IMAGINE being sued for an action which occurred 30 years ago. The law recognises the injustice that may arise if a defendant is called upon to answer a claim with its genesis in the remote past.

It is generally accepted and understood that the passage of time can adversely impact the ability of a party to mount a solid defence due to factors such as key witnesses passing or moving away, memories failing, important documents or other records becoming lost, or the characteristics of a particular geographical area changing. The effect of these factors cannot be overstated, particularly in the context where the outcomes of cases often turn on ostensibly minute details or on the tribunal’s assessment and opinion of a witness’ credibility.

In the case Donovan v Gwentoys Ltd [1990] 1 WLR 472, at page 479, Lord Griffiths succinctly outlined that, “The primary purpose of the limitation period is to protect a defendant from the injustice of having to face a stale claim, that is a claim with which he never expected to have to deal.”

It is therefore unsurprising that in Jamaica actions founded in tort cannot be brought after the expiration of six years from the date on which the cause of action accrued. Examples of such actions are claims for breach of contract, trespass, property damage, personal injury and wrongful death, to name a few.

It is of note that there are statutory provisions which provide for shorter limitation periods in relation to other causes of action such as actions for wrongful dismissal, division of matrimonial property, and defamation.

Where an action is not brought within the relevant limitation period it is commonly referred to as being “statute barred”, meaning that it is no longer legally enforceable. This provides the would-be defendant with a generally unassailable defence against the subject action. In International Asset Services Limited v Edgar Watson, Dukharan JA, at paragraph 15 stated that “… Under the [Limitation of Actions Act], a matter that is statute barred will have no prospect of success at trial and is therefore an abuse of the process.”

That is generally an uncontroversial statement of the law, unless the estate of a deceased person is the claimant. In The Attorney General v The Administrator General of Jamaica (Administrator of the estate of Elaine Evans, deceased) SCCA No 11/2001, the Court of Appeal made the following statement:

“Therefore the standard limitation period of six years for torts is applicable for actions vested in her [the deceased]. Since the action is for the benefit of the estate, time begins to run from the time letters of administration were granted.”

This statement has been cited repeatedly in subsequent judgements wherein the representatives of estates have brought actions against defendants after the expiration of the limitation period, counting from the date the cause of action arose.

The rationale given is that the administrator of an estate can only bring an action for the estate after they are appointed, so it is only reasonable that the time runs from the date of appointment. While there is merit in that position, it does not sufficiently contemplate the purpose which the limitation period serves and the unreasonable outcomes which may ensue. There is no time limit on when an administrator ought to be appointed for an estate and therefore it is not improbable that instances will arise where decades pass before this action is taken. This is a reality that legal practitioners can attest to.

Such a delay would be unfair and, dare I say, rises to the level of being an injustice to the defendant. It having been initially contemplated that it would be prejudicial to have a potential claim hovering over an individual for more than six years, how much more prejudicial will twenty-five years be? This is concerning because tribunals below the Court of Appeal are constrained to apply this precedent to the cases before them and have little to no room to apply their discretion to prevent an absurd outcome. At times the only consolation which can be offered is the granting of leave to appeal.

What is very surprising is that no interested party has yet taken any steps to have the matter reconsidered by either the Court of Appeal or the Privy Council. It may be that the judgement sums awarded in these matters have not yet become significant enough to persuade such action. Time tells all, however until then persons and entities ought to be aware of both the positive effects for estates and the possible consequences for would-be defendants. One can never tell which hat they may be required to wear, however if you find yourself in either position you should contact an attorney-at-law for advice.

Daniel Gyles is an associate at Myers, Fletcher & Gordon and is a member of the firm’s Litigation Department. Daniel may be contacted via Daniel.Gyles@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.