How long do I have to make a claim?

This is a frequently asked question by many clients particularly (but not only) in the context of personal injury claims. This is a guide to the law in Ireland with particular regard to the Statutes of Limitations Act and relevant case law precedent which may be useful in the context of many types of actions.

What is meant by the Statute of Limitations?

• This legislation concerns (in layman’s terms) how the law attempts to define how soon you need to make a claim (in terms of deadlines, after the knowable fact or facts, that one has to instigate legal action before the passage of time renders it null and void).
• The law recognises that permitting litigation to take place many years or decades after the alleged wrong occurred can be unjust and inequitable.
• For that reason the Oireachtas has set out limitation periods during which legal proceedings must be brought.
• The Statute of Limitations Act 1957 (as amended and cited as the Statute of Limitations) has most of these limitation periods, although there are several statutory limitation periods not contained in this statute.

(Memories fade, evidence can be lost and parties may have adopted the reasonable assumption that litigation will never be brought in relation to the events in question).

Statute of Limitations as a Defence

Firstly, it is important to recognize that the Statute of Limitations is a statutory defence. What this means is that a court has jurisdiction to issue proceedings in respect of and hear a claim, even it is potentially statute-barred. The Defendant to the proceedings needs to plead on his or her defence that he or she is relying on the statute of limitations and prove this defence at trial.

That being said if it is very clear and it is uncontested that a case is statute barred (e.g. the Plaintiff pleads a tort occurred on a certain date, and the court summons issued well outside the limitation period), it is likely that a court would grant an application to dismiss the case without a full trial on the application of a Defendant as bound to fail.

Time Limits for Claims for PERSONAL INJURY

For a personal injuries claim, it is somewhat more complex in that the Statute of Limitations (Amendment) Act 1991 provides for a special statutory time limit of two years from the date of knowledge with respect to personal injury claims and fatal injury claims.

This has been changed to three years with respect of clinical negligence claims under Part 15 of the Legal Services Act 2015 which still has to be brought into force. The time while the claim is being assessed by the injuries board is also disregarded as well as a six months period afterwards.

The date of knowledge is defined as the date a person (or a personal representative or dependent of a dead person) had knowledge that the injury had occurred, that it was significant, and that it was attributable to negligence or breach of duty, and knew the identity of the defendant.

Knowledge under this section includes knowledge a person might reasonably be expected to acquire from facts observed or ascertained by him or with the help of appropriate expert advice, but a person will not be fixed with knowledge if it was only obtainable from an expert and the person took all reasonable steps to obtain expert advice or if the knowledge could not be ascertained as a result of the injury which was inflicted.

The test for the date of knowledge is primarily a subjective test, with the objective element of what information a plaintiff could reasonably be expected to acquire.

In Whitely v Minister for Defence, Quirke J. distinguished the test from the test in British legislation which provided that a person was fixed with the date of knowledge from the date at which he knew the injury was significant. This was defined as being based on his knowledge of the injuries, or a date a reasonable person would have instigated proceedings.

Quirke J. contrasted these English provisions with s.2 of the 1991 Act, which provided for the elements of knowledge of the injury to be subjective, subject to the objective requirement that a person is fixed with knowledge of facts that they could have reasonably ascertained:

“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.

As I have indicated, I believe the appropriate test to be primarily subjective because it must be qualified to a certain extent by the provisions of s. 2(2) of the Act of 1991, to which I have already referred. That sub-section introduces a degree of objectivity into the test and potentially requires the additional consideration of whether or not the particular plaintiff at the particular time ought reasonably to have sought medical or other expert advice having regard to the symptoms from which he was suffering and the other circumstances in which he then found himself.”

This description of the date of knowledge elements of the 1991 Act as for the most part a subjective test was approved by the Irish Supreme Court in Bolger v O’Brien.

In Gough v Neary, the Supreme Court considered the issue of when a plaintiff who had an unnecessary hysterectomy performed on her by the defendant was fixed with knowledge for the purposes of the Statutes of Limitations. Hardiman J. gave a minority judgment that the plaintiff was fixed with knowledge on the date she became aware of the wrongful acts that formed the basis of her claim in negligence, and that she should reply to a plea of the Statutes of Limitations on the basis the claim was concealed from her by fraud on the part of the defendant.

Geoghegan J. for the majority held that the plaintiff was fixed with knowledge on the date the plaintiff had sufficient knowledge to make it reasonable for her to investigate whether she had a case against the defendant. Geoghegan J. adopted the test set by Brooke L.J. in Spargo v North East Essex Health Authority.

