2. Procedures and Evidence
E. Limitation Periods
5. CURRENT APPLICATIONS
The application of limitation periods in the 17 focus countries largely reflects on the nature of the cause of action. In cases that bring climate or environmental claims, litigation reflects a mix of traditional legal frameworks that have adapted to the unique challenges of environmental claims. In countries like Australia, Canada, and the UK, respective statutory limitation periods apply based on the nature of the claim. However, specific cases illustrate innovative adaptations to these rules. For instance, in Canada, the concept of 'continuous harm', established in cases like Hole v Chard Union, allows for an extension of limitation periods in ongoing environmental harm situations. Similarly, in Germany, the LLiuya vs. RWE case highlighted the use of the "continuing harm doctrine," aligning the limitation period with the time when the claimant becomes aware of the harm. In India, where no specific climate litigation limitation period exists, the application of the general Limitation Act, as seen in the State of Madhya Pradesh vs. Bhailal Bhai, allows for some flexibility.
Canada:
Hole v Chard Union: established that in the legal test for continuous harm, there must be repetitive acts or omissions of the same kind as the original wrongful act that initiated the claim.
Germany:
LLiuya vs. RWE: The Higher Regional Court of Hamm found that a statute of limitations would not bar the claim because the limitation period had to be assessed in respect of the specific claim, Section 194 BGB. The claim in question arose from an imminent infringement of the claimant's property, which had been present since 2009. The continuing harm doctrine, therefore, did not help the claimant here. However, the limitation period could not start before the creditor became aware or, in the absence of gross negligence, had to become aware of the circumstances giving rise to the claim. The Higher Regional Court of Hamm held that it could not be assumed that the claimant living in Peru even knew of the responsibilities of carbon majors in Europe. Therefore, the court did not apply the standard three-year limitation period but instead relied on the absolute ten-year limitation period under Sec. 199 (4) BGB, which had not yet expired.
India:
State of Madhya Pradesh vs. Bhailal Bhai: the Supreme Court held that in the case of a continuing wrong, a fresh period of limitation begins to run at every moment of the time during which the breach continues.
