Posted in Compliance, Conservation and preservation, Electronic records, Governance, Information Management, Information Security, Legal, Records management, Retention and disposal, Security

Destroying digital records – are they really destroyed?

Most people should be aware that pressing the ‘delete’ option for a file stored on a computer doesn’t actually delete the item, it only makes the file ‘invisible’. The actual file is still accessible on the disk and can be retrieved relatively easily or using forensic tools until the space it was stored on is overwritten.

Traditional legacy electronic document and records management (EDRM) systems have two components:

  • A database (e.g., SQL, Oracle) where the metadata about the records are stored
  • A linked file share where the actual objects are stored, most of which are copies of emails or network file share files that remain in their original location.

In most on-premise systems, email mailboxes, network file shares, and the EDRMS database and linked file share are likely to be backed up.

When a digital record comes to the end of its retention and is subject to a ‘destruction’ process, how do you know if the record has actually been destroyed? And even if it is, how can you be sure that the original isn’t still stored in a mailbox, network file share, or a back up?

This post examines what actually happens when a file is ‘deleted’ from a Windows NT File System (NTFS), and questions whether digital records stored in an EDRMS are really destroyed at the end of the retention period.

The Windows NTFS Master File Table (MFT)

Details of every file stored on a computer drive will be found in the NTFS Master File Table (MFT).

In some ways, the MFT operates like a traditional electronic document management system – it is a kind of database that it records metadata about the attributes of the digital objects stored on the drive. These attributes include the following:

attriblist

As noted in the diagram above, the details stored by the MFT include the $File_Name and $Data attributes.

  • The $File_Name attributes include the actual name of the file as well as when it was created and modified, and its size.  This is the information that can be seen via File Explorer and is often copied to the EDRMS metadata.
  • The $Data attribute contains details of where the actual data in the file is stored on the disk (in 0s and 1s) or the complete data if the file is small enough to fit in the MFT record.

If the MFT record has many attributes or the file data is stored in multiple fragments on a disk (for example as a file is being edited), additional MFT ‘extension’ records may be created.

When a file is deleted, the MFT records the deletion.

  • If the file is simply deleted, the record will remain on the disk and can be recovered from the Recycle Bin.
  • If the file is deleted through SHIFT-DEL or emptying the Recycle Bin, the MFT will be updated to the ‘Deleted’ state and update the cluster bitmap section to set the file’s cluster (where the data is stored) as being free for reuse. The MFT record remains until it is re-used or the data clusters are allocated in whole or part to another file.

So, in summary, ‘deleting’ a file does not actually delete it. It may either:

  • Store the file in the Recycle Bin, making it relatively easy to recover, or
  • Change the MFT record to show the file as being deleted but leave the file data on the desk until it is overwritten.

How does an EDRMS store and manage files?

The following summary relates to a well-known Electronic Document and Records Management System (EDRMS). Other systems may work differently but the point is that records managers should understand exactly how they work and what happens when electronic files are destroyed at the end of a retention period.

Most EDRM systems are made up of two parts:

  • A database (SQL, Oracle etc) to store the metadata about the record.
  • An attached file store that stores the actual digital objects.

When EDRM systems are used to register paper or physical records (files and boxes), only the database is used.

When digital records are uploaded to the EDRMS:

  • The metadata in the original file, including the file type, original file name, date created, date modified and author are ‘captured’ by the system and recorded in the new database record.
  • Additional metadata may be added, including a content or record ‘type’.
  • The record will usually be associated with a ‘container’ (e.g., ‘file’). This containment makes the record appear to be ‘contained’ within that container, whereas in fact it is simply a metadata record of an object stored elsewhere.
  • The original record filename is changed to random characters (to make it harder to find, in theory) and then stored on the attached (usually Windows NTFS) file store, often in a series of folders.
  • A link is made between the database record and the record object stored in the file store (the MFT record).

When the end-user opens the EDRMS, they can search for or navigate to containers/files and see what appears to be the digital objects ‘stored’ in that container/file. In reality, they are seeing a link to the object stored (randomly) in the file store.

What happens when an EDRMS record is destroyed?

