One of the most common hindrances to filing a civil suit is laches. Generally speaking, in most cases you must bring a claim to court within 6 years of the claim arising. If you wait too long, you are said to have “sat on your rights” and it would be considered unjust to give a remedy after the long hiatus.So you are out of time. Does this mean that you cannot file your suit anymore? Not necessarily. There are several exceptions to the rule, which means that you can still file a suit even though the 6-year limitation period has been surpassed provided that it falls within the following categories:
1. Fraud or Mistake
If the debtor commits fraud, the 6-year limitation period only begins from when the fraud was detected. Similarly, if the relief sought arises from that right of action that resulted from a mistake, the 6-year limitation period only begins from when the mistake was detected
According to Section 29 of the Limitation Act 1953:
“29. (1) Where, in the case of any action for which a period of limitation is prescribed by this Act, either—
(a) the action is based upon the fraud of the defendant or his agent or of any person through whom he claims or his agent; or
(b) the right of action is concealed by the fraud of any such person as aforesaid; or
(c) the action is for relief from the consequences of a mistake, the period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake, as the case may be, or could with reasonable diligence have discovered it”.
Thus, for fraud, if the debtor conceals something that could have lead to the creditor demanding for his relief, the period of limitation only begins from when that fraud was discovered (or could have been discovered with reasonable diligence).
Example: A borrows money from B in 2010. A then pays B back in fake notes in 2014, but B did not realize this until 2022. Period of limitations to recover the money only begins to run from 2022.
Similarly, if either party makes a mistake, which could have lead to the creditor demanding for his relief, the period of limitation only begins from when that mistake was discovered (or could have been discovered with reasonable diligence).
Example: A buys goods from B in 2010. A pays B for the goods, but did not realize B had mistakenly described the goods until 2013. Period of limitations to recover the money paid only begins to run from 2013.
2. Latent Defects
In some cases, such a construction, defects cannot be detected until much later after completion and handover of the project. The new insertion of Section 6A of the Limitations Act now allows for the limitation period to run from when the defect was discovered.
According to Section 6A of the Limitations Act:
“6A. Limitation of actions to claim damages for negligence not involving personal injuries
(1) Notwithstanding subsection 6(1), this section shall apply to any action for damages for negligence not involving personal injuries, where the starting date for calculating the period of limitation under subsection (2) falls after the date on which the cause of action accrued.
(2) An action to which this section applies shall not be brought after the expiration of three years from the starting date if the period of three years expires later than the period of limitation prescribed in subsection 6(1).
(3) Notwithstanding subsection (2), no action shall be brought after the expiration of fifteen years from the date on which the cause of action accrued”
In short, while the usual limitation period of six years still applies, if the defect is latent (not discoverable until much later), then an additional three years is allowed for the plaintiff to file an action, running from when the defect was discovered. In this scenario, a limit is imposed: no action is to be filed more than fifteen years from the cause of action.
Example: A buys a house B built in 2003. Substantial defects occur in 2005, and was not discovered until 2015. A can still file a suit against B from 2015 to 2020, but the extended period of limitations runs out in 2020 (15 years after 2005).
When a person is disabled or incapacitated during the time he had a right to sue, the period of limitations will not run.
According to Section 24 of the Limitations Act:
“24. (1) If on the date when any right of action accrued for which a period of limitation is prescribed by this Act, the person to whom it accrued was under a disability, the action may be brought at any time before the expiration of six years, or in the case of actions to which subsection 6(4) or section 8 of this Act applies, one year from the date when such person ceased to be under a disability or died, whichever event first occurred, notwithstanding that the period of limitation had expired”
And according to Section 2 (2) of the same Act:
“(2) A person shall be deemed to be under a disability while he is an infant or of unsound mind”
This includes people who are below the age of 18, or mentally unsound, at the time of accrual of the cause of action.
Example: A was unfairly dismissed by B when he was mentally unsound in 2006. A recovers in 2020. The period of limitations begins to run from 2020.
Example: A was a 10 year old minor at the time of accrual of the cause of action in 2006. A turns 18 in 2014. The period of limitations only begins to run from 2014. [noted: under Subsection 24(4)(a) of the Act, if the minor could have asked an adult to sue on his behalf, the period of limitations will run as normal]
4. Fresh accrual of action
Despite having past the period of limitations to sue, if the debtor acknowledges the debt at some point more than 6 years after the right to sue arose, that is sufficient to revive the cause of action.
According to Section 27 of the Limitations Act:
“26. Fresh accrual of action on acknowledgment or part payment
(1) Where there has accrued any right of action to recover land or to enforce a mortgage or charge in respect of land or personal property, and—
(a)the person in possession of the land or personal property acknowledges the title of the person to whom the right of action has accrued; or
(b)in the case of any such action by a mortgagee or chargee the person in possession as aforesaid or the person liable for the debt secured by the mortgage or charge makes any payment in respect thereof, whether principal or interest, the right shall be deemed to have accrued on and not before the date of the acknowledgment or last payment.
(2) Where any right of action has accrued to recover any debt or other liquidated pecuniary claim, or any claim to the personal estate of a deceased person or to any share or interest therein, and the person liable or accountable therefor acknowledges the claim or makes any payment in respect thereof, the right shall be deemed to have accrued on and not before the date of the acknowledgment or the last payment:
Provided that a payment of a part of the rent or interest due at any time shall not extend the period for claiming the remainder of the rent or interest then due, but any payment of interest shall have effect, for the purposes of this subsection only, as if it were a payment in respect of the principal debt.”
This means that if you are out of time to recover a debt, merely send a note to the debtor to confirm that he owes you money. Any written reply by the debtor acknowledging that he indeed owes money to you, can be used as acknowledgement of debt (even electronic messaging such as via Whatsapp), and the accrual of the right of action shall begin from the date of said acknowledgement of debt. However, it is noted that such acknowledgement must be clear, unambiguous, in written form and signed by the debtor or their agent.
Example: A is supposed to have paid back a loan to B by 2010, but fails to do so. Period of limitation expires in 2016. In 2020, B asks A to acknowledge that his debt still stands, and A does so. The renewed period of limitations begins to run from 2020.
Also, another method to get back your money even though you are out of time to sue, is to ask for part payment. However it is noted that such partial payment must clearly be made out to the creditor.
Example: A is supposed to have paid back a loan to B by 2010, but fails to do so. Period of limitation expires in 2016. In 2020, B asks A to pay back at least 10% of the debt, and A does so. The renewed period of limitations begins to run from 2020.
This article was written by Caleb Goh from Marcus Tan & Co’s Litigation Department
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