Limitation of actions

In the 20+ years I have been living and working in the Turks and Caicos Islands, I have always been amused by the reaction of international clients and attorneys when I tell them there is no single statute of limitations in the Turks and Caicos Islands, meaning that most civil/commercial causes of action justiciable before the Magistrate’s Court and/or Supreme Court were not susceptible to being time-barred (there are a few limitation periods contained in various statutes but outside the area of trusts, these generally have no effect on civil or commercial actions). The reaction is almost universally the same: one of incredulity and disbelief. Well no more!

On 12 October 2021, the Limitation of Action Ordinance (the Ordinance) came into force.

Parts II to V of the Ordinance give the ordinary time limits for bringing actions of various classes, including for the following common causes of action.

• Defamation or malicious falsehood: two years from the date the cause of action accrued (s6).
• Simple contract or tort: six years from the date the cause of action accrued (s7).
• Action on specialty: 12 years from the date the cause of action accrued (s11).
• Claiming contribution: two years from the date the right accrued (s12).
• Personal injury: three years from the date the cause of action accrued or the date of knowledge, if later (s13).
• Recovery of land: 12 years from the date the action accrued (s18).
• Recovery of rent: six years from the date the arrears became due (s31).
• Recovery of money secured by charge: 12 years from the date the right to receive the money accrued or the right to enforce the charge accrued (s32).
• Recovery by a beneficiary of trust property or for a breach of trust: six years (s33).
• Claims to the personal estate of a deceased person: 12 years from the date the right to receive the share or interest accrued (s34).
• Claims for an account: the limitation period that is applicable to the claim forming the basis of the duty to account.
• Enforcing a judgment: six years from the date that the judgment became enforceable. Arrears of interest for a judgment debt shall not be recovered after the expiry of six years from the date the interest became due.
• Recovery of an overpayment or claiming underpayment on remuneration: three years from the date of discovery of the payment/underpayment.

There are special provisions for negligence actions (excluding personal injury claims) where facts relevant to the cause of action are not known at the time of accrual of the cause of action. In such cases, an action shall not be brought after the expiry of six years from the date the cause of action accrued, or three years from the earliest date when the plaintiff first had both the knowledge required for bringing an action for damages and a right to bring such an action.

There is then an overriding limitation for negligence actions (not involving personal injury) that provides that no action can be brought after the expiry of 15 years from the date the act or omission occurred.

The ordinary time limits are subject to extension or exclusion in accordance with Part VI; for example, in cases of disability, fraud, concealment or mistake.

The Ordinance applies to arbitrations just as it applies to actions in the Supreme Court.

Certain transitional provisions have been included that provide that nothing in the Ordinance:

• shall enable any action to be brought that was barred before the commencement of the Ordinance; or
• shall affect any action commenced before the commencement of the Ordinance; and
• a person who, prior to the commencement of the Ordinance, had a right of action that, because of the limitation period provided in the Ordinance, will expire on the commencement of the Ordinance or within one year from the commencement may bring that action within 12 months of the commencement of the Ordinance.

Section 50 of the Ordinance provides that any existing provision applicable to the Turks and Caicos Islands cease to have effect, except where the Ordinance refers to another enactment with the intention that both the Ordinance and the other ordinance will apply. Ordinances that previously provided for limitation periods – such as the Trusts Ordinance (Chapter 16.12), the Fatal Accidents Ordinance (Chapter 4.10) and the Public Authorities Protection Ordinance (Chapter 21.10) – need to be considered in light of this provision.

As one might expect, the burden is on a defendant to a claim to raise limitation as a defence. There is no automatic bar on recovery. Parties may agree to vary or exclude limitation periods.

Court-connected mediation

Traditionally, the legal system in the Turks and Caicos Islands did very little, if anything, to promote alternative dispute resolution, though there was no bar to it other than a lack of qualified, independent mediators and arbitrators.

As of 15 October 2021, the new Court-Connected Mediation Rules 2021 (the Mediation Rules) came into force. The Mediation Rules were issued by the Chief Justice with the stated overriding objective of ‘dealing with cases justly’ and recognise the ‘duty of the court to promote settlement or reconciliation wherever possible’. The Mediation Rules apply to all proceedings in the Magistrate’s Court and Supreme Court save for insolvency proceedings, non-contentious probate proceedings and such other proceedings in the Supreme Court as may be identified from time to time by the Chief Justice not to be suited to mediation.

