Statute of limitations

susieshoes2

Hi

I have a hypothetical question about statute of limitations. I am confused by the wording. This is a hypothetical scenario.

If I discover a fraud and wish to sue for the Tort of deceit. The time accrues when I first discover the fraud.

Yet it has been 3 years since discovery of the fraud, therefore how long have I got to take the action (tort) from the time I discover the fraud.

It is not a contract. It is a tort of deceit or injurious falsehood. Is it 3 years or 6 years or 2 years.

Thank you

Peregrinus

Fraud works as an exception to, or extension of, general limitation periods.

No limitation period applies to an action against a trustee (or person claiming through a trustee) if "the claim is founded on any fraud or fraudulent breach of trust" - Statute of Limitations 1957 s. 44.

Simalarly, there is no limitation period for an action against a personal representative (e.g. the executor of an estate) where the claim is founded on fraud - s.46.

For other actions, if the action is based on fraud or the right of action is concealed by fraud, the limitation period doesn't begin to run until the fraud comes to light - s. 71. But in that case you can't pursue your action to chase property which the fraudster has sold, and recover it from some innocent third party who has bought it. Your only claim is against the people actually involved in, or who had knowledge of, the fraud.

susieshoes2

Peregrinus wrote: »

Fraud works as an exception to, or extension of, general limitation periods.

No limitation period applies to an action against a trustee (or person claiming through a trustee) if "the claim is founded on any fraud or fraudulent breach of trust" - Statute of Limitations 1957 s. 44.

Simalarly, there is no limitation period for an action against a personal representative (e.g. the executor of an estate) where the claim is founded on fraud - s.46.

For other actions, if the action is based on fraud or the right of action is concealed by fraud, the limitation period doesn't begin to run until the fraud comes to light - s. 71. But in that case you can't pursue your action to chase property which the fraudster has sold, and recover it from some innocent third party who has bought it. Your only claim is against the people actually involved in, or who had knowledge of, the fraud.

If fraud works as an extension to general limitations. Than perhaps my question should be how long is the limitation for injurious falsehood and deceit and negligence after the discovery of fraud.

Is it 6 years or 3 years, I am having a hard time nailing this one down. I know personal injury is 2 years and there is a bill to try extend that to 3 years which seems fair.

This is neither contract nor property related.

I was reading John O Meara's book on systemic fraud and the failings of the Irish statute of limitations in certain area's...and of course the theft and fraud act.

For example he states that a discovery of a mistake in section 72 of the 1957 statute limitations does not accrue from discovery of the mistake but actually from the time the incident occurred. Hence there is no magic statute extension for a mistake discovered in negligence when it boils down to it.

Peregrinus

What you report O'Meara as saying seems, on the face of it, to flatly contradict s. 72. I have no idea why O'Meara says that or what authority he relies on, but you have the advantage over me since you have read the book. Presumably O'Meara explains why he thinks s. 72 doesn't have the effect that, on the face of it, it seems to have. Ask yourself two questions. First, do you agree with, or are you persuaded by, O'Meara's view? Secondly, given the basis for O'Meara's view, would it apply equally to s. 71 and s. 72?

susieshoes2

Peregrinus wrote: »

What you report O'Meara as saying seems, on the face of it, to flatly contradict s. 72. I have no idea why O'Meara says that or what authority he relies on, but you have the advantage over me since you have read the book. Presumably O'Meara explains why he thinks s. 72 doesn't have the effect that, on the face of it, it seems to have. Ask yourself two questions. First, do you agree with, or are you persuaded by, O'Meara's view? Secondly, given the basis for O'Meara's view, would it apply equally to s. 71 and s. 72?

Thanks Peregrin,

Your correct his view does contradict the Statute and I am going to have to read it more closely to better address this issue.

