C The Law Reform Commission is an independent statutory ON body established by the Law Reform Commission Act 1975. S U The Commission’s principal role is to keep the law under LTATI review and to make proposals for reform, in particular by recommending the enactment of legislation to clarify and ON modernise the law. PAP E This role is carried out primarily under a Programme of R CONSUltatiON papER Law Reform. The Commission’s Third Programme of Law Reform 2008-2014 was prepared and approved under the L IMITATION OF ACTIONS IMITATION 1975 Act following broad consultation and discussion. The LIMITATION Commission also works on specific matters referred to it by the Attorney General under the 1975 Act. Since 2006, OF ACTIONS the Commission’s role also includes two other areas of activity, Statute Law Restatement and the Legislation Directory. Statute Law Restatement involves incorporating all amendments to an Act into a single text, making legislation more accessible. The Legislation Directory (previously called the Chronological Tables of the Statutes) is a searchable guide to legislative changes. lrc CP 54 – 2009 €15 AddrEss TELEPHONE FAX EMail WEBsitE (lrc CP 54 – 2009) 35-39 Shelbourne Road Dublin 4 Ireland +353 1 6377600 +353 1 6377601 [email protected] www.lawreform.ie The Law Reform Commission is a statutory body established by the Law Reform Commission Act 1975 LIMITATION OF ACTIONS.indd 1 08/07/2009 10:34 www.lawreform.ie LIMITATION OF ACTIONS.indd 2 08/07/2009 10:34 CONSULTATION PAPER LIMITATION OF ACTIONS (LRC CP 54 - 2009) © COPYRIGHT Law Reform Commission FIRST PUBLISHED July 2009 ISSN 1393-3140 i 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 modernize the law. Since it was established, the Commission has published over 130 documents containing proposals for law reform and these are all available at www.lawreform.ie. Most of these proposals have led to reforming legislation. The Commission‘s role is carried out primarily under a Programme of Law Reform. Its Third Programme of Law Reform 2008-2014 was prepared by the Commission following broad consultation and discussion. In accordance with the 1975 Act, it was approved by the Government in December 2007 and placed before both Houses of the Oireachtas. The Commission also works on specific matters referred to it by the Attorney General under the 1975 Act. Since 2006, the Commission‘s role includes two other areas of activity, Statute Law Restatement and the Legislation Directory. Statute Law Restatement involves the administrative consolidation of all amendments to an Act into a single text, making legislation more accessible. Under the Statute Law (Restatement) Act 2002, where this text is certified by the Attorney General it can be relied on as evidence of the law in question. The Legislation Directory - previously called the Chronological Tables of the Statutes - is a searchable annotated guide to all legislative changes. After the Commission took over responsibility for this important resource, it decided to change the name to Legislation Directory to indicate its function more clearly. ii MEMBERSHIP Law Reform Commission consists of a President, one full-time Commissioner and three part-time Commissioners. The Commissioners at present are: President: The Hon Mrs Justice Catherine McGuinness Former Judge of the Supreme Court Full-time Commissioner: Patricia T. Rickard-Clarke, Solicitor Part-time Commissioner: Professor Finbarr McAuley Part-time Commissioner: Marian Shanley, Solicitor Part-time Commissioner: Donal O‘Donnell, Senior Counsel iii LAW REFORM RESEARCH STAFF Director of Research: Raymond Byrne BCL, LLM (NUI), Barrister-at-Law Legal Researchers: Chris Campbell B Corp LLB Diop Sa Gh (NUI) Frances Colclough BCL, LLM (NUI) Siobhan Drislane BCL, LLM (NUI) Claire Murray BCL (NUI), Barrister-at-Law Gemma Ní Chaoimh BCL, LLM (NUI) Bríd Nic Suibhne BA, LLB, LLM (TCD), Diop sa Gh (NUI) Jane O‗Grady BCL, LLB (NUI ), LPC (College of Law) Gerard Sadlier BCL (NUI) Joseph Spooner, BCL (Law with French Law) (NUI), Dip. French and European Law (Paris II), BCL (Oxon) Ciara Staunton BCL, LLM (NUI), Diop sa Gh (NUI) STATUTE LAW RESTATEMENT Project Manager for Restatement: Alma Clissmann BA (Mod), LLB, Dip Eur Law (Bruges), Solicitor Legal Researchers: John P. Byrne BCL, LLM, PhD (NUI), Barrister-at-Law Elizabeth Fitzgerald LLB, M.Sc. (Criminology & Criminal Justice), Barrister-at-Law Catriona Moloney BCL, LLM (NUI) LEGISLAT ION DIRECTORY Project Manager for Legislation Directory: Heather Mahon LLB (ling. Ger.), M.Litt., Barrister-at-Law Legal Researchers: Margaret Devaney LLB, LLM (TCD) Rachel Kemp BCL (Law and German), LLM (NUI) iv ADMINISTRATION STAFF Head of Administration and Development: Brian Glynn Executive Officers: Deirdre Bell Simon Fallon Darina Moran Peter Trainor Legal Information Manager: Conor Kennedy BA, H Dip LIS Cataloguer: Eithne Boland BA (Hons), HDip Ed, HDip LIS Clerical Officers: Ann Browne Ann Byrne Liam Dargan Sabrina Kelly PRINCIPAL LEGAL RESEARCHER FOR THIS REPORT Joanne Williams LLB, LLM, Barrister-at-Law v CONTACT DETAILS Further information can be obtained from: Head of Administration and Development Law Reform Commission 35-39 Shelbourne Road Ballsbridge Dublin 4 Telephone: +353 1 637 7600 Fax: +353 1 637 7601 Email: [email protected] Website: www.lawreform.ie vi ACKNOWLEDGEMENTS The Commission would like to thank the following people who provided valuable assistance: David Clarke, Solicitor, McCann FitzGerald, Solicitors Frances Cooke, Revenue Solicitor, Revenue Commissioners John Geraghty, Solicitor, Revenue Commissioners John O‟Sullivan, Barrister-at-Law However, full responsibility for this publication lies with the Commission. vii viii TABLE OF CONTENTS INTRODUCTION 1 A Background to the Project 1 B The meaning of ―Limitation of Actions‖ 2 C The Statute of Limitations and other legislation on limitation periods 2 D Overview of the Statute of Limitations 1957 4 E Scope of the Consultation Paper 5 F Outline of the Consultation Paper 8 CHAPTER 1 EVOLUTION OF THE LAW ON LIMITATION AND GUIDING PRINCIPLES 13 A Introduction 13 B The Origins of the Statute of Limitations 14 (1) The Limitation Act 1623 15 (2) Common Law Procedure (Ireland) Act 1853 16 (3) Land-Related Actions 19 th (4) Reform in the 20 Century 20 C Competing Constitutional Interests 22 (1) The Plaintiff‘s Interests 23 (2) The Defendant‘s Interests 25 (3) The Public Interest / The Common Good 30 (4) Judicial Review: Restricted Limitation Periods 33 (5) Balancing the Various Rights and Interests 44 D The European Convention on Human Rights 47 (1) Right of Access to the Courts 47 (2) Right to a Hearing within a Reasonable Time 50 (3) Right to respect for private and family life 56 (4) Right to an Effective Remedy 57 (5) Deprivation of Property 58 E Conclusion and Provisional Recommendations 59 CHAPTER 2 CURRENT LAW OF LIMITATIONS 61 A Introduction 61 B The Statute of Limitations 1957 62 C Basic Limitation Periods 64 (1) Tort Actions 66 (2) Contract Actions 87 (3) Miscellaneous Actions 95 ix (4) Actions to Recover Land 100 (5) Actions in respect of Breach of Trust 110 (6) Succession Actions 111 (7) Actions by Beneficiaries 120 (8) Survival of Actions 125 (9) Claims for Equitable Relief 128 (10)Actions for Restitution 131 (11)Arbitrations 132 D The Running of the Basic Limitation Period 133 E Ultimate Limitation Periods 134 F Judicial Discretion 135 G Dismissal for Want of Prosecution 137 H Postponement or Extension of the Limitation Period 137 I Practice and Procedure 138 (1) Effect of Expiry of the Limitation Period 138 (2) Calculating the Limitation Period 140 (3) Set-Offs and Counterclaims 142 J General Problems with the Current Law 142 (1) Complexity 142 (2) Incoherence 143 (3) Lack of Clarity 143 (4) Classification Difficulties 144 (5) Irrelevance 145 (6) Time-Wasting and Costliness 146 (7) Inaccessible 146 K Conclusion and Provisional Recommendation 146 CHAPTER 3 MODELS FOR REFORM: A CORE LIMITATION REGIME? 147 A Introduction 147 B What is a ―Core Limitations Regime‖? 148 C Why Introduce a Core Regime? 148 D Models for a Core Regime 149 (1) Alberta 149 (2) Western Australia 161 (3) England and Wales 166 (4) New Zealand 169 CHAPTER 4 A UNIFORM BASIC LIMITATION PERIOD 175 A Introduction 175 B Trends in the reform of basic limitation periods 175 (1) Reduction of the Range of Different Limitation Periods 175 x (2) ―Catch-All‖ Limitation Periods 177 (3) Uniform Basic Limitation Periods 177 (4) Provisional Recommendation 178 C Length of the Uniform Basic Limitation Period 179 (1) One Year? 180 (2) Two Years? 182 (3) Three Years? 183 (4) Four Years? 184 (5) Five Years? 186 (6) Six Years? 188 (7) A variety of fixed Lengths: the British Columbia model 189 (8) Other Considerations 190 (9) Provisional Recommendation 190 D Running the Basic Limitation Period 191 (1) Date of Accrual 192 (2) Date of the Act or Omission giving rise to the Action 194 (3) Discoverability 196 (4) Alternative Starting Dates: Accrual or Discoverability 213 (5) Conclusion and Provisional Recommendation 219 CHAPTER 5 A UNIFORM ULTIMATE LIMITATION PERIOD 221 A Introduction 221 B History of the Ultimate Limitation Period 221 (1) Advantages of an Ultimate Limitation Period 222 (2) Disadvantages of an Ultimate Limitation Period 224 (3) Provisional Recommendation