{"id":2832,"date":"2018-09-03T21:52:17","date_gmt":"2018-09-03T21:52:17","guid":{"rendered":"https:\/\/legalblog.ie\/various-limitations-issues\/"},"modified":"2018-09-03T21:52:17","modified_gmt":"2018-09-03T21:52:17","slug":"various-limitations-issues","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/various-limitations-issues\/","title":{"rendered":"Limitations Issues"},"content":{"rendered":"<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_63 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title \" >Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"Toggle Table of Content\"><span class=\"ez-toc-js-icon-con\"><span class=\"\"><span class=\"eztoc-hide\" style=\"display:none;\">Toggle<\/span><span class=\"ez-toc-icon-toggle-span\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/span><\/span><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/legalblog.ie\/various-limitations-issues\/#General_Position\" title=\"General Position\">General Position<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/legalblog.ie\/various-limitations-issues\/#Running_of_Time\" title=\"Running of Time\">Running of Time<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/legalblog.ie\/various-limitations-issues\/#Prior_Procedural_Steps\" title=\"Prior Procedural Steps\">Prior Procedural Steps<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/legalblog.ie\/various-limitations-issues\/#Some_Variations_and_Extensions\" title=\"Some Variations and Extensions\">Some Variations and Extensions<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/legalblog.ie\/various-limitations-issues\/#Constitutional_and_Human_Rights_Issues\" title=\"Constitutional and Human Rights Issues\">Constitutional and Human Rights Issues<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-6\" href=\"https:\/\/legalblog.ie\/various-limitations-issues\/#Defence_and_Third_Party\" title=\"Defence and Third Party\">Defence and Third Party<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-7\" href=\"https:\/\/legalblog.ie\/various-limitations-issues\/#Amending_Claim\" title=\"Amending Claim\">Amending Claim<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-8\" href=\"https:\/\/legalblog.ie\/various-limitations-issues\/#Delay_in_Equity_I\" title=\"Delay in Equity I\">Delay in Equity I<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-9\" href=\"https:\/\/legalblog.ie\/various-limitations-issues\/#Delay_in_Equity_II\" title=\"Delay in Equity II\">Delay in Equity II<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-10\" href=\"https:\/\/legalblog.ie\/various-limitations-issues\/#Dismissal_for_Delay\" title=\"Dismissal for Delay\">Dismissal for Delay<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-11\" href=\"https:\/\/legalblog.ie\/various-limitations-issues\/#Sexual_Abuse\" title=\"Sexual Abuse\">Sexual Abuse<\/a><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"General_Position\"><\/span>General Position<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The time limit for commencement of a claim based on breach of contract is six years.\u00a0 The time limit for civil wrong\/torts other than personal injuries and defamation is six years.<\/p>\n<p>Recent legislation has provided special time limits for personal injuries claims arising from negligence, namely two years, and for defamation, one year.\u00a0 The period for commencement of personal injury claims is suspended during the period while the case goes through the compulsory Injuries Board procedure.<\/p>\n<p>Under the Statute of Limitations, begins to run when the \\&#8221;cause of action\\&#8221; accrued.\u00a0 The cause of action is a claim or the basis of the claim giving entitlement to the court remedy.\u00a0 The cause of action accrues when all its requisite elements have taken place, so that is possible to bring the claim.<\/p>\n<p>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.\u00a0 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.<\/p>\n<p>The general rule is that the time limit to commence proceedings for a\u00a0 legal claim generally runs from the date on which it \u201caccrued\u201d irrespective of the claimant\u2019s 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.\u00a0 Where the claim is based on tort \/ civil wrong, the time limit runs when the injury is discoverable.<\/p>\n<p>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.<\/p>\n<p>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.<\/p>\n<p>The Statute of Limitations does not apply to criminal fines or other penalties.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Running_of_Time\"><\/span>Running of Time<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The limitation period is stopped by the issue of legal proceedings.\u00a0 The different levels of court\u00a0have different rules as to the procedure for issue of a claim and the point in time when the proceedings are deemed to have issued.\u00a0 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.\u00a0 After that, it lapses and may only be served if renewed by the court.<\/p>\n<p>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.<\/p>\n<p>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.<\/p>\n<p>Under the Interpretation Act, \u00a0periods of time are deemed to include the day from which the right accrues to the final day of that period.\u00a0 If the day ends when the courts\\&#8217; office are closed, it is deemed to extend to the next day on which the court offices are open, in order to issue proceedings.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Prior_Procedural_Steps\"><\/span>Prior Procedural Steps<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>There are some statutory time limits provided for in legislation, which is substantive.\u00a0 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.<\/p>\n<p>If for any reason, the claimant\u2019s and defendant\u2019s rights vest in the same person, then the time periods are suspended.\u00a0 This may happen if a person becomes executor of his creditor or in circumstances where a person acquires two interests in land.<\/p>\n<p>Some types of claims require the prior completion of certain procedural steps.\u00a0 Where this is a case, the fact that the procedural step has not been taken, \u00a0will not cause the Statute of Limitation to be suspended. \u00a0\u00a0In other cases, an apparently procedural step is, in fact, a substantive requirement.<\/p>\n<p>A commonly occurring instance of a substantive requirement is where money becomes due on demand, as under a bank account and many bank loans.