Is the tort of deceit 6 years limitations from time of accrual?

susieshoes2

Peregrinus wrote: »

What you report O'Meara as saying seems, on the face of it, to flatly contradict s. 72. I have no idea why O'Meara says that or what authority he relies on, but you have the advantage over me since you have read the book. Presumably O'Meara explains why he thinks s. 72 doesn't have the effect that, on the face of it, it seems to have. Ask yourself two questions. First, do you agree with, or are you persuaded by, O'Meara's view? Secondly, given the basis for O'Meara's view, would it apply equally to s. 71 and s. 72?

Thanks Peregrin,

Your correct his view does contradict the Statute and I am going to have to read it more closely to better address this issue:

The lobbying power of the various vested interests in Ireland has been, and still is, such that, contrary to equitable Justice, provisions equivalent to the 'discovery of latent damage' provisions inserted into the U.K. Limitation Act in 1986 (see above) have never been enacted into Irish statute.As a result, in Ireland, the commencement of the limitation period in instances of negligence continues to be from the time at which the negligence occurred and NOT the Time of Discovery.




Is the tort of deceit 6 years limitations from time of accrual?

Peregrinus

There's no special limit for the tort of deceit. The general limit for actions in tort is six years, so that's the period . However the circumstances of a particular case could bring the case within one of the sections that imposes a shorter limit.

There's a substantial overlap between deceit and negligence - as in, most fact-sets which give rise to an action for deceit will also give rise to an action for negligent misrepresentation. Since negligent mistrepresentation is easier to prove (you don't have to prove that the defendant intended the plaintiff to rely on the statement. On the other hand, the measure of damages that can be recovered in deceit may be greater and (as we see here) the limitation period is longer, and these are factors which might lead someone to sue in deceit rather than in negligence. If an action in negligence would be out of time, expect the defendant to make the argument that the claim is in reality one for negligent misrepresentation, dressed up as deceit in order to circumvent the statute.

If you're actually contemplating a real live action, go to a solicitor and get counsel's advice at an early stage. There are some difficult judgment calls to be made about whether deceit can be proven, and about whether the defence just outlined might succeed.

susieshoes2

Peregrinus wrote: »

There's no special limit for the tort of deceit. The general limit for actions in tort is six years, so that's the period . However the circumstances of a particular case could bring the case within one of the sections that imposes a shorter limit.

There's a substantial overlap between deceit and negligence - as in, most fact-sets which give rise to an action for deceit will also give rise to an action for negligent misrepresentation. Since negligent mistrepresentation is easier to prove (you don't have to prove that the defendant intended the plaintiff to rely on the statement. On the other hand, the measure of damages that can be recovered in deceit may be greater and (as we see here) the limitation period is longer, and these are factors which might lead someone to sue in deceit rather than in negligence. If an action in negligence would be out of time, expect the defendant to make the argument that the claim is in reality one for negligent misrepresentation, dressed up as deceit in order to circumvent the statute.

If you're actually contemplating a real live action, go to a solicitor and get counsel's advice at an early stage. There are some difficult judgment calls to be made about whether deceit can be proven, and about whether the defence just outlined might succeed.

I appreciate all that input Peregrin, thanks. Is negligent misrepresentation 3 years or 2 years?

This is a link ( insert www.) to a lengthy journal on Irish limitations by the Irish law reform. It is definitely one of the hardest areas to understand. All in all the sooner you bring the action , the better seems to be the motto regardless.

www.bailii.org/ie/other/IELRC/2009/cp54.html#_Toc243106981


( i cannot post links because i am a newbie hence the missing www.)

hullaballoo

susieshoes2 wrote: »

I appreciate all that input Peregrin, thanks. Is negligent misrepresentation 3 years or 2 years?

[...]

( i cannot post links because i am a newbie hence the missing www.)

I have fixed the link for you.

Just as an aside, it's Peregrinus.

susieshoes2

hullaballoo wrote: »

I have fixed the link for you.

Just as an aside, it's Peregrinus.

Thanks