The Limitation of Civil Actions in New Zealand and German Law

Abstract

This paper develops a proposal for reform of the New Zealand law on limitation of civil actions by comparing New Zealand and German limitation law. German limitation law, as an example for a modern limitation law, is critically analysed. The paper states that the New Zealand limitation law should be reformed and focuses on several aspects for a possible reform. The main focus is on the question how a claimant can be protected from time expiration if there was no possibility of discovering the facts that the claim can be based on. The paper states that it is unjust for the claimant if a limitation period can expire although the claimant is blamelessly ignorant. The paper analyses the term 'accrual of cause of action' which in the present New Zealand law is the most common start date for the limitation period and considers recent case law which concludes that in general this term does not include a subjective element. The main proposal is to implement a subjective limitation regime which provides for an objective standard start date and a time extension for the blamelessly ignorant claimant. The start date should be objectively ascertainable because limitation law requires legal certainty. In order to protect defendants from open-ended claims the paper proposes a long-stop provision which commences on the objective standard start date. The paper claims that a subjective limitation system requires as much universality as possible because subjective elements inevitably cause legal uncertainty. This uncertainty can only be justified by applying these subjective rules as uniformly as possible. Consequently, there should not be too many categories for different types of claims. Furthermore, the paper proposes that a standard limitation provision should be introduced which applies generally. This avoids that claims can be brought in perpetuity if these are not subject to a special limitation provision. The paper moreover states that as a consequence of introducing a subjective limitation system, limitation periods should be shortened because as soon as the claimant has gained knowledge or reasonably could gain knowledge it is fair and possible to raise a claim. This is underlined by international trends.