Limitation Act 1980

Kotek Besar

Just a question for those in the know..

The Limitation Act 1980, in the UK, states that if a 'debtor' has made no payment towards, or written acknowledgment, of the 'debt' for a period of 6 years (five in Scotland) then that 'debt' would fall within the terms of the 'Limitation Act 1980', meaning that once the debtor informs the creditor, or DCA, that he will no longer be paying the debt as it is 'Statute Barred' (the only reason he need give), then that debt can no longer be pursued through the courts and the creditor/DCA should cease all attempts at collection.

Question is, does the same / similar law exist in the Republic of Ireland?

Victor

Statute of Limitations 1957, as amended.

I don't think there is a requirement to give notice.

Our man in Havana

Well the debtor would normally give the creditor notice that the debt is statute barred when he tries to enforce thru the courts.

dermot_sheehan

Statute of Limitations 1957 is a defence

So the debtor would plead the statute in a defence in court proceedings.

Kotek Besar

gabhain7 wrote: »

Statute of Limitations 1957 is a defence

So the debtor would plead the statute in a defence in court proceedings.

So it would still go to court then?

Spike440

It would be put in writing by the defendant's solicitor, but the creditor may still pursue it. If he did, it would be the first thing stated in the Defence.

The matter can still go to court because there a number of ways the limitation period may be disregarded. If it is not pleaded for example. Or if there has been part payment. Or if there are two debts, one statute-barred and one not, and payment is made but not specified for which debt, the statute assumes that it is payed towards the earlier one. There are also some circumstances when mistake can result in the limitation period not running AFAIK.

Kotek Besar

Spike440 wrote: »

It would be put in writing by the defendant's solicitor, but the creditor may still pursue it. If he did, it would be the first thing stated in the Defence.

The matter can still go to court because there a number of ways the limitation period may be disregarded. If it is not pleaded for example. Or if there has been part payment. Or if there are two debts, one statute-barred and one not, and payment is made but not specified for which debt, the statute assumes that it is payed towards the earlier one. There are also some circumstances when mistake can result in the limitation period not running AFAIK.

I see, thanks. Seems quite different from the UK equivalent then, which is pretty clear cut and doesn't require court.

Spike440

I imagine that such a provision would be a violation of Article 34 of the Constitution. In any event, a creditor would have a right to have the court determine if the limitation period has actually expired or if one of the exception applies.

Our man in Havana

I think the difference is that here the creditor is more likely to go to court than the in the UK. Also the creditor has nothing to loose by persuing it.

Spike440

Bond-007 wrote: »

Also the creditor has nothing to lose by pursuing it.

The case? Costs?

dats_right

I think from a practical point of view that it is highly unlikely (i'm being polite) that a plaintiff would actually pursue a case against a debtor where it was statute barred. Okay, technically the debtor would have to plead it in his defence but that is academic as no sane plaintiff would bother inititaiting proceeedings unless there has been part payment or an acknowledgemnet of the debt within the limiation period. Because, if they did they would lose the court action and in addition to incurring their own legal costs would also be liable for the debtors.

Our man in Havana

You could get a clueless debtor.

Could a judgement be overturned later on if it was discovered to be statute barred?

Spike440

Bond-007 wrote: »

You could get a clueless debtor.

Could a judgement be overturned later on if it was discovered to be statute barred?

No, limitation must be pleaded as a defence.

You could sue your solicitor for negligence though. That happens quite often.

johnnyskeleton

I wonder, if you told the debtor that you wouldn't be paying the debt because it is statute barred, would that constitute an acknowledgement of the debt?

Our man in Havana

It would but if it was more than 6 years past it would not matter.

johnnyskeleton

Bond-007 wrote: »

It would but if it was more than 6 years past it would not matter.

Doesn't the time run from the date of the debt or the date of the last acknowledgement of it? So by acknowledging the debt the time starts again. Or is it that once statute barred always statute barred?

Our man in Havana

Or is it that once statute barred always statute barred?

I would think so. In any defence the debtor would state it is statute barred. That would not reset the clock. So once the 6 years are up it is statute barred and it stays that way.

johnnyskeleton

Bond-007 wrote: »

I would think so. In any defence the debtor would state it is statute barred. That would not reset the clock. So once the 6 years are up it is statute barred and it stays that way.

No, but if they went up to the creditor and said "hey, I no longer owe you that money" would that not constitute an acknowledgement?

