the final day of that period.  If the day ends when the courts office are closed, it is deemed to extend to the next day on which the court offices are open, in order to issue proceedings.

Prior Procedural Steps

There are some statutory time limits provided for in legislation, which is substantive.  For example, the time limits on claims taken before the Workplace Relations Commission and claims under the Succession Act, are substantive and not procedural or defensive.

If for any reason, the claimant’s and defendant’s rights vest in the same person, then the time periods are suspended.  This may happen if a person becomes executor of his creditor or in circumstances where a person acquires two interests in land.

Some types of claims require the prior completion of certain procedural steps.  Where this is a case, the fact that the procedural step has not been taken,  will not cause the Statute of Limitation to be suspended.   In other cases, an apparently procedural step is, in fact, a substantive requirement.

A commonly occurring instance of a substantive requirement is where money becomes due on demand, as under a bank account and many bank loans.  In this case, the cause of action (the claims) does not arise until the monies are demanded. In the case of an agreement (such as an overdraft loan agreement), the requirement will be ascertained from the “true” interpretation of the agreement.

Some Variations and Extensions

The Statute of Limitations provides for time limits in which legal action must be commenced.  Once the time limit expires, the action can no longer be taken. It is said to be statute barred.  There are particular time limits for various classes of action.

In some cases, the time limits may be extended due to the presence of other circumstances.  This may be, for example, due to the incapacity of the claimant who is entitled to take the action, fraud on the part of the defendant or in some limited classes of cases, lack of knowledge on the claimant’s part.

In addition to the Statute, there exist a number of discretionary grounds on which legal proceedings may be restrained, which arose at common law or in equity, and which have been confirmed or preserved by the Statute or subsist apart from it.

The courts have inherent jurisdiction to restrain proceedings if the lapse of time is such as to make a fair trial impossible.  There are equitable doctrines or principles, which may bar proceedings or may more commonly bar equitable remedies, within a relatively short time frame.  It may be the equitable remedy is not available, for example, because of delay, but that a common law remedy, usually damages, is available.

Defence and Third Party

A defence may be raised at any time in response to proceedings. It is not subject to the limitation period.  A set-off or counterclaim are deemed separate actions to the principal claim. They are deemed to have commenced on the same date as the action in which they are pleaded.

The courts are likely to refuse consent to join a third party if the limitations period has run against him. If, however, there is any question that an extension of time might be available, the court may permit the third party to proceed on the basis that the matter can be raised in the action itself.

Amending Claim

The court rules allow the substitution of a party in certain cases where a bona fide error has been made.  This may arise, for example, where a claimant has sued in the name of a wrong entity.

An application to a court must be made to the court to permit the substitution. If the name of the claimant or defendant is incorrect due to a clerical error or error in description, an amendment may be allowed to correct the error.  In each case, the applications may be made notwithstanding that the limitation period has expired.

A party may be permitted to amend his claim under court rules.  This may be permitted notwithstanding that the amendment may be raised after the expiry of the limitations period under the Statute of Limitations.  The courts consider the extent and degree as to whether the claim is substantially restated.

If the amendment pleaded supplements the existing facts or clarifies the claim, it is more likely to be allowed. If, however, the claim is fundamentally changed, the consent of the court to the amendment is less likely.

Where the court consents to the amendment, it is deemed to apply retrospectively to date of issue of the proceedings, so that the Statute of Limitations is not a bar.  Where the amendment arises out of different facts and is essentially a new claim it is unlikely to be allowed.