My understanding is that there are three (perhaps more!) issues here, one of
which Deidre has touched on.
The Limitations Act includes numerous scenarios related to when legal action
may be brought, many of which have a time limitation of 6 years. It is very
important therefore to read the Act carefully to identify - taking a
risk-based approach - which scenario is most appropriate to base a retention
time around. You may, for example, set a 6-year period based on the limit
for action related to default of a contract but still face legal action
related to negligence.... which has a different limitation period (15
years).
Secondly, there are numerous other Acts which stipulate minimum explicit
retention periods for business records e.g. Companies Act, Control of
Substances Hazardous to Health Regulations, Income Tax (Employments)
Regulations, Value Added Tax Act.
Thirdly, although the House of Lords ruling does create a legal precedent,
the Lords made it clear that the limitation period would only be extended if
there were extenuating circumstances and after approval from the High
Court.... i.e. not as a matter of routine. In any event, it is sometimes the
case that the 6-year limitation period commences NOT when a record is
created but when the plaintiff first identifies or could reasonably be
expected to identify that a suspected wrongdoing had occurred. For example,
in the case of personal injury the clock starts ticking when the individual
becomes aware of the injury. This may be several years after the related
records were created.
My personal view is that the ruling does not necessarily blow apart our
retention schedules but it introduces an additional, complicating factor
when formulating retention policy, which should be risk-management based.
Regards,
Eldin Rammell.
Director & Principal Consultant
RAMMELL Consulting Limited www.rammell.com
Office: 0844 8844926 Mobile: 07940 859721 Fax: 08707 623115
-----Original Message-----
From: The UK Records Management mailing list
[mailto:[log in to unmask]] On Behalf Of Edith
Pringault-Adam
Sent: 01 February 2008 16:06
To: [log in to unmask]
Subject: Limitation Act - 6 year rule challenged?
Dear all,
I am surprised to see no reference on Jiscmail to the impact on records
retention based on the Limitations Act following the case of the woman who
successfully challenged a court decision to the House of Lords for claiming
damages well after the 6-year limit (House of Lords 30/01/2008). See story
at
http://www.channel4.com/news/articles/society/law_order/lords+rule+rapist+ca
n+be+sued/1440247
Unless I am totally wrong here, this has implications on the 6-year rule,
which is the basis of so many retention periods in England and Wales.
Or does this only concerns the police and the courts??
This Act does not apply in Scotland, so this is purely out of interest.
Thank you for your comments.
Regards,
Edith
*******************************************
Edith Pringault-Adam Msc RM
Information and Records Manager
Aberdeenshire Council
Bberry: 07767618856
Telephone: (01569) 768250
Internal: 724 - 8250
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