“(1) The knowledge required to satisfy [the English equivalent of s.2] is a broad knowledge of the essence of the causally relevant act or omission to which the injury is attributable;

(2)  ‘attributable’ in this context means ‘capable of being attributed to’, in the sense of being a real possibility;

(3)  a plaintiff has the requisite knowledge when she knows enough to make it reasonable for her to begin to investigate whether or not she has a case against the defendant. Another way of putting this is to say that she will have such knowledge if she so firmly believes that her condition is capable of being attributed to an act or omission which she can identify (in broad terms) that she goes to a solicitor to seek advice about making a claim for compensation;

(4)  on the other hand, she will not have the requisite knowledge if she thinks she knows the acts or omissions she should investigate but in fact is barking up the wrong tree: or if her knowledge of what the defendant did or did not do is so vague or general that she cannot fairly be expected to know what she should investigate; or if her state of mind is such that she thinks her condition is capable of being attributed to the act or omission alleged to constitute negligence, but she is not sure about this, and would need to check with an expert before she could be properly said to know that it was.”^[7]

In Byrne v Hudson, the Supreme Court considered the issue of the date of knowledge with regard to the identity of a potential defendant. The plaintiff had joined the third-named defendant to the proceedings outside of the time then fixed by the Statutes of Limitations, because a Land Registry search conducted by the plaintiff’s solicitor revealed the second-named defendant as the owner of the property where the injury occurred.

In fact the second-named defendant was the estranged husband of the third-named defendant and no longer resided at the property. The plaintiff attempted to rely on the date of knowledge provisions since it was claimed that he did not know the second-named defendant did not occupy the property until his defence was delivered.

The Supreme Court held that since the plaintiff personally knew the second- and third-named defendants’ son and knew or ought to have known that the third-named defendant occupied the property, the plaintiff was fixed with the knowledge of the identity of the occupier. This was regardless of the fact that the plaintiff did not impart this information to his solicitor who carried out a Land Registry search to ascertain the occupier.

Macken J. held that since s.2 of the Statute of Limitations (Amendment) Act 1991 was an exception to the normal rule that the Statute runs from the date of the wrong, it was not to be construed unduly laxly:

“Further I am of the view that since the provisions of s. 2 are, in reality, an exception to the normal provisions concerning the obligation to commence proceedings for relief in respect of a tort causing personal injuries within a three year period, it is correct to apply the provisions of the section literally and not benignly or by an unduly lax interpretation. There is no suggestion in the Act of 1991 that a plaintiff is in some way to be forgiven for failing to furnish to his solicitor all of the facts which are within his direct knowledge, as here, so as to enable his solicitor commence proceedings against the correct defendant.”

Pursuant to s.50 of the Personal Injuries Assessment Board Act 2003, the period fixed by the Statute of Limitations excludes a time period commencing when an application is made to the Board and finishing six months after the Board issues an authorisation to bring court proceedings. The Civil Law Miscellaneous Provisions Act 2011 extends this provision to all statutory time limits other than the Statute of Limitations.

What this means is following receipt of an application by the Personal Injuries Assessment Board (PIAB), the limitation time limit is stopped. If the claim is not resolved by PIAB, when the Board issues an authorisation to issue court proceedings, the Plaintiff has whatever time remaining under the Statute of Limitations prior to the application to the Board plus a further six month.

Claims for damages resulting from medical, dental or nursing negligence are excluded from the PIAB system and therefore an application to PIAB does not stop the statute from running.

Similarly for a claim governed by foreign law (such as a claim taken in Ireland for an accident abroad), the application and assessment by PIAB does not stop any applicable limitation period running.

In Renehan v. T & S Taverns t/a the Red Cow Inn [2015] IESC 8 the Supreme Court considered whether the initial application to PIAB in respect of the claim (even if the wrong Defendant was named as respondent at that point) stopped the limitation clock, or whether it was an application to PIAB with respect of the relevant Defendant which stopped the clock against that Defendant.

O’Donnell J. held it was the former, a valid PIAB application with respect of the cause of action in question stopped the limitation period, even if the Defendant in question was not named as a respondent at that stage and is sought to be joined many years later holding:

“16.     Viewed in the abstract there is considerable logic in the approach of the defendant in this case. The concept of a “claim” perhaps contemplates that it is brought against a particular person in respect of the alleged wrong.

The Statue of Limitations provides a defence for each individual defendant. It is conceivable that a claim arising form the same facts may be barred against one person and not against another, and also possible, at least in theory, that one defendant will seek to plead the Statute of Limitations whereas another sued in respect of the same cause of action may choose not to do so.

