Q&As

Can you raise a time-barred counterclaim?

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Produced in partnership with Mr Tom Montagu-Smith, QC
Published on LexisPSL on 24/04/2017

The following Dispute Resolution Q&A produced in partnership with Mr Tom Montagu-Smith, QC provides comprehensive and up to date legal information covering:

  • Can you raise a time-barred counterclaim?

Can you raise a time-barred counterclaim?

The effect of limitation periods on counterclaims is governed by section 35 of the Limitation Act 1980 (LA 1980). That provision has been described as ‘one of the most convoluted provisions in the entire law of limitations’: per Lord Collins in Roberts v Gill at [3], citing McGee, Limitation Periods (5th Edn).

By LA 1980, s 35, a set-off or counterclaim is treated as a separate claim and is deemed to have been made on the date when the original proceedings were commenced. The general rule is therefore that a counterclaim which is statute barred may be advanced if it was not statute barred at the time that the proceedings were issued.

The general rule is

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