2. Pre-Action Considerations: Limitation

Question 1

What are the two pre-action considerations must a solicitor consider before starting a claim for a client?

Answer 1

Whether the claim is statute barred or time barred

Question 2

What is the limitation period for bringing a claim?

Answer 2

Maximum time after an event which legal proceedings can be brought

Question 3

What is the outcome where a solicitor incurs costs advancing a claim which is statute-barred?

Answer 3

They will be deemed negligent and not acting in client’s best interests

They will also be unable to recover costs from their client for wasted expenditure

Question 4

What is the limitation period for breach of contract and most claims in tort?

Answer 4

Six years

Question 5

What is the limitation period for personal injury and fatal accident claims?

Answer 5

Three years

Question 6

What is the limitation period for defamation claims?

Answer 6

One year

Question 7

What is the limitation period for unfair dismissal claims?

Answer 7

Three months

Question 8

What is the long stop limitation for latent defects?

Answer 8

Fifteen years (from date of original breach)

Question 9

In a tort action, when does the limitation period begin running?

Answer 9

Generally, from the day the cause of action accrues, i.e. when the tort occurs. However procedurally, this is measured from the day after the breach occurs

Question 10

In a tort action for clinical negligence, when does the limitation period begin running?

Answer 10

Date after the claimant first gains knowledge that they have a claim e.g. by going to a doctor who informs them that their doctor was clinically negligent

Question 11

In a tort action, does the claimant need to know the precise details in order for the date of knowledge to start the timer?

Answer 11

No, sufficient information is enough

Question 12

In a tort action, in addition to knowing they have an injury, what must a claimant know?

Answer 12

Causation, i.e. that the injury arose from a negligent act or omission of an identified defendant

Question 13

In a tort action, what are the two options for the limitation period if the injured party dies within three years of the accrual date?

Answer 13

Must bring a claim within three years from:

1. Date of death, or
2. Date of knowledge of the deceased’s personal representative

Question 14

What is the effect of the injured party dying during the limitation period in tort?

Answer 14

Where a limitation is six years, it reduces it from six years from the date of accrual to three years from the date of death

Question 15

In a contract action, when does the limitation period begin running?

Answer 15

Begins running from date of breach- measured procedurally to begin the day after the date of breach

Question 16

What is a make good clause in a contract and can they be used to override statutory limitation periods?

Answer 16

They are clauses, typically in construction contracts, that the construction company will make good on any defects for a period, usually 1-2 years, after construction.

They cannot be used to override statutory limitation periods, unless they expressly limit the period and are reasonable per Unfair Contract Terms Act 1977.

Question 17

What is a latent defect?

Answer 17

A defect in property caused by fault that existed at the time construction was completed but was not apparent at that time

Question 18

Where there is a latent defect, what limitation period is available in addition to the general rule of six years from the date of accrual?

Answer 18

Three years from the earliest date on which the claimant knew or ought reasonably to have known material facts necessary to bring an action

Question 19

What is the longstop limitation period for latent defects, after which no actions can be brought?

Answer 19

Fifteen years from accrual, which is usually completion of the project

Question 20

Is it possible to expressly shorten a limitation period in a contract?

Answer 20

Yes, but this will be subject to reasonableness requirements under the Unfair Contract Terms Act 1977 (see contract law slide deck 7: Exclusion Clauses)

Question 21

Procedurally, when does time begin to run relative to the date the cause of action accrues?

Answer 21

The day after the date of accrual

Question 22

Procedurally, when does time stop running?

Answer 22

When the claimant delivers the properly completed claim form to the court with a request to issue together with the appropriate fee. The court then ‘issues’ the claim- seals it and gives it a claim number. This is when the limitation period stops

Question 23

What occurs if the limitation period expires on a day when the court office is closed?

Answer 23

The action will still be on time as long as the documents/fee are filed on the next business day

Question 24

Is it possible to add a new party to proceedings after the limitation period has expired?

Answer 24

No, unless an application to disapply the limitation period is made to the court

Question 25

After the expiry of the limitation period, is it possible to amend the name of a mistakenly spelled/identified defendant in proceedings which were originally filed on time?

Answer 25

Yes

Question 26

When does the limitation period begin to run where a claimant is a minor?

Answer 26

On their 18th birthday

Question 27

When does the limitation period begin to run where a claimant lacks capacity at the time of accrual?

Answer 27

When they are certified as being of sound mind

Question 28

If a claimant has capacity at the time of accrual and subsequently loses capacity, is the clock paused?

Answer 28

No

Question 29

When does the limitation period begin to run in cases of (1) fraud or concealment or (2) relief from the consequences of a mistake?

Answer 29

When the claimant discovers the fraud/concealment or mistake, or could have done so with reasonable diligence