Limitation periods in a personal injury or clinical negligence claim

/Limitation periods in a personal injury or clinical negligence claim
Limitation periods in a personal injury or clinical negligence claim 2017-08-21T15:45:05+01:00

All types of claims have a limitation period. By this, a limitation period means that there is a set period of time by which a Claimant should have “brought” their claim to a court. “Brought” is different from “issued” as it means that a Claimant must have taken their court proceedings (often just a Claim Form) to the court.

As courts are working to a significant backlog, there is often a significant delay between a claim being “brought” and the claim being “issued”. Both dates are crucial and are rarely the same day. If a limitation period is about to expire then a Claimant solicitor usually has to keep evidence as to the date that the proceedings were sent to the court. Usually a Claimant solicitor would get a copy of their letter to the court stamped by the court.

Limitation law is very complicated. Most of the various limitations are contained in the Limitation Act 1980. Claims in contract usually have to be brought within 6 years and claims in tort (the law relating to personal injury and medical negligence) usually have to brought within 3 years. Some contracts try to reduce the length of time before limitation expires.

Complexity in calculating the correct limitation for a claim arises in the following non-exhaustive scenarios:

  1. Child claimants (children under the age of 18).
  2. Claimants who are or have been under a disability as defined by the Mental Capacity Act 2005 i.e. If a Claimant was incapable of bringing a claim, then they shouldn’t be penalised for this.
  3. When the precise date of the injury is hard to determine because there is a difference between when an injury occurred and the date that the Claimant realised that they had suffered an injury. This is quite common in disease claims such as Noise-Induced Hearing Loss claims.
  4. Specific scenarios such as an accidents on a boat, accidents on a package holiday or accidents on a plane.

If a Defendant takes the position that a Claim may have been brought out of time and that they want to try to get rid of the Claim early on, because of the Claimant’s alleged failure to bring the claim before the expiry of limitation, then they may ask a court to make a finding on this point at the outset of the claim.

In some claims a Claimant who has potentially not brought their claim during the appropriate limitation period may ask for leniency from the court under section 33 of the Limitation Act 1908. This is known as seeking discretion. Some limitation periods do not allow a Claimant any discretion. It is best practice to avoid seeking discretion from the court and to therefore issue the claim in good time.

Failing to issue court proceedings within the correct limitation period can often lead to a professional negligence claim against a Claimant solicitor. A Claimant solicitor should therefore run a meticulous diary system so that limitation is not missed.