If there is no requirement to extend their retention, or keep them on a legal hold, records may be destroyed at the conclusion of a retention period.

For physical records, this usually means destroying the physical objects so they cannot be recovered, a process that may include bulk shredding or pulping.

For digital records, however, there may be less certainty about the outcome of the destruction. While the EDRMS may flag the record as being ‘destroyed’ it is not completely clear if the destruction process has actually destroyed the records and overwritten the digital records in a way that ensures its destruction to the same level as destroyed paper files. 

Also:

  • If the original associated NTFS file share becomes full and a new one is used, the original is likely to be made read only.
  • There is likely to be a backup of the EDRMS.
  • The original records uploaded to the EDRMS probably continue to exist on network files shares, in email, or in back up tapes.
  • Digital forensics can be used to recover ‘deleted’ files from the associated file share.

Consider this scenario:

  • An email containing evidence of something is saved to a container in an EDRMS.
  • The container of records is ‘destroyed’ after the retention period expires.
  • A legal case arises after the container is ‘destroyed’
  • A subpoena is made for all records, including those specific records.
  • Has the record actually been destroyed, or could it still be recoverable, including from backups or the digital originals?

Is it really possible to destroy digital records, and does it matter?

Yes, records can be destroyed by overwriting the cluster where the record is kept, and some EDRM systems may offer this option.

But:

  • Do EDRM systems overwrite the cluster when a digital record is destroyed in line with your records retention and disposal authorities, or simply mark the record as being deleted, when it is still technically recoverable?
  • Could the record still exist in the network file shares or email, or in backups of these or the EDRMS?
  • Might it be possible to recover the record with digital forensics tools?
  • Does it matter?

It might be worth asking IT and your EDRMS vendor.

References:

 

 

Posted in Classification, Conservation and preservation, Electronic records, Information Management, Records management, Retention and disposal, SharePoint Online

SharePoint Content Types – A records management view

SharePoint Content Types (CTs) have been a fundamental element in SharePoint architecture since they were introduced in 2007. They are also the cause of some divided opinions, in favour of (a) using multiple, ‘custom’ CTs to control content, or (b) minimising their use in favour of alternative options such as metadata choices.

A recent tweet from Nate Chambelain (@chambernate) read as follows:

You can have multiple content types in lists and libraries. They can all have unique metadata, templates, forms, retention policies, workflows, etc. Content types are EVERYTHING.

While CTs can do a lot as suggested by Nate, it is important to understand what they are, and what they can do, as part of an overall architecture model if you are planning to use SharePoint to manage records.

SharePoint administrators (and information architects and others) may have different views on this subject. There is, on one hand, the view that multiple ‘custom’ CTs are a good thing as they provide more control over content. On the other hand, there is the view that too many CTs are a bad thing because they are not easy to implement (see below for details) and it makes the environment harder to manage.

The key is getting the balance right. In my own opinion based on a decade of working with SharePoint, it is better to create custom CTs only where they provide specific useful functionality and otherwise using metadata columns and/or folders.

Content Types have been around since 2007

Content Types (CTs) were introduced in SharePoint 2007 (SP2007 usually known as MOSS2007), the immediate precursor to SP2010. CTs, it was said, would allow organisation to:

  • Have multiple document types associated with a single library.
  • Have a different document template in each CT.
  • Have different workflows and metadata for each CT.

List CTs could also be used to capture different metadata in the same list.

What are Document Types?

Document types examples might include:

  • Contracts
  • HR document (e.g., specific to a staff member)
  • Invoices
  • Plans
  • Minutes

Most organisations will have (and share) a relatively standard set of document types.

While it is tempting to create a CT for each document type (similar to the way some document management systems do this), in my experience this can create considerable overhead for very little benefit.

In my view, document types should only ‘map’ to custom ‘content types’ if there is a reason to use CTs for a specific purpose (see below for examples).

Otherwise, it is far easier and more efficient (in terms of management) to create additional metadata columns including, if required, a ‘choice’ metadata column to define the document type.