It might follow that it is only necessary to suspend the running of time for the purpose of the Statute of Limitations in respect of the period during which the Board, in the first place, and the parties subsequently, are considering the process of assessment of a claim against each individual defendant.

However, it is notable that the 2003 Act as a whole is drafted with a view to introducing a novel compulsory procedure into the process of civil litigation which may involve the limitation of constitutional rights.

The Act appears to be very careful to avoid any contention that it is intruding unfairly on the decision of a plaintiff to seek compensation in civil proceedings. Thus it would be obviously unfair if the period during which a plaintiff was required to engage with the statutory authority was capable of being counted for the purposes of a possible defence under the Statue of Limitations.

Accordingly s. 50 creates a very wide standstill period. Even in a standard case it provides for a six month period after the date of issuance of an authorisation during which the Statute of Limitations does not run.

This is a reasonably lengthy period given that the plaintiff has already had the benefit of the period during which the Board has considered the claim, to consider what he or she thinks, and is advised, is the value of the claim, and to prepare for the possibility that it may be necessary to bring civil proceedings in the event that the PIAB figure is unattractive.”

It should be noted that the Personal Injuries Assessment Board (Amendment) Bill 2018 currently before the Oireachtas will amend the law and make it clear that an application to PIAB will only stop the limitation period with respect of the Defendant in question and not all potential Defendants.

General Limitation Period

The general limitation period under the Statute of Limitations is six years for proceedings for tort or breach of contract or to enforce an arbitral award (s. 11(1) and 11(2)). What this means is that in general you have six years from when a breach of contract or a tort occurs to bring legal proceedings.

An action on a deed under seal is 12 years, but it is limited to six years rent (even if the lease is under seal).

Actions with respect of Land

The limitation period to recover land under section 13 of the Statute of Limitations is 12 years, unless the Defendant is a state authority in which case it is 30 years. The limitation period for the foreshore, that is the land below the high water is sixty years.

When a person’s entitlement to recover land against another is barred by the Statute of Limitations, this is referred to as ‘adverse possession’ and sometimes colloquially referred to as acquiring land by ‘squatters rights’. The theory being that the Defendant has acquired land by squatting for the required period.

Section 24 of the Statute of Limitations provides that if a Plaintiff’s claim to recover land is barred by the Statute of Limitations, their title is extinguished.

This provides certainty in the system of land ownership, as while the Statute of Limitations is only a statutory defence to a claim, in respect of land a claim to recover possession becoming statute barred also acts to extinguish a Plaintiff’s title to land, without the necessity of a Plaintiff issuing legal proceedings and the statute of limitations being successfully pleaded.

A Defendant must dispossess the Plaintiff and act adverse to their interests as landowner in order for time to run to recover possession under the Statute of Limitations. In Dunne v. Irish Rail [2007] IEHC 314 Clarke J. held in that the actions by the dispossessor must be of such a character that an original land owner was not in doubt that he was being dispossessed. Approving this passage from a previous case:

“In order to defeat the title of the original landowner, I am of opinion that the adverse user must be of a definite and positive character and such as could leave no doubt in the mind of a landowner alerted to his rights that occupation adverse to his title was taking place. This is particularly the case when the parcel of land involved is for the time being worthless or valueless for the purposes of the original owner.”

Clarke J. later held that while the squatter had a relatively high burden in showing his use was adverse, the original paper title owner only had to engage in minimal acts of possession to reset the clock:

“Firstly it is common case that in order for adverse possession entitlements to accrue, a continuous possession of the land for a period of twelve years must be established.

In Powell v. McFarlane Slade L.J. noted, at p. 472, that “an owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This, in my judgment, is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession.”

It is, therefore, important to emphasis that minimal acts of possession by the owner of the paper title will be sufficient to establish that he was not, at least at the relevant time of those acts, dispossessed. The assessment of possession is not one in which the possession of the paper title owner and the person claiming adverse possession are judged on the same basis. An owner will be taken to continue in possession with even minimal acts.

A dispossessor will need to establish possession akin to that which an owner making full but ordinary use of the property concerned, having regard to its characteristics, could be expected to make. It is not, therefore, a question of weighing up and balancing the extent of the possession of an owner and a person claiming adverse possession. Provided that there are any acts of possession by the owner, then adverse possession cannot run at the relevant time. “

Although minimal actions by the paper title owner are sufficient to reset the clock, if the clock has already run they do not revive the title as it is extinguished under s. 24 of the Act..

