Chapter 11 Flashcards
What’s a limitation period?
A fixed period of time during which formal civil proceedings must be started
The limitation periods under the civil law of England and Wales are fixed by what Act?
Limitation Act 1980
What does the limitation period vary depending on?
Type of civil claim involved
What is the reason for limitation periods?
It’s public policy
What can happen to claims by statute if a certain period of time elapses?
They become time barred
Why’s limitation periods important?
Because after time memory’s fade, documentary evidence may be lost and evidence can be weakened making it difficult/impossible to properly adjudicate a case
For each type of claim, what’s the limitation period under the 1980 Act?
- Contract
- Awards in arbitration
- Debt
- Personal injury
- Fatal injury/illness
- Negligence
- Recovery of land
- Breach of trust
- Tort
- Defamation/malicious falsehood
Contract- 6 years Awards in arbitration- 6 years Debt- 6 years Personal injury- 3 years Fatal injury/illness- 3 years Negligence- 6 years Recovery of land- 12 years Breach of trust- 6 years Tort- 6 years Defamation/malicious falsehood- 1 year
What is the exception for the limitation period in a personal injury claim which involves a child?
The limitation period doesn’t start to run until the child reaches the age of 18 and will run until their 21st birthday
What type of person may be given longer to bring their claim forward?
A personal with mentally disability
With regards to the statutory limitation period, what may the court decide to do?
They may decide to override the period if they feel that there are exceptional reasons for the delay
When will the limitation period actually start to run and what does this therefore mean?
At the time the cause of action actually arises/from the earliest time that legal proceedings can first be bought. This therefore means that every fact which is required to commence an action must be in existence before the limitation period can start to run
With the limitation periods under the 1980 Act, the claim must be commenced in the courts within X amount of years from the date of the event or within X amount of time from what date?
The date of knowledge
The limitation act 1980 only applies to what type of claims?
Civil claims
What is the limitation period for criminal acts?
There’s no statutory limits on the prosecution of crimes in the UK except for summary offences (offences tried in the Magistrates courts)
For criminal acts which are summary offences, what’s the limitation periods under the 1980 Act?
6 months
Who does the onus on proof rest on?
Insured
What does it mean when the “onus of proof” is on the insured?
Means that it’s the responsibility of the insured to prove that they have a valid claim
What are the two things that the insured has to follow in order to prove that their claims valid “onus of proof”
- That an insured peril arose
- The amount of the loss
If the insurer decides to decline a claim, who does the onus of proof rest with and what do they have to do?
Insurer and they have to prove that the exclusion exists
What are the 8 responsibilities that the insurer has when it comes to the onus of proof?
1- The cover was in force at the time of the loss (or when the claim was made under certain policies)
2- The insured is that named in the policy or a person entitled to indemnity
3- The peril (or event) is covered by the policy
4- The insured has taken reasonable steps to minimise the loss
5- All conditions and warranties have been complied with
6- The duty of fair presentation has not been breached
7- No exceptions are appropriate
8- The value of the loss is reasonable
What does it mean when a claim is valid however, only partially met?
An insurer may provide less than full indemnity either as a result of the insureds choice (as in the case of a first loss policy) because of an imposed policy term (such as compulsory excess) or due to poor insurance arrangements (under insurance)
What policy terms may mean that a claim will be partially met?
- The sum insured (property insurance)
- Limit of liability (liability insurance)
- Average clauses
- Excesses
What is an ex gratia payment?
It’s where the insurer decides to pay a claim out of favour, meaning that there’s no strict liability for the claim to be paid however, the insurer still wishes to do so
Can you claim subrogation for a ex gratia payment?
No- these rights can only be followed from an indemnity payment
The duties of the insurer can be divided into what 2 categories?
Implied duties
Expressed duties
What is the difference between implied and expressed duties?
Implied- is imposed by common law whether they’re written into the policy or not (so these are standard expectations)
Expressed- these are written into the contract usually under the claims conditions section of the policy
If an implied duty is breached, what will happen?
The claim will be invalid
What are 4 examples of implied duties?
1- should act as though uninsured, and take all reasonable steps to minimise the loss
2- may also be required to advise the appropriate authorities in the event of loss or damage eg advising fire services in the event of a fire
3- must take all steps to prevent a loss from spreading
4- must not hinder the insurer in the claims investigation process
