20 April 2021, by Loong Sheng Li
Case Study
Lawyer X was appointed by the client for the recovery of damages for unpaid services rendered arising from breach of contract. Lawyer X advised the client to attempt out of court settlement negotiations to reduce litigation costs. Negotiations between the parties broke down, and upon the client’s instructions to initiate legal proceedings, Lawyer X came to the realisation that the claim was now time-barred. The client subsequently claimed against Lawyer X for professional negligence.
Time Bars in Malaysia
The general time limits in our civil law system is governed under the Limitation Act 1953 which sets the maximum time period after an event within which to make a claim. For example, general matters arising from tort of negligence or breach of contract shall not be brought after the expiration of 6 years from the date on which the cause of action accrued
[1].
The Limitation Act 1953 was recently amended
[2] and saw the insertion of Section 6A which applies to any action for negligence not involving personal injuries. Essentially, Section 6A extends the 6-year limitation period by three years from the “starting date” which calculates from when the plaintiff acquired the requisite knowledge for bringing an action for damages eg the damage suffered was attributable to an act of omission of the defendant
[3].
On the other hand, time bars relating to admiralty matters
[4] are governed by the Carriage of Goods by Sea Act
[5] and provides that any claims arising thereunder has a time limit of one year after the delivery of goods or the date when the goods should have been delivered. Separately, the Merchant Shipping Ordinance 1952 provides for claims against the vessel or its owners (eg ship collision, and personal injury) where the time limit is two years from the date when the damage or loss or injury was caused or the salvage services were rendered.
Diary Management for Time Limits
Identifying and recording critical dates are all part of the job – this not only includes time limits but also court dates and deadlines to submit court documents. Missed time limits and deadlines have very rarely, if not never, been remedied by telling the court that the acting solicitor forgot/overlooked the matter. While lawyers are human too, nevertheless there is no place for human error in law. Lawyers owe their client a duty of care to act for them in a high level of care and skill.
Missing time limits have grave consequences which more often than not results in professional negligence claims against the firm. Therefore, we list below the following tips for you to stay on top of critical dates and avoid negligence claims against your firm:
- Before accepting a case, promptly obtain and review all the necessary documents/information to ascertain the applicable time limits, if any;
- Identify the correct time limit applicable – check, double check, and triple check;
- Communicate clearly with the client from the get-go – provide a preliminary advice which highlights time limits, case strategy and merits of the case;
- Critical dates should be entered into at least 2 diary systems by more than one person;
- Use both a desk and digital diary to key in critical dates;
- Set a reminder on any time limit, especially where the client is holding out on filing the claim pending any out of court negotiations/considerations; and
- Have a written record on which file is assigned to which lawyer.
Do not take on more than you can manage – this increases the possibility of errors including missed limitation periods and deadlines.
[1] Section 6(1) of the Limitation Act 1953 (Act 254)
[2] The Limitation (Amendment) Act 2018 came into force on 1 September 2019
[3] Section 6A only applies if the 3-year period expires later than the limitation period prescribed under Section 6(1) of the Limitation Act 1953
[4] Time limits for admiralty claims may be extended by mutual agreement
[5] The Carriage of Goods by Sea Act 1950 is applicable only in West Malaysia