ABSTRACT
Contributory negligence, consent and illegality are all defences of substance in as much as they require the courts to assess them in the context of a detailed examination of the circumstances of each case. By way of contrast the defence of limitation is one that functions only at the level of form in that it goes to the remedy not the right101 – although in the case of property rights, the effect of limitation is in reality to extinguish title.102 At common law, limitation is entirely a creature of statute and in order to be effective it has to be specifically pleaded;103 payment of a statute barred debt cannot therefore be recovered on the grounds of lack of an obligation to pay. With regard to equitable remedies there is no actual statutory limitation as such,104 but time limits will be applied by way of analogy.105