Every Content Type has a parent

Every new site collection includes a range of default CTs and each has a parent. The primary default CTs are:

  • ‘Document’, ‘Folder’ (and, where enabled ‘Document Set’) for document libraries.
  • ‘Item’ for lists.
  • ‘Event’ (parent is ‘Item’) for calendars

Your starting point, when thinking about CTs, is whether you will (a) use the default CTs or (b) create custom CTs – or (c) a combination of both. Most organisations will have a combination.

By way of reference, we had 500 site collections and fewer than 30 custom CTs, each used for a specific purpose. We did not use the CT Hub but created CTs directly on the sites where they were required.

How many custom Content Types do you really need?

The answer is, ‘it depends’.

The case for multiple custom CTs:

  • Custom CTs allows organisations control of specific types of content at a more granular level than the document library.
  • Having multiple custom CTs requires more overhead to create, implement and manage. First, each custom CT must be created via Site Settings. In each document library setting where the CT is to be used, a setting must be enabled to allow management of CTs. And finally, each CT must be added to each document library (or list).
  • Questions to consider: Who will enable the library setting then add each CT that is required? Who will manage metadata conflicts if different CTs use the same or very similar metadata? How will end users react to have to select a CT every time they just want to save a document (including via synced libraries in File Explorer)?

The case for fewer CTs:

  • Fewer or more selective use of custom CTs allows organisations to manage content at the logical aggregation of a document library rather than CT-linked content within that aggregation, using custom CTs only where necessary. This requires less overhead to manage.
  • Site Collection Administrators or Site Owners can create CTs when and only if they are needed.
  • Site Owners (and end users) can more easily manage content within a document library by using folders and/or metadata to group content and/or apply workflows.
  • Choice metadata columns (e.g., for ‘Document type’) may be a better option.
  • Site Owners can create document libraries with names the comply with naming conventions and apply retention policies to the entire library.

The bottom line – just because you can create multiple custom CTs, it doesn’t mean you should. It is important to understand the broader architecture of the entire SP environment and what you are seeking to achieve.

As a general recommendation, I would suggest creating only the CTs that you really need (based on a content management design), and consider using separate libraries (or sites) and/or metadata to define content types. For example, consider having a single library called ‘Meetings’ or ‘Policies’ with useful metadata columns.

More custom CTs will mean a more complex environment to manage, especially from a records management point of view.

How are Content Types created and then applied

New custom CTs are created via Site Settings – Site Content Types.

O365_SPO_ContentTypeCreate1

As can be seen above, every new CT is based on an existing (‘parent’) CT that exists in a grouping of ‘parent content types’. For example:

  • The ‘Document’ CT is found in the ‘Document Content Types’ group. Surprisingly that group also includes ‘Master Page’, ‘Site Page’ among others.
  • The ‘Document Set’ CT is the only option in the ‘Document Set Content Types’ group.
  • The ‘List’ CT is one of multiple options in the ‘List Content Types. It includes ‘Event’ found in calendars – ‘Event’ is the child of ‘Item’.

Once the new CT is created, additional columns can be added to it, including from the Managed Metadata Service (MMS), if used. The new, custom CT can now be added anywhere on the site.

Two steps are required to add a CT to a document library or list:

  • Go to the library or list settings and click on ‘Advanced’.
  • In the ‘Advanced’ section, click on the option to ‘Allow management of content types’.

O365_SPO_ContentTypeEnable

Note that enabling this option has an impact on the ‘+ New’ option in the library ribbon menu – see below.

Once enabled, a new ‘Content Types’ section appears in the Library Settings, displaying all the CTs now available in the library. Only the standard ‘Document’ CT will appear and show as the default option.

Someone (SP Admin, Site Collection Admin or Site Owner) must now click on ‘Add from existing site content types’, and choose the CT to be added. This action could probably be scripted however it is a one-off event.

Once the custom CTs are added, another (but only one) CT may be set as the default. The others are visible by default but can be made invisible if required.

Any unique columns in any of the CTs will now appear in the ‘Columns’ section, showing the source of the column (‘Used in’).

Folders or document sets?

While it is possible to create folder-based CTs, with unique metadata, to group documents, it may be more useful to create document set-based CTs as these provide much more flexibility. Unlike folders, document sets also have a unique document ID (that same one that is applied to all documents in the library, with a different sequential number).

