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The Statute of Limitations

The title to this post is a misnomer; it implies that there is one single location where the law on limitations of action is stated. This is not the case, but it is the colloquial method of referring to the issue.

The issue is this; at what point and in what circumstances will an alleged injured person (injured in body, property or reputation) be prevented from maintaining legal proceedings, for redress, due to delay in bringing the proceedings? All common law jurisdictions have a system for preventing the bringing of stale claims.

For lawyers, this is dangerous territory. If a lawyer makes a mistake about this issue (by failing to issue proceedings in time, say) it may, by definition, be impossible to rectify the mistake. The consequence of this error will be the loss to the plaintiff client of a chance to litigate the claim in court. The claim will be statute-barred. However, a new claim will then arise; the claim against the lawyer, for the error.

This is bad for the lawyer, but also for the plaintiff. Such a claim, for professional negligence, will not necessarily be as good as the original claim. It is, of course, undesirable from the point of view of the lawyer.

The current law in Ireland fixes different periods of time for the bringing of actions, depending on the nature of the claim (the legal basis for the claim). In addition, the law contains exceptions to the general rule or rules. (The principal exception is that for infants and “persons under a disability”.) Then there are the exceptions to the exceptions. Of course, there is the uncertainty as to who is a person “under a disability”.

The foregoing is enough to show why the territory is dangerous; it is strewn with “landmines” and it is easy to step on them. The Irish Law Reform Commission shares this opinion.

We see this in Griffin v Calally [2008] IEHC. Time was running in that case, the defendant said, having assured the plaintiff that it, the defendant, would not deny liability.

Cautious lawyers would, in these circumstances, adopt the attitude of Nathan Bedford Forrest; “… git there fust with the most men”.

This is in contradiction to current notions of “mediation” and “conciliation”. They are fine ideas, but in their proper place; postponed until after the issue of proceedings.