Limitation periods

A limitation period is the time period during which a person must commence an action against another if that person's claim is to succeed in court. If the action is commenced after the limitation period has expired, the claim will fail unless the particular limitation period is one, which may be extended or does not apply in the circumstances of the case. Otherwise, the defendant, that is to say, the person against whom action is being taken, has nothing more to say, as his or her defence, than that the time limit for bringing the action has expired.

Against government

Take, for example, the case of Romulus, a Public Works caterpillar operator whose leg had to be amputated as a result of an accident which occurred while he was on the job. Romulus was not to blame. The accident took place on Christmas Eve 1997 and as soon as it happened, he could see that his leg had been very badly injured. On the day after Boxing Day, that is, the 27th of December he sent word of the accident to his boss who in turn passed the information on to the Ministry for further action. A week later Romulus lost his right leg. Letters then flowed between him and the Ministry during the course of which he received a fortnightly pension and was promised further compensation. On the 24th of December 1998, exactly one year after the accident took place, Romulus received a letter stating the amount of his gratuity. After more than 20 years of back-breaking caterpillar work, he cannot make a living again, and that small amount!! He now wants to sue the Government for damages for the personal injuries suffered as a result of Public Works negligence, and seeks legal advice.

Unfortunately Romulus' claim will most probably fail. This would be so by virtue of current legislation. Under section 2 (1) (a) of the Public Authorities Protection Act the limitation period for commencing action against a person executing a public duty is 6 months. And, by virtue of Sections 17 to 19 of the Law Reform (Miscellaneous Provisions) Act, the 6-month period is to begin either on the date on which the cause of action occurred or the date, if later, on which the victim had knowledge of the cause of action. Date of knowledge means the date when the person taking the action first knew, among other things, that the injury was significant and that it was caused by the would-be defendant. In Romulus' case the cause of action, namely, the accident causing damage to his leg, occurred on the 24th of December 1997. At the time he had knowledge of the damage. Hence, the limitation period commenced on that date and came to an end 6 months later, on the 23rd of June 1998. Further, in Romulus' case there are no provisions in our laws for extending or excluding the 6-month time limit. In these circumstances had Romulus' action been filed on the 23rd of June, and the proper procedure had been followed, the court would have entertained his claim. Thereafter his action would be, in the language of the law, statute –barred.

Against private persons

The limitation period in matters in which the State of Dominica is not a defendant is, as a rule, longer. For example, in an action on a simple contract it is 6 years and, where the contract is registered, 12 years. In the case of fatal accidents, it is 3 years after the date of the victim's death, or knowledge of it by the plaintiff. In an action to recover arrears of rent, it is 6 years after the arrears become due. In cases where personal injuries occur as a result of negligence or breach of some duty, it is 3 years from the date the cause of action took place or from the date the injured person had knowledge of the cause of action. In the event the injured party dies before this period expires, his or her estate may commence an action within 3 years after either the date of death or the date on which the deceased's personal representative gets knowledge of the death, whichever is the later. A claim for recovery of land by the state or a corporation or charitable body may legitimately be made after 30 years from the date when the right of action comes into existence. By contrast, the limitation period for recovery by other persons is 12 years. As to an action by a moneylender to recover money lent or interest on such money, the time limit is 12 months. A bank or other lending institution may recover monies loaned on the security of property within 12 years after the right to recover the money came into existence. And it has the same time limit within which it may commence action to take over the property. In motor vehicle cases the limitation period is 6 years, provided no claim is made for personal injuries but, as indicated above, it is 3 years when such a claim is made. And, where a defendant has not honoured a judgment of the court, the plaintiff has a time limit of 6 years within which to seek enforcement of the judgment.

As a general rule, these ordinary time limits do not apply in a number of situations. One is where the plaintiff, that is to say, the person bringing the action, is under a disability such as being an infant, or of unsound mind. In that event the limitation period is extended from 3 years to 6 years. Another is where, in case of a claim for repayment of a debt, the defendant has acknowledged that he or she owes the plaintiff or has paid him or her part of the debt. Here, the period is altered from 6 years after the date on which the cause of action took place, to 6 years after the defendant acknowledged or made part payment of the debt. A third is where the defendant has acted fraudulently, or where the action seeks relief from the consequences of a mistake. In both cases the time limit is 6 years from the time when the plaintiff actually discovers the fraud or mistake or should reasonably have discovered it. As to the fourth, the Court as a rule has discretion to exclude time limits in matters relating to personal injuries or death caused by civilians.

Further, there are a few matters in respect of which there is no period of limitation. This means that an action may be commenced at anytime. Two of these come to mind. One relates to applications to settle property dispute between man and wife. The other is in respect of claims for injunctions.

All these periods of limitation refer to civil matters, that is to say, matters that are not criminal. And they are in respect of actions taken in the High Court. As to civil matters in the Magistrate's Courts, in all cases the limitation period is as a general rule 6 years after the grounds of the claim arose. But where the would-be defendant acknowledges fault, gives the affected party an undertaking to settle or promise to pay, the 6 year-period commences from the date of such acknowledgement, undertaking or promise. It is important to bear in mind that an action is commenced only when a legal document is filed in the court. It is not commenced by the making of telephone calls or the issue of letters between plaintiff and defendant. In fact, a normal practice of would-be defendants is to write encouraging letters offering to settle in due course with the plaintiff, in the hope of prolonging such correspondence beyond the time limited for commencing action in the courts. It should be noted that so long as an action is commenced within the limitation period it does not matter how much time elapses before the case is finally heard and judgment pronounced. You should note, further, that at any time before judgment is pronounced a matter may be discontinued in court if the parties agree to settle out of court. It is advised, therefore, that as soon as a cause of action has occurred or the plaintiff has gained knowledge of it, immediate steps should be taken so as to guard against the matter becoming statute-barred. Once this is done, the affected party can write a thousand and one letters to the other party and receive a similar number in return. There is no harm in this because, should efforts at settlement fail, the matter would proceed to hearing. Had Romulus adopted that approach, his future might have been different.

© William Para Riviere, 1999

(Dr William "Para" Riviere is an Attorney-at-Law)