How CTs are used

Once they are enabled, the new CTs now appear in the ‘+ New’ drop down menu for the library. End users may now choose which CT they want to add to the library (or it may be the default).

O365_SPO_ContentTypeChoiceDocLibrary

As can be seen above, the option to create an Office Online document is no longer available. (These options can, however, be added back via the ‘Edit New Menu’ option, however there may be reasons not to want to allow this).

Each document-based CT includes the default ‘Document’ template. This means that if an end-user clicks a custom CT from the ‘New’ menu, it opens Word Online. Should it be necessary for the end user to, say, create an Excel document the following steps must be followed:

  • Click on library settings
  • Click on the custom CT
  • Click on ‘Advanced settings’ (which will show ‘template.dotx’ as the default template)
  • Upload a new document and choose the file – e.g., a blank spreadsheet with a sensible name, or a given template that must be used every time. Note that the template must be able to be opened in the online versions of the Office applications.

If the document library contains mandatory metadata, and the end user is working directly from the library in SPO, they will be required to add the mandatory metadata.

If the end-user saves a document to a synced library in File Explorer, and that library includes CTs, the end user will be asked to select the CT from a drop down list in a separate dialogue. If the CT includes any mandatory metadata, it will not be possible to add a new document via File Explorer.

What about retention policies?

The ability to apply retention policies in CTs is only available as an ‘auto-apply’ option to those who have an E5 licence. Essentially, when a new retention policy is created (based on a label that defines the retention options), it can be auto-applied to specific CTs. For more details, see this article by Joanne Klein.

What this means is that individual documents contained in the CT (not the CT itself) will be subject to disposal at the end of the retention period. As noted in my earlier post on managing retention outcomes, disposal may be automatic or subject to a review.

Specific use cases and careful consideration of the options and implications need to go into planning for the use of retention policies on custom CTs. While the option may appear to be a simple way to manage the retention outcomes of specific types of content, in reality it could be very hard to manage in large organisations, especially as individual documents are the subject of disposal, not the aggregation (CT or library).

Joanne Klein’s article above refers to a CT named ‘Contract document’. While this is just an example, most contract documents will be subject to disposal review ‘n’ years after the contract has expired. Therefore, retention should be based on a metadata column named something like ‘Contract Expiry Date’. Many organisations, in my experience, keep contract documents well after the contract expiry date. The use of retention policies on contract-related CTs needs to be considered carefully.

Where custom CTs could be useful

Custom CTs can be useful to manage ‘files’ within a broader grouping or aggregation. The following are actual examples from my organisation:

  • To manage individual staff files (created as custom document sets), in a document library that is used to manage all staff files.
  • To manage a collection of contract documents (stored within a custom document sets), in a document library (or libraries) that has retention enabled at the library level. In this example, folders would probably be just as suitable.
  • To manage building/property documents (again stored within a custom document set) in one or more document libraries.

The primary reason that using custom CTs here is better than using simple folders is that the custom document sets can contain specific metadata that is needed, such as ‘Staff ID’ or ‘Staff Name’, ‘Building Number’ or ‘Building address’, or ‘Company’.

Conclusion

Content types are, indeed, a core part of SharePoint. However, unless your organisation is small or you only want to control selected content via the use of custom CTs, it may be easier and more efficient to minimise their use and use metadata choice columns instead.

Applying retention policies to CTs – assuming that is considered to be a viable records management option – is only available to organisations that have an E5 licence. This option should be considered carefully, especially the outcomes when the retention period expires.

Custom CTs can be very useful when used correctly. It is important to have a good understanding of how they work and where they can be applied most usefully. Otherwise, there is a high potential to add considerable complexity and management overhead to your SharePoint environment.

