Jamie ( or others)

Do  you have a view about the HRA short limitation periods, or indeed

changing our discretionary approach to a limitation act one?  My sense is

that perhaps we are best to leave some kind of discretion as the HRA does,

in line with public law generally ? That there may be a number of very good

reasons for delay in filing the damages procedings, not least of which is

trying to get other forms of public redress.

Geoff

________________________________________

From: James Lee

Sent: 05 August 2009 10:14

To: Geoff McLay

Subject: RE: New Limitations law in New Zealand

Dear All,

Thanks to Geoff for bringing this to our attention. Just as a footnote to

the proposal concerning the Bills of Rights Act: The Law Commission for

England and Wales's recent Consultation Paper on Administrative Redress,

which proposes many things about the relationship between private and public

law, had this to say on limitation periods at para 4.206:

"At present, an application for judicial review must be made promptly and in

any event not later than three months after the grounds for the claim first

arose.175 Time may be extended, if good reasons exist. For actions in tort,

the general rule is that actions must be brought within six years,176 or

three years if the claim

involves personal injury.177 We are not proposing any changes to these

limitation periods. It is suggested that the action in public law would be

subject to the same limitation period as other judicial review cases and

that the action in private law be subject to a similar limitation period as

similar tort actions.

175 Civil Procedure Rules, r 54.5(1).

176 Limitation Act 1980, s 2. Note that an overriding time limit of fifteen

years applies to claims

in negligence which do not involve personal injury: s 14B.

177 Above, s 11."

For claims by victims against public authorities who have acted in a way

which is incompatible with a Convention right under the Human Rights Act

1998, s.7(5) of the Act applies:

"Proceedings under subsection (1)(a) must be brought before the end of-

(a) the period of one year beginning with the date on which the act

complained of took place; or

(b) such longer period as the court or tribunal considers equitable having

regard to all the circumstances,

but that is subject to any rule imposing a stricter time limit in relation

to the procedure in question."

Incidentally, since I mention the Law Commission, colleagues may be

interested to know that Sir James Munby, whose judgments will be familiar to

some members of this list (Commerzbank Ag v Price-Jones [2003] EWCA Civ

1663, for example), has been appointed as the new Chairman of our Law

Commission: http://www.lawcom.gov.uk/docs/Munby_appointment.pdf.

Best wishes,

James

--

James Lee

Lecturer

Director of the LLB Programme

Birmingham Law School

University of Birmingham

Edgbaston

Birmingham

B15 2TT, United Kingdom

Tel: +44 (0)121 414 3629

E-mail: j.s.f.lee@bham.ac.uk

________________________________________

From: Geoff McLay [Geoff.McLay@vuw.ac.nz]

Sent: 05 August 2009 00:09

To: obligations@uwo.ca

Subject: New Limitations law in New Zealand

Dear all

Something happened yesterday never thought I would see actually happened.

Two decades after the Law Commission first recommended wholesale reform of

New Zealand Limitations Act 1950,  Parliament gave the first reading to a

new Limitations Bill. Up until yesterday Parliament had resolutely refused

the pleas of Judges to deal with what has become an impossible mess as

advocates have tried to fit within the structures of the old English

limitations regime, new problems over sexual abuse claims and claims for

economic loss under the rule in Hamlin.

For the first time New Zealand is to have its own indigenous limitations

regime.  New Zealand lawyers will no longer be able to rely on outdated

English textbooks to resolve thorny issues of balancing the rights of

plaintiffs to be heard and defendants to have certainty.  The most radical

proposal is the removal of "accrual of the cause of action" as being the

beginning of limitation period, which can give vastly different results

depending on whether one has a tort claim or a contract claim.  There is to

be a single rule  which makes the start date, the time of the act or

omissions that give rise to the claim. One of the prime drivers for New

Zealand courts accepting that there might be concurrent liability in tort

and contract is now to be removed.

 For the first time fiduciary claims will be caught by the strictures of the

Limitation act rather than by the more generous application of the doctrine

of laches.  This might also be of some controversy to those who see equity

as protecting a kind of vulnerability that makes a more discretionary

approach to limitations more desirable.  Certainly it ought to be the

subject of submission in select committee. There will no longer be an

advantage in trying to convince the Court that there was a fiduciary aspect

of the claim simply as a way of getting around the limitation period might

apply to a tort claim.

The limited fix of "reasonable discoverability" that New Zealand Courts have

employed and economic loss cases, and to some extent sex abuse cases, to

deal with injustices of plaintiffs being unaware of the damage that they had

all the suffered, or unable to do anything about that harm, is to be

replaced by a concept of " delayed knowledge" ( including where the

plaintiff ought to have reasonably known) which can allow a period to be

extended by further three years from the date of that knowledge.  There is

to be a maximum long stop period of 15 years which will bar almost all

claims.  One exception is to be sexual abuse claims that are subject to

their own discretionary regime, somewhat modeled on what now exists in the

United Kingdom.  Plaintiffs and those cases in particular would be saved the

rather harrowing effort to satisfy the somewhat odd test currently employed

by the New Zealand courts.

Other potentially significant aspects of the reform is that claims under the

New Zealand Bill of Rights Act would be subject to the same regime as other

claims.  Previously the New Zealand Court of Appeal had held that it

preferred to analyse the claims are discretionary Sugrue (P F)Ltd v Attorney

General [2004] 1 NZLR 207 (CA).  Amongst rights advocates this will no doubt

generate some controversy -   As might the note in the "impact" statement:

Government as litigant: Government will benefit from greater clarity in this

area in the same manner as other litigants. The introduction of a 6year

limitation period for certain public law compensation claims will provide

certainty and will encourage claimants to take action diligently.

Government as administrator of the courts: There may also be costs savings

if courts are able to dispose more efficiently of claims where limitation is

an issue. There may be some reduction in cases I plaintiffs and defendants

are more readily able to determine how the limitation defence affects their

claim. It is not possible to estimate these savings as there is no

information about the number of cases where limitation is presently an issue

and no means of quantifying the potential impact on litigation decisions.

The bill can be found at

http://www.parliament.nz/en-NZ/PB/Legislation/Bills/9/2/4/00DBHOH_BILL9236_1

-Limitation-Bill.htm