statute barred or not

pk82

X owes Y an amount of money.

Let this amount = A

A is made up of a statute barred part 'B' and a not statute barred part 'C'

Thus A=B+C

X does not pay Y any money.

Y issues a summons for the amount C only , which X then pays

Can Y now claim that the payment of C can be construed as a part payment of the total amount A and thus argue that amount B is no longer statute barred ? - thus now allowing Y to sue X for B

Farcear

I would think not.

The construction argument fails because, as you say, this summons clearly stated it was for monies not statute barred.

Tom Young

S. 56 and 65 of the Statute of Limitations Act 1957 should be referenced re. Acknowledgement and Part payment of debts, re-starting the clock/fresh accrual rights on Statute.

www.irishstatutebook.ie

6 years is the normal time for contract debt/s.

Tom

NoQuarter

I am almost sure you can do this although I cant find the authority for it. I'll keep looking.

jblack

It will also depend on what gave rise to the debt.

For example:

An engineer conducts two surveys on a house, both mutually exclusive; one five and half years ago the other over 6.

The debts cannot be said to be linked unless there is an agreement/understanding to roll them up into one amount.

Therefore the limitation period will mean no recovery for the older fee.

A second example would be an engineer conducts professional services for an employer throughout the life of a building project - the first fees arise over 6 years ago in for, let's say tender services, and the last fee sneaks in just under the 6 year period. Can he claim for all fees related, even those raised over 6 years ago? Answer in short is yes as the there is an ongoing obligation to discharge the fees and once the latest date is within the limitation period then all fees related are within time.

Procrastastudy

Okay sorry if this is OT but a question if I may?

Assuming you could do this by getting someone to acknowledge the debt - would it be against any professional code of conduct? I realise being a sneaky so-and-so can be an advantage but would this be taking it a step to far in trying to end run round a statute?

I suppose the adversarial system comes into play here with the notion of 'should have ad a better solicitor'. Would getting your client into this mess be considered negligent?

jblack

GCDLawstudent wrote: »

Okay sorry if this is OT but a question if I may?

Assuming you could do this by getting someone to acknowledge the debt - would it be against any professional code of conduct? I realise being a sneaky so-and-so can be an advantage but would this be taking it a step to far in trying to end run round a statute?

I suppose the adversarial system comes into play here with the notion of 'should have ad a better solicitor'. Would getting your client into this mess be considered negilent?

I don't see the relevance of being properly advised. Acknowledgement of debts are not something within the exclusive provenance of a solicitor, in fact I have often seen far "smarter" methods of keeping the clock alive and negating future defences or set-off included in suppliers' order forms and correspondence.

pk82

jblack wrote: »

I have often seen far "smarter" methods of keeping the clock alive and negating future defences or set-off included in suppliers' order forms and correspondence.

'Smarter methods'

Can you describe these in more detail?

jblack

pk82 wrote: »

'Smarter methods'

Can you describe these in more detail?

I'll give you one but this is not legal advice as in order for it to be effective you would have to incorporate the particular methods of dealings of the parties, their mutual understanding of arrangements and a litany of background fact, all of which I will not offer.

Along with a schedule and several other clauses -
"....acknowledges by acceptance of .... that all amounts previously due now fall due on .... and not right of set-off, abatement or counter claim apply.."

Standard enough but, in the particular circumstances, resets the limitation clock everytime there is an order and this applies to all amounts no matter how old.

pk82

Do not overlook the main problem here. Does the issue of the Summons for C negate the ability to sue for B where:

Total Amount owed A= B+C where B is barred, C is not

A summons for the amount of C ALONE is issued and paid.

Assume that B and C were invoiced together

It will also depend on what gave rise to the debt.

Assume ongoing maintenance in a domestic house setting but no explicit 'roll up' agreement or such like.



Looking at the 1957 Act:

65.—(1) Where—

(a) any right of action has accrued to recover any debt, and

(b) the person liable therefore makes any payment in respect thereof,

the right of action shall be deemed to have accrued on and not before the date of the payment.

So looking at this on the face of it, it WOULD seem that if ANY payment is made, the time starts afresh.

BUT:

69.—(1) Where—

(a) there exists a number of debts, and

(b) the person liable therefor (in this section referred to as the debtor) makes any payment, whether on account or generally, to the person to whom he is liable (in this section referred to as the creditor), and

(c) neither the debtor nor the creditor appropriates the sum paid to any particular debt or debts,

the following provisions shall have effect:—

(i) if some of or all the debts are not statute-barred debts, the payment shall, for the purposes of this Chapter, unless the circumstances in which it was made indicate otherwise, be deemed to be appropriated pari passu in respect of each of the debts which are not statute-barred debts;

(ii) if all the debts are statute-barred debts, the payment shall, for the purposes of this Chapter, unless the circumstances in which it was made indicate otherwise, be deemed to be appropriated pari passu in respect of each of the debts.

So here it would seem that where the case as outlined exists (Summons for C only) one CANNOT subsequently sue for B as it HAS (contrary to section 69 (1) c above ) been explicitly appropriated to a debt i.e. those dates which were not barred

Opinions?