Limitation periods, which vary depending on the nature of the claim, create timeframes in which action must be taken.
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Failure to bring a claim "in time" carries a real risk that an otherwise valid claim will be declined by the court.
For example, an employer who has dismissed an employee should not still be worried that their employee may make a claim five years after the event.
Alternatively, someone who has applied to the court for a property order should have certainty after a set time as to whether the claim will or will not be defended.
All too often we must tell parties that, if they had contacted us sooner, we could have helped them, but that their claims are, unfortunately, now out of time.
Sometimes, mercifully, we advise that although there is a very strong claim against them based on the merits of claim, the claim made is time-barred and they no longer have any liability in respect of that claim.
Limitation periods are both a blessing and a curse to litigants and just one day can mean the difference between having a successful claim or not. It really is a case of "if you snooze, you lose".
Broadly speaking, the majority of claims have a six-year primary limitation period eg. recovery of money and other breach of contract claims.
This time period will generally begin to run from the date the claim arose, or in some cases when you ought reasonably to have known that you had a claim.
However, there are numerous exceptions to this general limitation period.
By way of example only, employees only have 90 days to raise a personal grievance, and beneficiaries are limited to 12 months to make a claim against a deceased's estate.
And, to make it really confusing, sometimes claims relating to the same subject matter have different limitation periods.
For instance, in relationship property claims parties in a de facto relationship have three years to file a claim from the date that the relationship ended. Meanwhile, spouses have one year to make a claim from the date of the dissolution of marriage (date of divorce).
Of importance too is that once a claim is made, there are important timeframes periods set for responding to claims.
Depending on the type of claim, defendants are given a set timeframe in which they must file a defence to that claim.
These time periods are often only a matter of weeks and require a great deal of work to be done in that time, including giving advice on available defences, interviewing witnesses and experts, swearing affidavits and drafting substantive responses.
Every day that passes can become critical, and the sooner you see your lawyer after being served with proceedings the better.
Further, the more time your lawyer has to address the claim, the more chance there may be of resolving the claim with the other party without the time, cost and uncertainty typically associated with the court process.
Despite the importance of limitation periods and timeframes imposed by the court process, if you do find yourself out of time, all may not be lost. Depending on the type of claim, you may have an opportunity to file your claim out of time.
However, typically you will need to have a convincing explanation for the delay to persuade a court that you should be indulged by being given more time than the law and rules of court allow.
As with all legal matters, it is essential that you act promptly, see your lawyer as soon as possible and make sure that you will not be caught out by a simple miscalculation of dates.
