The Special Circumstances Doctrine under the New Limitations Act


One of the important features of the new Limitations Act, 2002 which came into force on January 1, 2004 was a provision that seemed to bring an end to the so called “special circumstances doctrine”. The special circumstances doctrine was developed by the courts and permitted a new party or a new cause of action to be added to an existing claim after the expiry of a limitation period if the plaintiff was able to show that there were “special circumstances”. The special circumstances doctrine had become much criticized because it allowed plaintiffs to get around the operation of limitation periods in a huge number of cases. What the courts became to consider “special circumstances” were not terribly special at all. All the plaintiff had to show was that the defendant would not be irreparably prejudiced by the addition of the new claim or party and that it was in the interest of justice for the claim to be decided on its merits. In most cases the plaintiffs were able to meet this test and they were therefore able to avoid the operation of the limitation period.

Section 21 of the new Limitations Act, 2002 appeared to do away with the special circumstances entirely. It states that: “If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding.”

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