Spike440

Section 56 of the Act provides that the acknowledgement must be made in writing and signed debtor.

Tom Young

Yeah, so what JS says could amount to acknowledgement albeit it negative. So my impression is that the SOL clock can re-start.

Two items of relevance in Ireland being: Acknowledgement and/or part payment of the debt due.

Tom

Kotek Besar

What about:

"I do not acknowledge the alleged debt to which you refer. However, if the alleged debt were to exist, it would be Statute Barred, in accordance with the Statute of Limitations 1957."

?

Our man in Havana

I would add to it:

"If you believe that the alleged debt is not statute barred, please start legal proceedings within 14 days. In the absence of such proceedings being issued I shall consider the matter closed."

dats_right

Bond-007 wrote: »

You could get a clueless debtor.

Yes, and I suppose it is possible that little green men will land in the Phoenix Park tonight! But, I'd like to intriduce some reality to this discussion, absolutely no solicitor is going to advise their client to pursue an action to recover a debt that is going to be deemed statute barred.

Spike440 wrote: »

You could sue your solicitor for negligence though. That happens quite often.

I certainly wouldn't say it happens often, but does sometimes occur when a plaintiff's solicitor misses the statute date through mistake or inadvertance when initiating proceedings, usually this would happen in cases such as fatal injuries actions or somesuch where there is a shorter limitation period.

However, it is inconceivable and would be a virtual impossibility for a solicitor not to plead it in defence in a case where it is applicable and available. I don't think this has ever happened and to be honest I think it is more likely and easier for a solicitor to forget to wear his trousers to work for week then to forget to plead the statute.

Bond-007 wrote: »

So once the 6 years are up it is statute barred and it stays that way.

Wrong. See below.

johnnyskeleton wrote: »

Doesn't the time run from the date of the debt or the date of the last acknowledgement of it? So by acknowledging the debt the time starts again.

Yes, this is correct per section 56 (1) of the Statute of Limitations Act 1957:"Where—( a ) any right of action has accrued to recover any debt, and
( b ) the person liable therefor eacknowledges the debt,
the right of action shall be deemed to have accrued on and not before the date of the acknowledgment.

This means that an ackowledgment of an otherwise statute barred debt restarts the clock afresh. A simple example would be where X owes Y €10,000from 1995, it should become statute barred in 2001, but if X acknowledges the debt in 2004 then the clock starts ticking again and it will not become statute barred until 2010.

Tom Young wrote: »

Two items of relevance in Ireland being: Acknowledgement and/or part payment of the debt due.

Correct.

Kotek Besar

dats_right wrote: »

..This means that an ackowledgment of an otherwise statute barred debt restarts the clock afresh. A simple example would be where X owes Y €10,000from 1995, it should become statute barred in 2001, but if X acknowledges the debt in 2004 then the clock starts ticking again and it will not become statute barred until 2010..

I guess this is one of the key differences between the UK and Irish Statute Barred laws.

Victor

dats_right wrote: »

But, I'd like to intriduce some reality to this discussion, absolutely no solicitor is going to advise their client to pursue an action to recover a debt that is going to be deemed statute barred.

What if the creditor wanted to embarrass the debtor (for whatever reason). Or would that head in the direction of a malicious claim / abuse of process?

dats_right

Victor wrote: »

What if the creditor wanted to embarrass the debtor (for whatever reason). Or would that head in the direction of a malicious claim / abuse of process?

More like embarrassing themselves! Malicious prosecution is not realistic either.

Okay, it is really very, very simple, in the real world if a creditor is serious about recovering a debt they will without exception initiate proceedings within the limitation period. But, if due to an oversight or whatever they don't initiate proceedings within the limitation period ,they will not initiate proceedings (unless part payment or ackowledgement) and will "write off" the debt.

No plaintiff is going to bring court proceedings that they are guaranteed to lose. Because, 1. they will have to pay their own legal costs 2. they are going to have to pay the debtors solicitors and barristers fees (salt and wounds come to mind). In fact, if somebody tried to bring proceedings that are clearly statute barred against me, I would instruct the most expensive solicitors and barristers available safe in the knowledeg that the plaintiff is going to be paying for the pleasure.

Our man in Havana

Generally most debtors are not represented in court and creditors get default judgements.
Some creditor might just take a punt on the defendant not filing a defence or showing up. If the defendant were to file the statute barred defence, the creditor could withdraw without penalty.