Laches (Law French: “remissness”, “slackness”, from Old French laschesse) is an “unreasonable delay pursuing a right or claim… in a way that prejudices the [opposing] party”. Laches is an equitable doctrine invoked when, through an unreasonable delay, plaintiff fails to act in a timely fashion in asserting its rights. But while laches properly focuses on plaintiff’s blame in sitting on its rights, ultimately it is the harm to defendant from plaintiff’s inaction that forms the basis for the defense. As an affirmative defense, defendant bears the burden of proof in establishing both unreasonable delay and harm therefrom: mere delay or passage of time is insufficient
Put another way, failure to assert one’s rights in a timely manner can result in a claim being barred by laches. Laches is associated with one of the maxims of equity.
The doctrine of laches applies only to equitable claims; it is a defence advanced by a defendant against a plaintiff who, though barred by no statutory bar, nevertheless ought not to succeed by reason of his apathy. But it can never be pleaded against a plaintiff who has a legal claim
The essential element of laches is that there has been an unreasonable delay by the plaintiff in bringing the claim. Because laches is an equitable defense, it is ordinarily applied only to claims for equitable relief (such as injunctions), and not to claims for legal relief (such as damages). Sometimes courts will also require that the party invoking the doctrine has changed its position as a result of the delay, but that requirement is more typical of the related (but more stringent) defense of estoppel.
A defense lawyer raising the defense of laches against a motion for injunctive relief (a form of equitable relief) might argue that the plaintiff comes “waltzing in at the eleventh hour” when it is now too late to grant the relief sought, at least not without causing great harm that the plaintiff could have avoided. If a court does accept the laches defense, it can decide either to deny the request for equitable relief or to narrow the equitable relief that it would otherwise give. Even if the court denies equitable relief to a plaintiff because of laches, the plaintiff may still have a claim for legal relief if the statute of limitations has not run out.
Determining the existence or otherwise of inordinate delay in prosecuting a case that would amount to laches
It is worth noting that equity does not fix a specific time limit after which claims may be said to be barred or stale, but considers all the circumstances of each and every case. However, in determining the existence or otherwise of such inordinate delay as to amount to laches, two main issues may be considered. These are:-
(1) Acquiescence on the part of the plaintiff which, in this sense, does not mean standing by while violation of a right is in progress, but assent after the violation had been completed and the plaintiff has become aware of it. This is because it is clearly unjust to give a plaintiff a remedy where, by his conduct, he has done that which might not unreasonably be regarded as amounting to a waiver of it.
(2) Any change of position that has occurred on the defendant’s part.
Distinction between Laches and Acquiescence
While it is true that there is overlap between laches and acquiescence and there is a high degree of similarity between the two in pleadings, there is indeed a subtle, but crucial distinction. It is instructive in this vein, to refer to two cases, to throw light on the nature of the equitable defences.
Firstly, in consideration of laches, Sir Barnes Peacock in Lindsay Petroleum Co. v. Hurd provides an excellent description of laches;
“The doctrine of laches is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, where by his conduct and neglect he has, though not perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.
Acquiescence on the other hand however, can occur without delay; Fry. J. in Wilmott v. Barber laid out the law when he said: “It has been said that acquiescence which will deprive a man of his legal rights must amount to fraud, and in my view that is an abbreviated statement of a very true proposition. A man is not to be deprived of his legal rights unless he has acted in such a way as would make it fraudulent for him to set up those rights”.
Can laches ever occur when plaintiff acts within the limitations period?
Statutes of limitation are pure creatures of legislatures; laches is a judicially created doctrine, and as a result some courts (those few who are modest) have expressed concern over separation of powers problems that would arise if laches is utilized to bar a claim brought within the limitations period. Professor Dobbs, the guru of such things, has traced the origins of laches to subject areas where there was no statute of limitations, and thus laches functioned as a form of judicial flexible statute of limitations. But where the legislature has acted, laches should not be available.
The question there is, has so much time passed, even though the statute of limitations hasn’t passed, that it would be unfair to allow the plaintiff to sue. The court has to believe that the plaintiff waited for an unreasonably long time and that the defendant has had something happen that reduced his chances to defend the case.
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