Academic journal article Defense Counsel Journal

Nullum Tempus: Governmental Immunity to Statutes of Limitation, Laches, and Statutes of Repose

Academic journal article Defense Counsel Journal

Nullum Tempus: Governmental Immunity to Statutes of Limitation, Laches, and Statutes of Repose

Article excerpt

QUOD NULLUM TEMPUS occurrit regi literally means "no time runs against the King." This ancient doctrine exempts certain governmental bodies from statutes of limitations, laches, and statutes of repose. It is a controversial doctrine, attracting criticism that it is based on the ancient formalities of sovereign immunity that cannot be justified in modern times. (1) Nevertheless, nullum tempus continues to persist in most jurisdictions today. Furthermore, the doctrine has gained new significance in light of the advent of controversial mass tort suits by state attorneys general on behalf of governmental bodies seeking reimbursement for public expenditures for injuries caused by products such as tobacco, (2) lead paint, (3) and firearms. (4)

The doctrine of nullum tempus allows the government to sue defendants that could not be sued by any private party due to the time limitations posed by statutes of limitations, laches, and statutes of repose. This paper will explore whether this result is justifiable, examining the roots of the doctrine and the various limitations placed on it by different jurisdictions. Additionally, the paper will compare the policies the doctrine purports to serve with those protected by statutes of limitations, laches, and statutes of repose. I conclude that the policies served by statutes of limitations and laches are not so important so as to require the abolition of nullum tempus due to their focus on punishing tardy plaintiffs; however, the policies behind statutes of repose are distinct and significant enough to undermine the governmental use of the doctrine because those statutes focus solely on protecting defendants.

I. History and Policy of Statutes of Limitations, Laches, and Statutes of Repose

Limitations on the time a plaintiff may bring suit have existed almost as long as the laws allowing plaintiffs to bring suit. Time limits find their origins in Roman law and have continued to be used in subsequent legal systems to this day. As early as 1236, English "statutes were enacted prohibiting real property actions if they were based on a seisin prior to a given date, such as the coronation of Henry II." (5) The modern time bar statutes first appeared in England in the Limitations Act of 1623. (6) This statute provided different time limits for different actions, running from the time the action accrued. (7) In order to gauge the potential injustice posed by nullum tempus, one must first understand the recent developments and policies behind laches and statutes of limitations and repose.

A. Statutes of Limitations

General statutes of limitations are the most common time limitation on a tort plaintiff's rights to bring suit. These statutes set a prescribed time in which a plaintiff must file a complaint after a cause of action accrues. If a plaintiff does not file a complaint within the time period, the complaint is dismissed and the cause lost, regardless of the underlying merit of the suit. (8) Normally, the cause of action accrues on the date which the injury occurs, although a minor's cause does not accrue until he or she reaches the age of majority. (9) Additionally, the statute can be "tolled" in some jurisdictions if there is some procedural defect in a prior timely complaint, such as incorrect venue (10) or fraud by the defendant. (11)

There are three policy reasons supporting statutes of limitations. The first reason is to protect defendants from stale claims. (12) Statutes of limitations are said to allow defendants security in their business and planning by allowing them to rest assured after a certain period that they cannot have liability for acts committed far in the past. (13) Furthermore, statutes of limitations serve to protect defendants by insuring that they will not be disadvantaged by the effect of time on their ability to defend themselves. (14) Defendants will not be able to produce evidence to absolve themselves if "memories have faded, witnesses have died or disappeared, and evidence has been lost. …

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