\u00a0 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 \u201ctrue\u201d interpretation of the agreement.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Some_Variations_and_Extensions\"><\/span>Some Variations and Extensions<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The Statute of Limitations provides for time limits in which legal action must be commenced.\u00a0 Once the time limit expires, the action can no longer be taken. It is said to be statute barred.\u00a0 There are particular time limits for various classes of action.<\/p>\n<p>In some cases, the time limits may be extended due to the presence of other circumstances.\u00a0 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\u2019s part.<\/p>\n<p>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.<\/p>\n<p>The courts have inherent jurisdiction to restrain proceedings if the lapse of time is such as to make a fair trial impossible. \u00a0There are equitable doctrines or principles, which may bar proceedings or may more commonly bar equitable remedies, within a relatively short time frame.\u00a0 It may be the equitable remedy is not available, for example, because of delay, but that a common law remedy, usually damages, is available.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Constitutional_and_Human_Rights_Issues\"><\/span>Constitutional and Human Rights Issues<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Generally, the courts have upheld challenges to limitation periods on Human Rights and constitutional grounds. The Supreme Courts have tended to hold that the statutory limitations reflect a fair balancing of the constitutional right of access to the courts and the interests in finality and in quieting disputes and titles.<\/p>\n<p>In the 1970s, the Supreme Court struck down a provision of the Statute of Limitation by which an extension of time on the ground of disability was not available to an underage child in the custody of a parent or guardian while being available to an underage child not in such custody. The special short two-year post-death time limit in respect of claims against the estate of a deceased estate was upheld by a similarly constituted Supreme Court in the same era.<\/p>\n<p>The absence of a discoverability test in cases of negligence, other than personal injuries was found constitutional notwithstanding that a right of action may run and be barred in circumstances unknown and unknowable to him and notwithstanding that it deprived the claimant of his constitutionally protected right of recourse to the court.<\/p>\n<p>In a Human Rights Convention challenge to the UK\u2019s 12-year Statute of Limitation period, the lower level court held that there was a deprivation of the claimant\u2019s rights.\u00a0 England and Wales reformed its laws on adverse possession in response. However, the full European Court of Human Rights held that the legislation was legitimate, notwithstanding that it involved the deprivation of title to land without compensation.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Defence_and_Third_Party\"><\/span>Defence and Third Party<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>A defence may be raised at any time in response to proceedings. It is not subject to the limitation period.\u00a0 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.<\/p>\n<p>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.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Amending_Claim\"><\/span>Amending Claim<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The court rules allow substitution of a party in certain cases where a bona fide error has been made.\u00a0 This may arise, for example, where a claimant has sued in the name of a wrong entity.\u00a0 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.\u00a0 In each case, the applications may be made notwithstanding that the limitation period has expired.<\/p>\n<p>A party may be permitted to amend his claim under court rules.\u00a0 This may be permitted notwithstanding that the amendment may be raised after the expiry of the limitations period under the Statute of Limitations.\u00a0 The courts consider the extent and degree as to whether the claim is substantially restated.<\/p>\n<p>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.<\/p>\n<p>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. \u00a0Where the amendment arises out of different facts and is essentially a new claim it is unlikely to be allowed.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Delay_in_Equity_I\"><\/span>Delay in Equity I<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The Statute of Limitations does not apply to claims for equitable relief.\u00a0 A court may deny equitable relief, notwithstanding that the limitations period has not expired.\u00a0 Where a claimant has not acted with due diligence in the commencement and prosecution a claim, equitable relief may be denied.\u00a0 This is the principle of laches or acquiescence.\u00a0 It derives from the discretionary basis of equitable relief.<\/p>\n<p>The principle of laches in equity is more flexible in its operation than the Statute of Limitations period. The criteria are case specific. Where it would be unjust to grant the remedy, because of delay or neglect on the claimant\u2019s part, equitable relief is likely to be denied.\u00a0 The courts will look at the totality of circumstances will consider whether the balance of justice requires that the remedy be withheld.<\/p>\n<p>In considering the question of delay, the courts will have regard to any change of position on the part of the defendant resulting from the delay. The principle is similar to that of estoppel, in some respects. Where an equitable remedy (such as an injunction) is refused, a common law remedy (such as damages) may be granted, where the claim is commenced within the limitations period.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Delay_in_Equity_II\"><\/span>Delay in Equity II<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The entirety of the circumstances will be considered as to whether the delay is unreasonable.\u00a0 If for example, the defendant is exercising undue influence over the claimant, the delay will not be a factor during this time. The fact of delay by itself is not sufficient to bar an equitable remedy.\u00a0 Generally, it must be such as to prejudice or adversely affect the defendant.