Nullum tempus: governmental immunity to statutes of limitation, laches, and statutes of repose.

• Author: Mack, Joseph

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.

1. 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.

   1. 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." (15)

      The second policy consideration is to protect the courts from having to hear stale claims when their time could be better spent on more recent, and thus more important, disputes. (16) Thus, court dockets are cleared of these older claims, increasing judicial efficiency and preventing wastes of time. There is an underlying assumption that these claims will be "groundless or inconsequential" due to the passage of time, because matters of fact are more difficult to prove if they are too remote in time.

      The third policy justification for statutes of limitation is to punish plaintiffs who "sleep on their rights" for an inexcusably long time. (17) As courts have observed, "the primary purpose of limitation periods is to require the prosecution of a right of action within a reasonable time to prevent the loss or impairment of available evidence and to discourage delay in the bringing of claims." (18) Thus, the plaintiff who delays a suit beyond a certain period brings the punishment upon themselves and deserves to be penalized for allowing their claim to go stale. (19) A plaintiff's knowing delay in filing suit increases the chances that justice will be frustrated by the loss of evidence and cripples the defendant with fear of perpetual liability. As a result, a plaintiff must have some incentive to file suit in a timely fashion.

      All three of these policies may be served in most tort suits, where the defendant's wrongful actions and the plaintiff's discovery of her injury are concurrent. However, some of the policies have been undermined by recent developments in the law of limitations when the discovery of the damage and the defendant's wrongdoing do not occur at the same time.

      Originally, statutes of limitations were interpreted to begin running at the time of the defendant's bad act. (20) However, in the past thirty years there has been an increase in the use of the "discovery of damage" rule. (21) This doctrine places the time of accrual as when a reasonable person would have discovered the injury. (22) States have almost uniformly adopted this rule for personal injury mass toxic suits. (23)

      The adoption of the discovery rule reflects a recognition of the harsh effect of a statute of limitations on a plaintiff who never even knew she had a cause of action until too late. Courts and legislatures responded to the challenges of latent injuries by refusing to allow statutes of limitations to begin running until the injury should have reasonably been discovered. This reaction demonstrates that the policies behind the statute of limitations that protect the defendant and the courts from stale claims are not nearly as important as protecting the plaintiff's right to redress her injuries. It is only when the plaintiff knowingly delays a suit after discovery of the injury that statutes of limitations bar the claim.

      The modern focus of statutes of limitations has shifted to the plaintiff's accountability. Although defendants will still be disadvantaged by delay, and courts will still adjudicate claims involving incidents that occurred decades ago, these policies are only protected if the plaintiff knew or had reason to know of the injury during the delay. (24) Thus, protection of the first two policy justifications for statutes of limitations is conditional on satisfaction of the third.

   2. Laches

      Like the modern statutes of limitations, the equitable doctrine of laches focuses on the plaintiff's conduct after she discovers, or should have reasonably discovered, an injury. (25) Laches thus serves predominantly the same interests as the modern statutes of limitations, protecting defendants who are prejudiced by a plaintiff's delay only if the plaintiff should be held accountable for their tardiness.

      The defense of laches developed as a parallel limitation on actions in equity because statutes of limitations only applied to actions at law. (26) Although the ancient equitable defense has a limited modern impact on tort suits, it is still available in some contexts, such as suits for fraud. (27) However, most jurisdictions limit the defense to actions asking for equitable relief, such as rescission of a fraudulently induced contract. (28)

      In order for the defense of laches to be available to a defendant, there must be unreasonable delay by the plaintiff. (29) Laches functions essentially the same as statutes of limitations under the discovery rule; the possibility of the necessary "unreasonable delay" only begins once the injury is discovered or should have been discovered. (30) If the plaintiff waits for an unreasonable amount of time after discovery and the defendant suffers prejudice because of the delay, a court will not grant equitable relief to the unworthy plaintiff. (31)

      The policy goals for laches are the same as for statutes of limitation: protecting the defendant from perpetual liability, (32) protecting the courts from having to hear stale claims, (33) and encouraging plaintiffs to bring their suits in a reasonably prompt manner. (34) Furthermore, like the modern statutes of limitation under the discovery rule, laches will only protect the defendant and the courts upon a showing of the plaintiff's knowledge of injury. (35) Again, the plaintiff's conduct is the chief focus, and defendants may not assert laches against a plaintiff whose delay is justified, even if the defendant is prejudiced by the delay.

   3. Statutes of Repose

      In response to the widespread adoption of the discovery rule in statutes of limitations, a number of jurisdictions determined that it was necessary to circumvent the elastic nature of the accrual of actions by explicitly requiring plaintiffs to bring suit a set number of years from certain defendant's wrongful actions. (36) These "statutes of repose" were first employed in the context of architects, engineers, and contractors who were held liable for injuries caused by their negligence despite lack of privity of contract in the...