The Limitation Act 1980 contains the rules regarding when a Claimant must issue legal proceedings in a Court to avoid the Defendant defending the claim on the basis that the Claimant is out of time. This is known as the ‘limitation period’.

Pursuing a successful personal injury claim can be timely. It is therefore vitally important to seek advice as soon as practically possible to ensure your legal representative can collate all of the evidence and prepare a good claim before the Court.

Why is limitation important to consider

If the limitation period has expired, the Defendant has a complete defence to the claim. It is therefore important for a Claimant to know where they stand before issuing proceedings when limitation is disputed. If the Claimant loses the limitation argument, the Court may order them to pay the Defendants legal costs (as well as any costs they have incurred of their own) and the claim will automatically end.

For most personal injury and negligence claims a claim must be brought to a Court within 3 years of injury.

Date of knowledge

The limitation period can in certain circumstances be based on date of knowledge. This usually occurs more often in cases of clinical negligence. In such instances, the limitation period does not begin on the day on which the cause of action accrues but on the date the Claimant discovers, or ought to have discovered, the damage.

When the date of knowledge is later than the date of injury, the limitation date will be three years from the date of knowledge. However, the Claimant will need to prove that the date of knowledge was later than the date of injury.

Exceptions to the limitation rule

Minors

A Claimant who is under the age of 18 can make a claim to the Court by way of litigation friend. Limitation does not run against a person under the age of 18. Therefore, the limitation will run 3 years from the Claimants 18 birthday.

Mental Capacity

The usual rules on limitation do not apply upon adults that are considered to lack mental capacity under the Mental Capacity Act 2005. The Act states that a person is assumed to have capacity unless otherwise established. The limitation period will not commence if the Claimant has become mentally disabled as a result of injury. However, the limitation period will commence once recovery can be proven.

Extension of limitation

The Court has the discretion to override the general three years limitation period, if it is considered to be fair on both parties.

The Court will take into account the following factors when deciding upon a request for extending the limitation date:

• The length of the extension and the reasons for delay.
• Whether the evidence is unlikely to be as persuasive as it could have been if the Claimant had more time.
• The way in which the Defendant responded to any reasonable request from the Claimant for information that may help in establishing a cause of action.
• The duration of any disability suffered by the Claimant after the date of accrual.
• The conduct of the Claimant and whether they acted promptly and reasonably once they knew that the act or omission of the Defendant might result in damages.
• The steps taken by the Claimant to obtain medical, legal and other expert advice and the nature of the advice received.

Limitation is paramount when considering potential court action.  If limitation is close to expiring, it may be possible to agree with the Defendant that a moratorium to the limitation period be considered (also known as a standstill agreement) or to otherwise issue protective proceedings to allow a 4 month period to collate the evidence before serving the Court papers upon the Defendants.

If you require any assistance or legal advice with regards to a personal injury or clinical negligence claim, please contact Zoey Smith on 01492 876354 or zoey.smith@boneandpayne.co.uk