Here`s what you need to know. The applicant underwent surgery on January 12, 2012 and suffered a complication that a surgeon would have caused due to “problems” and “dysfunction” with surgical devices. Id. at `1-2.` Despite the complication, the plaintiff was dismissed a few days later in good condition and, although she was apparently no worse for wear, she contacted a lawyer in September 2013 after seeing a television commercial. Id. at 2. The timing is obviously important – the plaintiff`s contact with counsel was only a few months after her trial. If you are about to take legal action, or if you think you are being sued, you should consider proposing a toll agreement. Id. to 2 (by adding). The text highlighted at the end will be important because counsel for the complainants executed the toll agreement on August 9, 2013, but did not pass on the complainant`s name (and therefore the toll) until February 3, 2014, more than two years after the applicant`s proceedings. Id.
at 2. 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. A toll agreement is an agreement to waive the right to request the dismissal of disputes due to the expiry of a statute of limitations. Its purpose is generally to give a party additional time to assess and determine the legality and viability of its rights and/or the amount of its harm, without the need for legal action. During this period, the parties waive any prescription defence that would otherwise occur during such a period. Co-accused should consider toll agreements if they wish for additional time to consider filing counter-claims against each other. Under the laws of some states, counter-claims must be filed while proceedings are pending, requiring defendants to decide, before trial, whether to assert counter-claims. In some cases, this decision could be imposed on a defendant before it is clear whether the applicant has a significant liability case.
When counter-claims are invoked, the defendants may focus too much on the transfer of responsibility between them and involuntarily assist the plaintiff in determining liability or increasing the value of the case by developing facts that have been overlooked by the applicant. The plaintiff can take advantage of the defendant`s fear by asking the defendant to cooperate in another way. Thus, under the toll agreement, the applicant could require the defendant to provide documents and/or answer questions about the litigation.