Posted in Conservation and preservation, Digital preservation, Electronic records, Records management, Retention and disposal

Ensuring long term access to digital information

(This is a version of an article written for the RMAA magazine Informaa Quarterly, due to be published in May 2010).
In February 2010, the Blue Ribbon Task Force on Sustainable Digital Preservation and Access (BRTF-SDPA, brtf.sdsc.edu), a US-based group established in 2007 and funded by several private and public organisations, published a report titled ‘Sustainable Economics for a Digital Planet: Ensuring Long-Term Access to Digital Information’.
The BRTF-SDPA report examined the long-term preservation of digital information from an economic perspective, noting that ‘… economically sustainable preservation (of digital information) is … an urgent societal problem’.  The report quotes a 2008 IDC report stating that the volume of information now created exceeds all available storage.
The BRTF focussed its attention on digital information created within four key areas: scholarly discourse; research data; commercially owned cultural content; and collectively produced web content.  The report did not examine digital information produced by public sector agencies because there are already ‘… well articulated mandates for preservation and well defined organisations with clear roles and responsibilities’ to preserve the digital information produced by those agencies.
The report confirms the frequently cited preservation and conservation mantra that the main business case for preservation is use.  The dilemma for those making decisions about preservation is that access – and therefore use – is impossible without preservation; however, if there is no demand for access, there will be no preservation. What to preserve is the problem.
Identifying what should be preserved for later use requires significant effort that requires the agreement of a range of stakeholders – those who own, will select, preserve, pay for preservation to take place and who will eventually benefit.  The interests of these stakeholders need to be aligned as much as possible; and yet those who make preservation decisions now must attempt to do so without any real idea of what future stakeholders may want to access.
The report makes the point that a key threat to ‘persistent access’ is the costs involved, particularly where the costs outweigh the perceived benefits.
The report presents digital information as economic goods that have four essential attributes: the derived demand for access rather than preservation; their nature as depreciable durable assets that can suffer from physical degradation and loss of functionality; the ubiquity of access (known as ‘non rivalrous consumption’) which can lead to ‘free riding’; and the temporarily dynamic and path dependent nature of the digital preservation process throughout the lifecycle of the information.
These attributes, according to the report, mean that problems may be encountered aligning incentives to preserve among beneficiaries, owners and preservers.  The closer the alignment, the more likely that appropriate preservation actions will be taken.  Weak or misguided incentives to preserve are the greatest risk to preservation.
According to the report the six key conditions necessary to ensure the economic sustainability for digital information are: recognition of the benefits; selecting materials with long-term value; providing incentives for preservation; establishing effective governance arrangements and allocating resources; and ensuring that timely actions are taken before digital information is lost.
As the report notes, solving the economic challenges of digital preservation is neither easy nor insuperable.  A careful balance needs to be established between the perceived future  value of digital information, incentives for its preservation, and the roles and responsibilities of key stakeholders.
Posted in Conservation and preservation, Legal, Records management, Retention and disposal