<\/p>\n<p>Laches\/delay will not usually operate against a beneficiary of a trust or a fiduciary duty. However, in a commercial context, where the fiduciary duties arise by operation of law between parties who deal at arms length, the principle of laches \/delay may apply, in particular where the delay is prolonged.<\/p>\n<p>In the case of an injunction, a very short delay may be sufficient to lead to refusal of relief.\u00a0 The remedies are not generally available where the claimant has not acted promptly. The claimant\u2019s argument that he would be critically prejudiced by the failure to grant the remedy, carries less weight where he has delayed in seeking the relief.<\/p>\n<p>Similarly, it is well established that an application for specific performance must be bought reasonably promptly.\u00a0 A delay of a number of months may be sufficient to deny relief in some circumstances.\u00a0 In other circumstances, the justice of the case may be such that a longer delay may not bar the grant of specific performance.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Dismissal_for_Delay\"><\/span>Dismissal for Delay<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>There is a general jurisdiction to dismiss proceedings for want of prosecution.\u00a0 It may be exercised where there has been substantial prejudice, such as to cause fundamental unfairness to the defendant.\u00a0 Where there is a clear and patent unfairness in asking the defendant to meet the case after a long lapse of time, to which defendant has not contributed, and to which the claimant may have contributed, the court may exercise its jurisdiction to dismiss the action.<\/p>\n<p>These criteria may arise in cases where the normal Statute of Limitations period is postponed due to the discoverability rule in personal injury cases.<\/p>\n<p>The lapse of time may lead to a real and serious risk of an unfair trial in many cases. Witnesses may be may be able to recollect the position. They may be dead or otherwise unavailable. The absence of a\u00a0witness or their inability to recall the facts may prejudice the defendant to such an extent, that proceedings will not be allowed.<\/p>\n<p>The possibility of claims being brought after a long delay arises in the case of a minor.\u00a0 The main Statute of Limitations period extends or a period of three years after the child reaches the age of majority. However, the courts may restrain the taking of a claim after a very substantial delay on the basis that the defendant cannot have the benefit of a fair trial.<\/p>\n<p>Courts have an inherent jurisdiction to dismiss proceedings for want of prosecution.\u00a0 The jurisdiction is confirmed by and provided in the rules of court. The criteria are generally that the delay is inordinate and inexcusable.<\/p>\n<p>The courts will consider the issue of the prejudice to the defendant.\u00a0 It will consider the relative importance of the case to which the claimant and the relative strength of the parties. An important factor against dismissal is that the defendant has induced or caused the delay.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Sexual_Abuse\"><\/span>Sexual Abuse<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The question discoverability under the Statute of Limitations Act Amendment Act 1991 was an issue in some of the earlier cases arising from the sexual abuse of minors. \u00a0The courts in a number of cases were prepared to take a sympathetic view to claimants and to accept that they were not aware of the significance of certain psychiatric and psychological injuries attributable to the sexual assault and delay in the receipt of the help of experts and advice.<\/p>\n<p>The Statute of Limitations (Amendment) Act 2000 extended the limitation period in relation to sexual abuse cases.\u00a0 Where a claimant had been sexually abused when he or she was a minor but had ceased to be under a disability for a period in excess of the Statute of Limitations the claimant had one additional year after the passing of the Act in which to initiate proceedings.<\/p>\n<p>The claimant must either have obtained legal advice, which caused him to believe that an action could not be brought or must have complained to Garda S\u00edoch\u00e1na about the abuse prior to that date. For the purpose of bringing an action in relation to sex abuse where the person was a minor, a person was deemed under a disability while he is suffering from a psychological injury that was caused in whole or in part by that act or other act of the person who committed that act which was of such significance that his will or his ability to make a reasoned decision to bring action was substantially impaired.<\/p>\n<p>That Act confirms the general power of the courts to dismiss an action on the basis of long delay where the interests of justice warrant dismissal. The claim of unfair prejudice has been made in civil claims based on historical abuse, often many decades before. \u00a0Where the delay has been inexcusable and inordinate such as very many decades, the court may exercise its discretion, to dismiss the claim on account of the prejudice to the defendant\u2019s\u00a0right to a fair trial of the matter.<\/p>\n<p>In cases of deliberate and serious abuse, the courts have not been generally regarded that the taking of proceedings after a prolonged delay, as fundamentally unfair in itself.<\/p>\n<p>&nbsp;<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-2832\" data-postid=\"2832\" class=\"themify_builder_content themify_builder_content-2832 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>General Position The time limit for commencement of a claim based on breach of contract is six years.\u00a0 The time limit for civil wrong\/torts other than personal injuries and defamation is six years. Recent legislation has provided special time limits for personal injuries claims arising from negligence, namely two years, and for defamation, one year.\u00a0 [&hellip;]<\/p>\n","protected":false},"author":341,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[313],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/2832"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/341"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=2832"}],"version-history":[{"count":0,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/2832\/revisions"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=2832"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=2832"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=2832"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}