I think there is good evidence to suggest that retention periods for records can be traced back in England to 1200 when Richard I ordered the creation of archives to ensure that duplicate copies were kept of important records (after many had been destroyed in riots not long before).
From that date until relatively recently, most minimum retention periods related to property contracts. The following is extracted from my article published in the Australian IQ magazine in February 2013.
Writs of Entry began to appear from 1199, including ad terminum qui preteriit (‘for a term that has expired’). Writs of Entry before and after 1237 were as follows:
- Before 1237, ‘… plaintiffs could not claim land on the basis of seisin before the day in 1135 when Henry I died.’
- In 1237, the Statute of Merton, 20 Hen III (1235) stated that a writ of right for land-related claims could not refer back to any time before the coronation of Henry II in 1154.
- In 1275, the Statue of Westminster, 3 Ed I c 39 moved this date forward to the coronation of Richard I in 1189.
These dates were not changed again until enactment of the Act of Limitation 1540, which prescribed the following limitation periods for land-related writs:
- 60 years for land-related writs of right.
- 50 years for writs of morts d’ancestor.
- 30 years for claims based on possession of the claimant.10
As time went on, proof of lawful origin ‘… became for practical purposes impossible (as) the evidence was not available’ to assess claims of novel disseisin. Judges apparently instructed juries that ‘if there was evidence of enjoyment for the period of living memory, they could assume that the right had existed since 1189′. As time wore on, this became impossible to prove.
Statute of Limitations Act 1623
It was not until 1623 that the Statute of Limitations Act 1623 fixed a 20 year period for ‘writs of formedom’. Until the passage of the Act, no limitation periods had existed for other, non land-related, claims. The new Act included limitation periods for non-land-related claims as follows:
- Two years: Actions for slander.
- Four years: Actions of trespass to the person, assault, menace, battery, wounding and imprisonment.
- Six years: Actions on the case (other than slander); actions for account, other than such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants; actions of trespass, detinue, action sur trover, and replevin for taking away of goods or cattle; actions of debt grounded upon any lending or contract without speciality; and actions of debt for arrears of rent; actions of trespass to land.
The 1623 Act also provided for an extension of time where the plaintiff was under the age of 21, a married woman (‘feme covert’), mentally disabled (‘non compos mentis’), imprisoned, or ‘beyond the seas’. However, these changes still proved difficult in practice and often relied on ‘legal fictions of presumed grants’ effectively based on ‘time immemorial’ (that is, since 1189).
The reason for a six year limitation period for ‘Actions on the case’ may never be known. According to a report of the UK Law Commission in 2009, ‘… we have been unable to trace any information on the reason why the six year period was thought appropriate’. However, the six year period ‘which at present applies to the majority of such actions … is familiar to the general public’.
The Law Commission added that: ‘No limitation period applied to contracts under seal (that is, specialties), actions of account between merchants, their servants or factors, actions brought for debt under a special statute, or actions brought on a record’.
Limitation periods for land related actions were reviewed by the Real Property Commissioners in 1829. The Commissioners recommended the retention of the 20 year period, implemented in the Real Property Limitation Act 1833 and the Prescription Act 1832. The Commissioners also found that no limitation periods applied in some cases, including where seisin did not need to be alleged. And, there were no statute of limitations applied to actions by the Church. The 20 year period was then reduced to 12 years by the Real Property Limitation Act 1874.
Limitation periods were further reviewed in 1936 and the following recommendations made.
- That a single limitation period of six years should apply to actions in simple contract, and actions in tort.
- A new limitation period of 12 years (down from 20) was created for actions on a specialty.
Andrew Warland
Sydney, Australia