46.—(1) Subject to paragraph (5)[F1 and to any regulations under Article 22 of the Employment (Northern Ireland) Order 2003], the Tribunal shall not consider a complaint under Article 38 unless it is brought before whichever is the earlier of—
(a)the end of the period of 3 months beginning with the day on which the complainant first had knowledge, or might reasonably be expected first to have had knowledge, of the act complained of; or
(b)the end of the period of 6 months beginning with the day on which the act was done.
(2) Subject to paragraph (5), a county court shall not consider a claim under Article 40 unless proceedings in respect of the claim are instituted before the end of the period of 6 months beginning with the day on which the act complained of was done.
(3) Subject to paragraph (5), the Tribunal or county court shall not consider an application under Article 42(2)(a) unless it is made before the end of the period of 6 months beginning with the day on which the act to which it relates was done; and a county court shall not consider an application under Article 42(4) unless it is made before the end of the period of 5 years so beginning.
(4) Subject to paragraph (5), a county court shall not consider an application under Article 43(4) in relation to an undertaking under that Article unless it is made before the end of the period specified in the undertaking by virtue of paragraph (3)(d) of that Article.
(5) A court or the Tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.
(6) For the purposes of this Article—
(a)when the inclusion of any term in a contract renders the making of the contract an unlawful act, that act shall be treated as extending throughout the duration of the contract; and
(b)any act extending over a period shall be treated as done at the end of that period; and
(c)a deliberate omission shall be treated as done when the person in question does an act inconsistent with doing the omitted act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it were to be done.
Valid from 18/04/2011
46A.—(1) Paragraph (2) applies where—
(a)there is mediation in relation to a relevant cross border dispute giving rise to proceedings under this Order; and
(b)the fixed period specified in relation to such proceedings by Article 46(1) to (4) (“the limitation period”) would, apart from this Article, expire—
(a)in the period of 8 weeks after the date on which the mediation ends;
(b)on the date on which the mediation ends; or
(c)after the date on which all of the parties to the dispute agree to participate in the mediation but before the date on which the mediation ends.
(2) Where this paragraph applies, the limitation period is extended so that it expires on the date falling 8 weeks after the date on which the mediation ends.
(3) For the purposes of paragraph (1) and (2), a mediation in relation to a relevant cross-border dispute ends on the date of the first of these to occur—
(a)all of the parties reach an agreement in resolution of the dispute;
(b)all of the parties agree to end the mediation;
(c)a party notifies all of the other parties of that party's withdrawal,
(d)a period of 14 days expires after a request made by one party to another party for confirmation of whether the other party has withdrawn and the other party does not respond in that period, or
(e)a period of 14 days expires after the date on which the mediator's tenure ends (by reason of death, resignation or otherwise) and a replacement mediator has not been appointed in that period.
(4) In this Article—
“the Directive” means Directive 2008/52/EC of the European Parliament and of the Council of 21st May 2008 on certain aspects of mediation in civil and commercial matters;
“mediation” and “mediator” have the meanings given by Article 3 of the Directive; and
“relevant cross-border dispute” means a cross-border dispute within the meaning given by Article 2 of the Directive.]
F2Art. 46A inserted (18.4.2011) by Cross-Border Mediation Regulations (Northern Ireland) 2011 (S.R. 2011/157), reg. 12(4) (with reg. 1(2))