If an individual has acquired land by adverse possession, he or she can formalise the position by making an application to the Land Registry for first registration of the land based on adverse possession, or by making an application to the Property Registration Authority to be registered as owner of the land in question (if already registered title) under s. 49 of the Registration of Title Act 1964.

The Property Registration Authority will require affidavit evidence of the possession, and serve notices on the paper title owner (if he or she can be found) and other persons who may have an interest in the property such as adjoining land owners. If there is any real dispute, the Property Registration Authority will refuse the application and an applicant will have to bring proceedings in the Circuit or High Court for a declaration that they own the property in question.

Time Limit for Liability for Defective Products

The time limit for a claim under the Liability for Defective Products Act 1991 is three years from the date the damage occurred or when the plaintiff was aware or should reasonably have been aware of the damage, the defect and the identity of the producer.

This is subject to a maximum time limit of 10 years from the date the producer put the product into circulation in the European Union.

Time Limits for Defamation Actions

Section 11(2)(c) of the Act provides for a one year limitation period for actions for defamation, which can be extendable by a judge to two years provided the court is satisfied:

“the interests of justice require the giving of the direction, and the prejudice that the plaintiff would suffer if the direction were not given would significantly outweigh the prejudice that the defendant would suffer if the direction were give”

Claims for Contribution/Indemnity

A indemnity is a claim by a Defendant that they are entitled to a full indemnity from another party for damages that they have to pay with respect of a wrong. A contribution is a claim against a concurrent wrongdoer to also partially discharge the liability to the Plaintiff.

Section 31 of the Civil Liability Act 1961 provides:

“An action may be brought for contribution within the same period as the injured person is allowed by law for bringing an action against the contributor, or within the period of two years after the liability of the claimant is ascertained or the injured person’s damages are paid, whichever is the greater”.

Statutes of Limitations Suspended during Infancy or Incapacity

Section 5 of the Statute of Limitations (Amendment) Act 1991 provides that when a plaintiff is under a disability at the date of the injury or date of knowledge, the Statutes of Limitations period shall not run until a plaintiff is no longer under a disability.

A person is considered under a disability if he is an infant^[10] or of unsound mind. A person shall be conclusively presumed to be of unsound mind if he is detained pursuant to mental health legislation or following an acquittal by reason of insanity.

The Statute of Limitations Act 1957 originally provided that the time limit for an infant did not run unless an infant plaintiff could prove he was not in the custody of his parents,^[12] but this provision was struck down in Keogh v O’Brien as an unconstitutional attack on the property rights of infant litigants, and was repealed by the 1991 Act.

Victims of Abuse

Section 48A was inserted into the Statutes of Limitations by s.2 of the Statute of Limitations (Amendment) Act 2000, which extends the time period for victims of sexual abuse while children.

Section 48A(1) provides that if a person suffers a psychological injury they shall be considered under a disability under the act. Section 48A(3) however provides that an action that would be statute barred but for this subsection must be brought within a year of the enactment of the 2000 Amendment Act.

Statutes of Limitations Suspended by Fraud or Concealment

Section 71 of the Statute of Limitations Act 1957 provides that where a cause of action is based on the fraud of the defendant or his agent or the cause of action was concealed by fraud, the limitation only runs from when the plaintiff discovered the fraud or could reasonably have discovered it.

In Gough v Neary, Hardiman J. held that the defendant doctor and hospital through its employees, in failing to notify the plaintiff that the hysterectomy was performed on her unnecessarily, were guilty of concealing the claim by fraud from the plaintiff.

Hardiman J. approved of the decision of Denning M.R. in King v Victor Parsons & Co,^[15] where it was held that a party remaining silent can be guilty of fraud within the meaning of the British Limitations Acts:

“In order to show that he ‘concealed’ the right to action ‘by fraud’, it is not necessary to show that he took active steps to conceal his wrongdoing or breach of contract. It is sufficient that he knowingly committed it and did not tell the owner anything about it. He did the wrong or committed the breach secretly. By saying nothing he keeps it secret. He conceals the right of action. He conceals it by ‘fraud’ as those words have been interpreted in the cases. To this word ‘knowingly’ there must be added ‘recklessly’.”

Hardiman J. further referred to Lord Evershead M.R. in Kitchen v Royal Air Force Association^[17]:

“But it is now clear that the word fraud in [the English equivalent of s.71], is by no means limited to common law fraud or deceit. Equally, it is clear, having regard to the decision in Beaman v. A.R.T.S. Ltd. [1949] 1 K.B. 550 that no degree of moral turpitude is necessary to establish fraud within the section. What is covered by equitable fraud is a matter which Lord Hardwicke did not attempt to define 200 years ago, and I certainly shall not attempt to do so now, but it is, I think, clear that the phrase covers conduct which, having regard to some special relationship between the two parties concerned is an unconscionable thing for the one to do towards the other.”