Parties may be referred to mediation by the Registrar, Magistrate or a Judge. In making a referral, the following matters may be considered:

• the relationship between the parties;
• the willingness of the parties to resolve their dispute by a collaborative process;
• the number of parties;
• the complexity of the issues in the suit; and
• whether the mediation, rather than litigation, will be more beneficial to the parties as they seek to resolve their dispute.

Suitably qualified mediators may apply to the Registrar of the Supreme Court for appointment as court-connected mediators by the Mediation Committee. In order to be considered for placement on the roster, applicants need to provide evidence:

• of having satisfactorily completed the training for mediators leading to certification by the University of the West Indies;
• that they are a fit and proper person; and
• that they do not hold a criminal conviction involving fraud or
  other dishonesty.

Mediators whose training and certification was obtained in another jurisdiction may apply to the Chief Justice for inclusion in the roster. The Chief Justice shall refer the application to the Mediation Committee with her advice.

Mediators are bound by a Code of Conduct set out in the First Schedule to the Mediation Rules and must be wholly independent and impartial.

Parties or counsel in a complex case may apply for their case to be mediated by co-mediators. In fact, as the new service is being rolled out, all the mediations will be mediated by co-mediators for the first three months, with one of those mediators being experienced and appointed from outside the jurisdiction.

Referral by Registrar

Any party to the proceedings may request a referral after the filing and service of the claim/defence, as the case may be, and the Registrar may make a referral order to send the file to the ADR Administrator.

A Registrar’s Referral Order will be made before the file is first placed before the Magistrate/Judge.

Even absent a request for a referral by either party, the Registrar/Clerk of Court must invite the parties to a pre-proceedings case management meeting to discuss the possibility of the dispute being resolved through mediation.

Referral by the Court

Where proceedings have been commenced, a Judge or Magistrate may, in performing case management, introduce the suitability of mediation for that case, and shall secure the consent of the parties to refer the matter to mediation. This may be at any stage of the proceedings where the Court is of the view that mediation would facilitate the resolution of the dispute by the parties.

Where one party desires to submit a dispute to mediation and the other party unreasonably refuses mediation, the Magistrate or Judge may take that party’s refusal into account when making a costs order in the proceedings.

Once the Referral Order is made, the mediation session must be held within 21 days and, although sessions can be adjourned from time to time as necessary, under no circumstances must any mediation exceed 60 days.

Outcome of mediation

Upon the conclusion of the mediation sessions where there is a settlement of all or some of the issues in dispute, the terms of settlement shall be set out and the signed terms of settlement shall be prima facie evidence of settlement and shall be adopted by the Judge/Magistrate as the judgment of the court.

Where no settlement is reached, an order will be made for the action to take its normal course.

Court-aided mediation

Parties who require the resolution of a dispute, but do not wish to file papers before the court, may access the Court-Aided Mediation services for a fee. Such parties will have access to the roster of mediators and the services of the ADR Administrator.

The Mediation Committee

The Mediation Rules provide for the establishment of a Mediation Committee by the Chief Justice comprised of the following persons:

• a Judge (who will be the Chairperson);
• the Chief Magistrate;
• the Registrar of the Supreme Court; and
• a representative of the Bar Association who may hold the position of membership for one year.

The Mediation Committee is responsible for compiling the roster of mediators (including assessing applications for entry on to the roster by suitable candidates) and for monitoring the observance of the Code of Conduct and implementing the Disciplinary Rules. The Mediation Committee will report to the Chief Justice. The ADR Administrator is an official appointed by the Chief Justice to be responsible for the management of court-connected mediation and who manages the roster of mediators.

Other developments

This is not the end of steps being taken by the Turks and Caicos Islands judiciary to bring the legal system into the 21st century. New Civil Rules are in the process of being drafted, steps are being taken to introduce a system of electronic filing and it is hoped that something will be done to update the Arbitration Ordinance, which currently reflects the position in England and Wales as the law stood in 1938.