Limitation of Actions Consultation - Law Commission

10.41 In accordance with the recommendations of the Law Reform Commission, the
1991 Act did not contain a statutory long-stop provision. It remains to be seen,
however, whether the courts will use their inherent jurisdiction to strike out claims
for delay as actively where a long delay between the commencement of
proceedings and the events to which they relate is due to lack of discoverability, as
they do at present where such a delay is due to the plaintiff’s disability. 101
This
jurisdiction has been described by one commentator as “a judicial ‘long stop’,
operating as an important qualification to the discoverability principle.” 102
10.42 Although the Statute of Limitations (Amendment) Act 1991 resolved the
uncertainty in relation to personal injuries, there still remained the question of
whether the lack of a discoverability test in the Statute of Limitations 1957, in
relation to other causes of action, could be attacked on constitutional grounds.
This question was resolved in Tuohy v Courtney, 103
in which the Supreme Court
decisively rejected such a challenge. It was held that Parliament, in legislating on
limitation, was engaged in a balancing of constitutional rights and duties, and that
in a challenge to the constitutional validity of any statute the role of the courts was
not to impose its own view of what those rights and duties should be. Therefore,
the limitation period for latent damage other than personal injuries remains based,
as the case may be, on the date of the breach of contract, or the date on which the
plaintiff suffers damage, regardless of discoverability.
(4) Actions for Breach of Trust
10.43 The main provision of the Statute of Limitations 1957 dealing with the limitation
period for breaches of trust is section 43(1)(a). This provides:
Subject to section 44 of this Act, 104
an action to recover money or other
property or in respect of any breach of trust, not being an action for
which a period of limitation is fixed by any other provision of this Act,
shall not be brought against a trustee or any other person claiming
through him after the expiration of six years from the date on which
the right of action accrued.
The definition of a trustee in the Statute excludes “a person whose fiduciary
relationship arises merely by construction or implication of law and whose
fiduciary relationship is not deemed by any rule of law to be that of an express
trustee.” 105
This distinction between express trusts, on the one hand, and implied
and constructive trusts on the other, contrasts with the position under English
law. 106
101 See para 10.51 below.
102 B M E McMahon and W Binchy, Irish Law of Torts (2nd ed 1990), p 831.
103 [1994] 2 ILRM 503.
104 See para 10.44 below.
105 Statute of Limitations 1957, s 2(2)(a)(i).
106 See paras 4.8 - 4.13 above.
193