Statute-barred cohabitant claimants in Barbados

• Author: Sampson Owusu
• Position: Lecturer, Faculty of Law, University of the West ladies, Cave Hill Campus, Barbados
• Pages: 38-72

STATUTE-BARRED COHABITANT CLAIMANTS IN

BARBADOS

SAMPSON OWUSU*

There must

be times

when even

the

strongest

desire to

achieve

justice will

give

place to the

realisation

that

the law

cannot

be

stretched beyond

a

certain

point1

The facts and the judgment in the Barbados case of Yarde v.

Spooner2 evoked memories of the English case of

Cartledge

v. E.

Jobling.3 The circumstances of these two cases did plead touchingly

for a remedy. But in both cases the courts could not stretch and

strain the bursting seams of the law to afford a remedy to the

plaintiffs. Though the subject matter of each of these two cases is

completely different, both cases point to the hardship which a statute

of limitation can inflict. Yarde v. Spooner4 arose out of the new

jurisdiction vested in the Barbados courts to entertain claims for

maintenance by parties living in a de facto marital relationship

against each other. The new jurisdiction further allows the courts to

*Lecturer, Faculty of Law, University of the West ladies, Cave Hill Campus,

Barbados.

1 (1963) 79 L.Q.R. 161.

2 High Court (Family Division) No. 20 of 1984, October 13, 1986 (Barbados,

unreported).

[1963] A.C. 758. The plaintiffs in this case contracted pneumoconiosis in the

course of their employment as steel dressers. That was an insidious disease which

caused a latent, slowly accruing and progressive damage to the lungs of

the

plaintiffs,

who could not have been aware of

the

disease within the six-year limitation period of

the Limitation Act, 1939, s. 2 (1). Their claims, however, were dismissed by the trial

Court, the Court of Appeal and the House of Lords, which were all unanimous in

lamenting the conclusion which they were constrained to reach by the letter of the

Limitation Act, 1939. The House of

Lords

urged that the law should be altered. This

was achieved with the enactment of Limitation Act, 1975, on the recommendation of

the Law Reform Committee:

Interim

Report on

Limitation

of

Actions

in

Personal

Injury Claims (1974) Cmnd. 5630. See the case notes on

Cartledge's

case in (1961)

105 S.J. 884; (1962) 106 S.J. 209 and (1963) 79 L.Q.R. 161.

4 High Court (Family Division) No. 20 of 1984, October 13, 1986 (Barbados,

unreported).

alter and transfer to an applicant a share of property belonging to

his/her de facto partner.5 But this new dispensation does not provide

for every person living in a de facto marital relationship. It is limited

in its scope to persons living in a "union other than marriage", which

has been defined by s. 39 of the Family Law Act 1981 as,

"the relationship that is established when a man and a

woman who, not being married to each other, have

cohabited continuously for a period of

5

years or more and

have so cohabited within the year immediately preceding

the institution of proceedings ...."

The last of these conditions in this definition, i.e. that the parties

should "have so cohabited within the year immediately preceding the

institution of the proceedings", is what proved fatal to the claim of

the cohabitee in Yarde v. Spooner. This last condition erects a

limitation bar in the definition and may be applied regardless of the

merits of a claim. This is exactly what happened in Yarde v.

Spooner.

In

Yarde

v. Spooner6 the applicant and the respondent cohabited

for 10 years. The applicant instituted proceedings against the

respondent for maintenance two years after they had separated. The

respondent did not deny that he had cohabited with the woman, the

applicant, for 10 years. He, however, relied on the statutory defence

that the claim should have been filed in not less than one year after

their cohabitation had ceased; the claim filed two years after

separation could therefore not be maintained against him. The court

upheld this defence and dismissed the claim of

the

applicant. In view

of the cold words of the statute the decision in Yarde v. Spooner

cannot be impugned. The court could not have avoided the hardship

suffered by the woman applicant in

Yarde

v.

Spooner.

The limitation

period of one year constitutes part of the substantive definition of

"union other than marriage". This provision is

in

pari

materia

with

the corresponding provision in Ontario7, which has been construed

as forming an integral part of the definition and as being not merely

5 Family Law Act, ss. 52 and 57(1).

6 High Court (Family Division) No. 20 of 1984, October 13, 1986 (Barbados,

unreported).

7 Family Law Reform Act, R.S.O., 1980, s. 14(b)(i).

of a procedural significance.8 It cannot, therefore, be waived or

extended without an enabling proviso in that

behalf.

A statute of limitations has the virtue of giving protection against

stale claims. It promotes institution of actions at the time when

evidence is fresh and can be remembered without effort, and

engenders confidence in treating as inexorably closed an incident

which might have led to litigation.9 In relation to statutes of

limitations, Best C.J. said that he

"often heard it called by great judges, an Act of peace.

Long dormant claims have often more of cruelty than of

justice in them. Christianity forbids us to attempt enforcing

the payment of a debt which time and misfortune have

rendered the debtor unable to discharge."10

The need for a limitation period is not doubted.11 What is in

dispute is the need for a discretion to extend any such prescribed

period to accommodate tardy applicants who may suffer obvious

hardship from the strict application of the limitation period. One

may, in arguing against the vesting of judicial discretion, find it

difficult to conceive of

any

justifiable reason for an estranged partner

to delay in prosecuting his/her claim against his/her former partner.

However, reasons for such delays do not only abound but they are

as compelling as they are infinitely various. The reasons are so

cogent that they hardly need to be detailed

here.

Suffice it to mention

that reasons which the courts have accepted as justifying delay in

presenting a claim include judicial attitudes where "the court itself

8 See Sanderson v. Russell (1979) 9 R.F.L. (2d) 81.

Report of the Committee on Limitation of Actions in Cases of Personal Injury,

1962 Cmnd. 1829, para. 17.

10 A'Court v. Cross (1825) 3 Bing. 329, 332-333.

11 This view is not unanimously accepted. The Trades Union Congress in

England submitted to the Law Reform Committee that "If ....the plaintiff is

unreasonably dilatory in getting proceedings on their feet, not only will he have been

kept out of his money for longer if he eventually succeeds, but his chances of

discharging the burden of proof which the law casts upon him will be reduced. There

is,

therefore, no need to give to the defendant the additional protection afforded by the

law of limitation. Moreover, in those cases where the plaintiff could not reasonably

have instituted proceedings earlier than he in fact did (because, for example, he is the

victim of an insidious disease), then any limitation period is likely to produce arbitrary

and unjust results": Interim Report on limitation of Actions in Personal Injury Claims

(1974) Cmnd. 5630 (London: Her Majesty's Stationery Office, 1974).