Hardiman J. held that fraud needed to be specifically pleaded and in Gough it was not. It should have been pleaded as a reply by the plaintiff to the defendant’s defence.

It is important that if a plaintiff seeks to rely on the provisions of s.71, they should in the High Court deliver a reply pleading that the plaintiff is not entitled to rely on the Statutes of Limitations due to fraudulent concealment under s.71.

The Circuit or District Court Rules do not provide for a reply, though a plaintiff can give notice that they intend to rely on s.71 at trial through open correspondence.

When do proceedings ‘accrue’?

The Statute of Limitation period commences when the cause of action accrues, that is when all the elements of a claim have occurred so that a Plaintiff can sue.

• For a breach of contract claim, this is when the contract is breached, for an action to recover land it is when the Defendant has been dispossessed. For claims in tort there is a necessity for damage to accrue before a claim can be brought in tort.
• For personal injury claims, the Statute of Limitations (Amendment) Act 1991 provides some protection for Plaintiffs since as discussed above, the limitation period runs from the later date of the cause of action accruing or the Plaintiff having knowledge of the injury.
• For non personal injury claims, the law was uncertain for many years as what was to occur in latent damage cases. If a building is constructed so that it will subside or otherwise has a latent defect not apparent upon construction, does the limitation period from when the building was initially defectively built (as it would in contract), or from when the damage became apparent (on the basis that a Plaintiff could not sue in negligence until the damage occurred). In Brandley v. Deane [2017] IESC 83 the Supreme Court held it was the later, when the damage became ‘manifest’, that is when the damage was capable of being discovered (regardless of whether it was actually discovered).

When are proceedings ‘commenced’?

When court proceedings commence it ends the limitation period.

• For the High Court and Circuit Court in accordance with the relevant rules of court, this is when an appropriate originating document (be it a civil bill or summons) is issued from the relevant court office.
• For the District Court the proceedings are considered issued the date they are issued from the relevant District Court office if proceedings are personally served. If however proceedings are served by post, section 7(6) of the Courts Act 1964 provides that the date of commencement of proceedings is the date that proceedings are served rather than issue from the court office.

This anomaly unfortunately is due to the fact that under a previous version of the District Court rules, proceedings could be commenced in the District Court by serving a notice of institution of proceedings with appropriate stamp duty returnable to a sitting of the District Court without issuing a document from the District Court office.

The District Court rules have been modified to have the same system as the other courts (the originating document needing to be issued from a court office), unfortunately the Courts Act 1964 has not been updated.

If a Defendant is added to proceedings they are considered commenced from when the relevant court made an order joining them to the proceedings.

On the relevant anniversary the Statute of Limitations provides that proceedings stand extinguished, and due to the Interpretation Act 2005, the date in which the wrong occurred is counted in determining the limitation period as per McGuinness v. Armstrong Patents.

The last date in which proceedings can therefore be issued is two days before the relevant anniversary date since the proceedings stand extinguished at 12:01am on the date before the relevant anniversary.

Poole v. O’Sullivan holds that if on the date the proceedings would be statute barred, the relevant court office is closed, it is presumed that the Oireachtas intended the limitation period be extended to the next time the relevant court office is open.

Other statutes providing for limitation periods

Other statutes provide for time limits and although the Statute of Limitations contains the normally most applicable statutory limitation period, there are some separate time limits in discrete pieces of legislation, for example;

Claims in respect of international conventions in relation to international travel or freight (such as the Montreal Convention or Athens Convention) have their own limitation period and it is a separate time limit to the Statute of Limitations and for which minority does not stop the limitation period running.

Section 9 of the Civil Liability Act 1961 provides that a claim against the estate of a deceased person can only be brought within two years of the death and section 117 of the Succession Act 1965 provides that proceedings under that section can only be brought within six months of the grant of probate issuing. Again these time periods are not stopped by minority or disability.

Section 46 of the Civil Liability Act 1961 provides a one year limitation period for damage from the collision of ships.

Section 195 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 provides in relation to proceedings for qualified cohabitants that they issue within two years of the end of the relationship.

In conclusion…

The Statute of Limitations is an important defence to a claim or a factor to consider when issuing proceedings. It is important as a Plaintiff it is considered to ensure that the entitlement to sue is not lost by the passage of time, or as a Defendant as an appropriate defence.