If you are about to take legal action, or if you think you are being sued, you should consider proposing a toll agreement. Second, the applicant attempted to evade status by invoking the toll agreement and arguing that the defendant had been properly deterred from relying on a prescription defence. Here, the toll agreement spoke for itself. The agreement did not prevent the defendant from asserting the law, since the right was obsolete from the beginning of the toll period. Id. at `7- `8. Remember that the lawyer signed the toll contract in August 2013, but did not announce the toll until months later – in February 2014 – which is more than two years later than the complainant`s alleged complication in January 2012. The applicants simply failed to explain the express terms of the agreement that the plaintiff became a party to the agreement on February 3, 2014, and the defendant expressly waived “a defence of the statute of limitations that could have been invoked before the toll date.” Id. at `8- `9. If there is a takeaway of this post, that`s it.
The clear language of the agreement (and the erroneous timing of the lawyer) made the difference. The threat of possible litigation is the elephant in space that makes an agreement on tolls effective. A savvy potential complainant may use this elephant as an advantage, as a potential accused may well lean back to not be prosecuted. Sometimes, however, the prescription is suspended or “whispered” for a while before running again. There are several different reasons why there may be a toll, one of which was triggered in response to the onset of the coronavirus crisis. In fact, on April 6, 2020, the California Board of Justice passed Emergency Rule 9, which suspended the statute of limitations for all civil cases in California virtually 90 days after Governor Gavin Newsom`s resolution – to protect parties who have pre-cause causes or during the co-19 pandemic. Toll cases can be very complicated, and you need to talk to a lawyer. Under the toll agreement, counsel for the applicant should have a firm understanding of all prescription issues.
Information gathered informally during negotiations should not be subject to costly requests for investigation.