A brief history of the origins of the Statute of Limitations

(NOTE: This article was completely re-revised on 1 February 2010, all original content was changed).
Summary
The retention – and eventual disposal – of records is a common business practice, despite occasional concerns about what gets destroyed.  Justice Scalia, in Arthur Andersen LLP v United States (No. 04-368, 2004) said as much about the destruction of records relating to Enron by Arthur Anderson ‘… we all know that what are euphemistically termed “record-retention programs” are, in fact, record-destruction programs, and that one of the purposes of the destruction is to eliminate from the files information that private individuals can use for lawsuits and that Government investigators can use for investigations.’
A key factor in all records disposal programs is determining how long records should be kept.  In many parts of the English speaking world, seven years is frequently cited as the minimum period that records must be kept. But what is the origin or significance of this period of time?
It seems, based on the available evidence, that the seven year period is based on an arbitrary period or time limit of six years, set in 1623.  Some jurisdictions with English legal traditions around the world have retained the same minimum six year period, for example, ‘An action for an account shall not be brought in respect of any matter which arose more than six years before the commencement of the action.'(s4(2) Limitation Act 1950 (New Zealand)). Others have decided to go with seven years, based on (it would seem) the expiry of the six year period.
It has been claimed by some commentators that the seven year period is based on Deuteronomy 15:1 – 2, which refers to the release of debts after a seven year period, and Deuteronomy 31:10 which has similar references.  There is also, as we will see, Jewish influence on English property law during the same period which set the scene for the eventual creation of statutes of limitations, but these links do not provide credible links to the specific period of time that was chosen.  If anything, the origins of a set timeframe for (legal) actions can be traced to Roman Law but, again, the links with early English property law is not strong.
Roman Law
Roman law, as outlined in the Twelve Tables (see, for example, http://www.unrv.com/government/twelvetables.php), included the principle for property related matters of usucapio, literally ‘taking by use’ (Table VI.5).  ‘Usucapio of movable things requires one year’s possession for its completion; but usucapio of an estate and buildings two years.’
The concept of usucapio is in many respects the basis for the English expressions ‘possession is nine-tenths of the law’, and ‘finders keepers’.  The timeframes defined in the original tables were eventually extended by Justinian but ‘it remained in principle a method of acquiring ownership’.  (House of Lords, R v Oxfordshire County Council and Others, 24 June 1999).
Roman law also established the concepts of possession (possessio) and ownership (dominium). (see http://penelope.uchicago.edu reference in sources).
Of interest is that Henry de Bracton, a Royal judge during the time of Henry II, wrote considerably on Roman Law, although his writings and the value of them have been disputed (see Wikipedia article).
English Law
English law, on the other hand, never accepted the idea that long possession of property was the basis for ownership or acquiring title. Instead, the continual possession of property over a passage of time removed the original owner’s right to claim it back.
Blackstone’s Commentaries on the Laws of England (1765-1769) notes that William I introduced feudal tenures into England after 1066.  An essential part of this new governance model was that ‘the king is the universal lord and original proprietor of all the lands in his kingdom; and that no man doth or can possess any part of it, but what has mediately or immediately been derived as a gift from him, to be held upon feodal fervices’.  This meant that the tenant’s possessory right in land was limited to usufruct, as granted by the King, who retained absolute dominion over the land.
Usufruct means that the tenant, or ‘fief’ was required to render service to the sovereign in return for the privilege of using the land.
According to Judith Shapiro, William also brought with him Jews who were owned by him and became his moneylenders.  Jews could not own land, but they could lend money using land as the collateral security, and presumably over a period of time.  While the contracts established at the time (‘shetar’, also known as ‘Jewish gage’) did include a clause from the bible (Deuteronomy 24:10-11) protecting debtors, it is highly doubtful that they released debt at the end of 7 years – in fact, Deutoronomy 15:3 clearly distinguishes ‘foreigners’ from this requirement.
According to the UK Law Commission April 2009 report ‘Why does the present law need reform’, the first limitation periods applied only to land-related actions.
Henry I succeeded William in 1100 and reigned until his death (of gluttony) in 1135.  Henry I brought about many changes to English feudal law recognised in documents such as ‘Leges Henrici Primi’ (written around 1115) and ‘Quadripartitus’.  One important change introduced was a limit on the date by which a ‘disseisor’ (that is, a person claiming ownership of land as a result of adverse possession (‘assize of novel disseisin’)) could claim ownership.
In R v Oxfordshire County Council and others, 1999, it is noted that ‘… the medieval real actions for the recovery of seisin were subject to limitation by reference to past events.
Shapiro (ibid) notes that, during Henry II’s reign (1154 – 1189), ‘… the King’s court assumed an increasing share of litigation that had previously only been heard in local courts.  This was done through the issuance of Royal writs, including the new ‘writ of debt’, used to collect loans of money.
Writs of Entry were also created during this period, according to Joseph Biancalana.  Writs of entry were used to allege that a defendant had no entry into land other than by a transaction or taking that did not authorise him to hold the land, for a period of years (‘ad terminum qui preterit’), defined in three degrees.
Biancalana claims that the timeframe set out in the three degrees was developed from the writs of ‘gage’ (debt).
Shapiro claims that, eventually, the Jewish moneylending practices became ‘a weapon of socio-economic changes that tore the fabric of feudal society and established the power of liquid wealth in place of land holding.’  Riots broke out in 1190 and many of the original documents were destroyed (leading, incidentally, to the creation in 1200 of local Archives (Archae) and duplicate copies).
The UK Law Commission report noted above states that,
  • Before 1237, ‘… plaintiffs could not claim land on the basis of seisin before the day in 1135 when Henry I died.’
  • In 1237, the Statute of Merton, 20 Hen III (1235) stated that a writ of right for land-related claims could not refer back to any time before the coronation of Henry II in 1154.
  • In 1275, the Statue of Westminster, 3 Ed I c 39 moved this date forward to the coronation of Richard I in 1189.
  • These dates were not changed again until the 1540 Act of Limitation, which prescribed 60, 50, and 30 year limitation periods for land-related writs of right, writs of morts d’ancestor, and claims based on possession of the claimaint, respectively.
In R v Oxfordshire County Council, it further notes that ‘as time went on, proof of lawful origin … became for practical purposes impossible … the evidence was not available …’ to assess claims of novel disseisin.  Judges apparently instructed juries that ‘if there was evidence of enjoyment for the period of living memory, they could assume that the right had existed since 1189’.  As time wore on, it clearly became impossible to prove.
Finally, the Statute of Limitations Act 1623 fixed a 20 year period for ‘writs of formedom’ (UK Law Commission report).
However, these changes still proved difficult in practice and often relied on ‘legal fictions of presumed grants’ (R v Oxfordshire) effectively based on ‘time immemorial’ (that is, since 1189).
Until the passage of the Act in 1623, no limitation periods existed for other, non land-related claims. (UK Law Commission report) The new Act included limitation periods for non-land-related claims as follows:
  • Two years: Actions for slander
  • Four years: Actions of trespass to the person, assault, menace, battery, wounding and imprisonment
  • Six years: Actions on the case (other than slander); actions for account, other than such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants; actions of trespass, detinue, action sur trover, and replevin for taking away of goods or cattle; actions of debt grounded upon any lending or contract without speciality; and actions of debt for arrears of rent; actions of trespass to land.
The 1623 Act also provided for an extension of time where the plaintiff was under the age of 21, a married woman (‘feme covert’), mentally disabled (‘non compos mentis’), imprisoned, or ‘beyond the seas’.
The UK Law Commission states, on page 5 that ‘we have been unable to trace any information on the reason why the six year period was thought appropriate’.  They add that ‘No limitation period applied to contracts under seal (that is, specialties), actions of account between merchants, their servants or factors, actions brought for debt under a special statute, or actions brought on a record’.
Limitation periods for land related actions were reviewed by the Real Property Commissioners in 1829.  The Commissioners recommended the retention of the 20 year period, implemented in the Real Property Limitation Act 1833 and the Prescription Act 1832.  The Commissioners also found that no limitation periods applied in some cases, including where seisin did not need to be alleged. And, there were no statute of limitations applied to actions by the Church. The 20 year period was then reduced to 12 years by the Real Property Limitation Act 1874. (UK Law Commission report)
Limitation periods were further reviewed in 1936 and recommendations made.  These included:
  • That a single limitation period of six years should apply to actions in simple contract, and actions in tort.
  • A new limitation period of 12 years (down from 20) was created for actions on a specialty.

