On Delay and Obsolescence
The purpose of the statute of limitations is to achieve a balance of interests between the litigants and the general public.
The purpose of this balance is to allow a sufficient stay for a party seeking to claim his rights in a court of law.
On the other hand, a reasonable period of time is set in advance for the purpose of filing the lawsuit, beyond which the legal claim will be removed from the defendant and he will no longer be required to keep his evidence.
Opposite the statute of limitations is the right of access to the courts, which has been recognized in the case law as a constitutional right.
Section 5 of the Statute of Limitations provides that a claim in respect of most matters relating to tenancy becomes statute-barred after seven years.
Section 6 of the Statute of Limitations provides that: “The period of limitation begins on the day on which the cause of action arose.”
Take for example a claim for non-payment of rent.
This is an ongoing cause of action which, from the date of its occurrence, the limitation period must begin to be calculated, it constitutes the “day on which the cause of action arose” under section 89 of the Torts Ordinance. Hence, the limitation period should be counted from this date.
The claim of delay, by its very nature, seeks to create an additional barrier to the right of access to the courts, even beyond the provisions of the statute of limitations.
Thus, naturally, the conditions for its acceptance are strict and its acceptance will be made in rare circumstances and only in cases where the defendant has proved that in addition to the lapse of time two additional conditions were met.
Subjective, in which it must be examined whether there is in the course of time to indicate a waiver of rights. Objectively, it will examine whether damage to the defendant could have been prevented if the plaintiff had filed the claim at an earlier date.
In addition to these two conditions, there is another consideration from the ruling and that is the good faith of the delayer.
Take for example a landlord who chooses to file a lawsuit against a tenant for having made a self-repair of a defect in the apartment and then reduced the rent.
The plaintiff files the lawsuit after six years.
Thus, the tenant is prevented from involving the professional who carried out the repair to testify in his favor simply because the professional no longer remembers the event, or cannot be traced.
However, the court rules, contrary to the statute of limitations claim, when it comes to a claim for delay, even when the said tests are met, this does not necessarily lead to a postponement due to delay, and the court is left with discretion as to the meaning to be attributed to the delay claim.