The Affirmative Defense Of Laches

The pronunciation is the same, but it’s laches, not latches.

You’d be forgiven for confusing them for other reasons too.

As an affirmative defense, laches argues that the window on filing the claim is latched closed because the claimant waited too long to file it.

Had the claim been filed earlier, perhaps witnesses would have been available, or their memories fresher. Maybe some other evidence could be found to rebut the claim.

As a consequence of the delay, the defendant no longer has a fair chance to fight it.

Remember, an affirmative defense is one in which, even if everything the plaintiff says is true, there should still be no relief.

But because it’s an affirmative defense, the burden of proof falls on the defendant.

The elements that must be proven on an affirmative defense of laches include:

• knowledge of the claim;
• unreasonable delay in filing the claim; and
• prejudice to the defendant caused by the delay.

As an example, Texas governor and 2012 presidential candidate Rick Perry was excluded from the Virginia primary ballot because he had not collected enough signatures by the December 2011 deadline.

One week after being notified that he would not be on the ballot, Perry sued the state in federal court, claiming its certification rules were unconstitutional and demanding that his name be placed on the ballot.

But Perry’s campaign had known about the rules for several months and waited until after the certification deadline to file a complaint. The Virginia primary would be thrown into chaos by Perry’s late challenge to the state’s certification rules. The district court rejected his claim on the basis of laches.

Laches is an equitable defense. That means in most jurisdictions, it only applies to equitable claims like injunctions, foreclosures, breach of contract and so on.

Although some courts combine equity with damage claims, the doctrine of laches is usually not available as a defense to a strict claim for damages.

Laches is not to be confused with a statute of limitations defense. The statute of limitations sets a specific  period of time in which a claim must be filed. It is an actual statute created by legislation.

In contrast, the doctrine of laches does not provide a specific time period for a claim to be filed. And it is understood and followed as part of the common law, not by statute.

Have you used laches as an affirmative defense? Share in the comments below.