Chapter 11

Question 1

What’s a limitation period?

Answer 1

A fixed period of time during which formal civil proceedings must be started

Question 2

The limitation periods under the civil law of England and Wales are fixed by what Act?

Answer 2

Limitation Act 1980

Question 3

What does the limitation period vary depending on?

Answer 3

Type of civil claim involved

Question 4

What is the reason for limitation periods?

Answer 4

It’s public policy

Question 5

What can happen to claims by statute if a certain period of time elapses?

Answer 5

They become time barred

Question 6

Why’s limitation periods important?

Answer 6

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

Question 7

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

Answer 7

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

Question 8

What is the exception for the limitation period in a personal injury claim which involves a child?

Answer 8

The limitation period doesn’t start to run until the child reaches the age of 18 and will run until their 21st birthday

Question 9

What type of person may be given longer to bring their claim forward?

Answer 9

A personal with mentally disability

Question 10

With regards to the statutory limitation period, what may the court decide to do?

Answer 10

They may decide to override the period if they feel that there are exceptional reasons for the delay

Question 11

When will the limitation period actually start to run and what does this therefore mean?

Answer 11

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

Question 12

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?

Answer 12

The date of knowledge

Question 13

The limitation act 1980 only applies to what type of claims?

Answer 13

Civil claims

Question 14

What is the limitation period for criminal acts?

Answer 14

There’s no statutory limits on the prosecution of crimes in the UK except for summary offences (offences tried in the Magistrates courts)

Question 15

For criminal acts which are summary offences, what’s the limitation periods under the 1980 Act?

Answer 15

6 months

Question 16

Who does the onus on proof rest on?

Answer 16

Insured

Question 17

What does it mean when the “onus of proof” is on the insured?

Answer 17

Means that it’s the responsibility of the insured to prove that they have a valid claim

Question 18

What are the two things that the insured has to follow in order to prove that their claims valid “onus of proof”

Answer 18

• That an insured peril arose

- The amount of the loss

Question 19

If the insurer decides to decline a claim, who does the onus of proof rest with and what do they have to do?

Answer 19

Insurer and they have to prove that the exclusion exists

Question 20

What are the 8 responsibilities that the insurer has when it comes to the onus of proof?

Answer 20

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

Question 21

What does it mean when a claim is valid however, only partially met?

Answer 21

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)

Question 22

What policy terms may mean that a claim will be partially met?

Answer 22

• The sum insured (property insurance)
• Limit of liability (liability insurance)
• Average clauses
• Excesses

Question 23

What is an ex gratia payment?

Answer 23

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

Question 24

Can you claim subrogation for a ex gratia payment?

Answer 24

No- these rights can only be followed from an indemnity payment

Question 25

The duties of the insurer can be divided into what 2 categories?

Answer 25

Implied duties

Expressed duties

Question 26

What is the difference between implied and expressed duties?

Answer 26

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

Question 27

If an implied duty is breached, what will happen?

Answer 27

The claim will be invalid

Question 28

What are 4 examples of implied duties?

Answer 28

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