According to the UK Law Commission report, the six year period ‘which at present applies to the majority of such actions … is familiar to the general public’.

References:
  • ‘The Shetars Effect on English Law – A Law of the Jews becomes the Law of the Land’ by Judith Shapiro in The Georgetown Law Journal Vol 71, pages 1179 – 1200
  • ‘The Origin and Early History of the Writs of Entry’, Joseph Biancalana.  Law and History Review.  Vol 25, No. 3, Fall 2007.
  • ‘Final Report on Limitation  and Notice of Actions’, Western Australian Law Reform Commission,  1997.
  • ‘Ownership and Possession in the Early Common Law’, by Joshua C. Tate, Southern Methodist University (SMU) – Dedman School of Law, American Journal of Legal History, Vol. 48, pp. 280-313, 2006 SMU Dedman School of Law Legal Studies Research Paper No. 5
  • http://www.1911encyclopedia.org/Possession_(Law)
  • UK Law Commission, ‘Why does the Present Law need Reform?’, April 2009
  • Blackstone’s Commentaries on the Laws of England (1765-1769) http://avalon.law.yale.edu/subject_menus/blackstone.asp
  • ‘A Man and His Money’, Harvey Reeves Calkins , 1915.
  • ‘A treatise on the law of actions relating to real property’, Henry Roscoe, 1825