Does a Closed Court Office mean a Closed Case? COVID-19 and the Statute of Limitations
Time continues to tick for the Statute of Limitations during COVID-19. In this article we consider previous guidance from the High Court and what might be next in terms of legislative change.

New Innovations in Conducting Litigation

It is now more necessary than ever to consider new innovations in the way we work. The Courts Service of Ireland along with each of the Presidents of the Superior Courts recently announced that testing of remote hearing facilities to ensure business continuity will begin in late April. This is in addition to measures announced including accepting consent adjournment applications by email, delivering judgments and dealing with administrative case management matters electronically as much as possible. 

Time Still Ticking for Limitations

Despite this agility, an issue yet to be tackled is the fact that time continues to run.  In litigation time begins to run from when the harmful event occurs. The Statute of Limitations Act 1957 imposes various limits so that after a prescribed period the action will be statute barred. The Central Office of the High Court remains open, by appointment, to facilitate the making of applications for essential business only. One of the matters listed as "essential business" is the issuing of proceedings where the statutory time limit of the action will expire before Tuesday, 14 April 2020. Where time limits expire after this date, there is currently no guidance. With the nationwide lockdown extended to 5 May 2020 the question of how the courts will operate remains. 

For the moment the key is to ensure that any potential claims where the time limit is soon to expire are issued as soon as possible by way of appointment through the Courts Service. However, what is the position if there is a partial or total closure of the courts? Will time continue to run while the court may be closed resulting in a potential plaintiff being statute barred from bringing an action?

Interpreting the Period of Time

In the case of Poole v O'Sullivan [1993] 1 IR 484 the time limit on an action had expired thus statute barring the plaintiff from bringing his action. The Central Office of the High Court was not open on the day the statute expired, which in this case was a weekend. The Summons was issued on the Monday the 9th of July 1990. The Courts held that since the plaintiff was unable to set the action in motion that the period in the Statute of Limitations Act should be interpreted as ending "on the next day upon which the offices of the Court are open and it becomes possible to do the act required".

While a legislative amendment is the only way to ensure legal certainty around time limits, for now this judgment provides some guidance. As such it should be noted that should a court office closure become an obstacle in bringing an action during the limitation period, precedent provides that the Statute of Limitations should be construed as pausing and only running on days where the office is open. 

Procedural Considerations

The issue of statute is not a bar to issuing proceedings in the first instance. However, the issue of whether the proceedings are statute barred, will be raised as a defence to the proceedings. This is usually raised by the defendant in a preliminary application before the substantive action is heard. 

Should you find yourself close to the expiry of the statute, consent could be sought from the defendant that it will not raise the statute as a defence (sometimes referred to as a standstill/tolling agreement). A refusal by a defendant to agree such an arrangement in the current circumstances could, in and of itself, be used to counter a preliminary application regarding the issue of statute. 

Possibility of Amending Legislation?

The Law Society of Ireland has made recommendations that a legislative amendment be added to resolve this potential minefield. A proposed amendment to the Statute of Limitations, was put down by Jim O’Callaghan TD in terms that were supported by the Law Society of Ireland but was ruled out of order by the Ceann Comhairle in advance of debate on the Emergency Measures in the Public Interest (COVID-19) Bill 2020. 

The Law Society of Ireland continues to press for an amendment to the Statute of Limitations given the current situation. While it is advisable to always bring an action long before time limits run out, some comfort can be taken from the decision in Poole in circumstances where proceedings cannot issue because the Courts Service is closed.  

 

Contributed by Gráinne Varian

 

Twitter

 

Follow us @WilliamFryLaw

 

Key Contacts

Lisa Carty Partner

Owen O'Sullivan Partner

Related Practice Areas