Limitation (Topic 6)

Question 1

Define ‘Limitation’

Answer 1

Period of time for the claimant to act, after that period has ended the claim would be time barred

Question 2

In the context of limitation what is a cause of action

Answer 2

The essential ingredients of the claim

Ie in negligence = duty/breach/causation

Question 3

Define Accrual

Answer 3

When all of the ingredients for the cause of action exist, then the cause of action has accrued

• Limitation clock starts ticking

Question 4

In the context of limitation when is a claim brought?

What is the effect of proceedings being ‘brought’?

Answer 4

When the claim form is left with the the court

Even if the court does not issue the claim on the same day, it is still brought

Limitation clock will be stopped when the proceedings are ‘broguht’

Question 5

What is latent damage?

Answer 5

Damage that is hidden, unknown until later

Question 6

What happens upon the expirary of limitation?

Answer 6

No longer be possible to bring a claim because it is too late, date of expirary is the last day upon which it is possible to bring a claim

Question 7

When can a limitation period be diapplied?

Answer 7

Only in PI Claims

If the limitation period has expired, possible under s.33 Limitation Act for the court to rule that the limitation period does not apply

So PI claim can still be brought

Question 8

What is the limitation period in a contract or tort claims (excluding negligence)?

Answer 8

=

6 YEARS from the data that the cause of action accrued

Question 9

What is the limitation period in negligence cases?

Answer 9

6 YEARS from date that the cause of action was accrued
Or
3 YEARS from having knowledge (laten damage provision)

Question 10

What is the limitation period in PI cases?

Answer 10

3 YEARS from the date that the cause of action accrued

Or 3 YEARS DATE of KNOWLEDGE if later

Question 11

Contract/General Tort Claim
Cause of action accrues on the 13th January 2020

1. When does you start counting the limitation period?
2. When is the last day of the limitation period?
3. When will the limitation period expire?

Answer 11

1. 14th January 2020 (Start date)
2. 13th January 2026 (Date of action accrued + 6 years)
3. 14th January 2026 (Expiry)

Question 12

PI Claim
Cause of action accrues on the 13th January 2020

1. When does you start counting the limitation period?
2. When is the last day of the limitation period?
3. When will the limitation period expire?

Answer 12

1. 14th January 2020 (Start date)
2. 13th January 2023 (Date of action accrued + 3 years)
3. 14th January 2023 (Expiry)

Question 13

When the claimant is a child, when does the limitation period start to run?

When is the last day to bring a claim, if it is a PI claim?

Answer 13

Start running on the child’s 18th birthday

18th birthday = trigger date

21st birthday = last date upon which the claim can be brought

Question 14

What happens if the limitation period expires on a date when the court is closed?

Answer 14

Claimant will have until close of business on the next working day to bring their claim

Question 15

Can a claim brought in contract only benefit from the latent damage period?

Answer 15

No, only applies to claims brought in negligence. So a contract claim will always expire six years from the date the cause of action accrued.

Question 16

When will limitation expire if a co-current claim is brought in negligence and under a contract?

Answer 16

Limitation for the contractual part of the claim will expire 6 years from the date the cause of action accrued

But limitation period for negligence aspect of the claim will not expire until after 3 years from the date of the starting period.

Question 17

Can a claimant still bring a claim if the action is ‘time barred’?

Answer 17

Yes can still bring a claim, it is for the defendant to raise the limitation defence if he so wishes

Question 18

Section 11 and 12 LA make reference to ‘date of knowledge’, how is this defined?

Answer 18

Defined in s.14

Date on which C first had knowledge of:
That injury was significant; &
that injury was attributable to the alleged negligence; and
The identity of the D.

C must have all three to have knowledge

Question 19

How can ‘knowledge’ be satisfied?

Answer 19

Can be what the C actually knew himself or constructive knowledge, based on what C might reasonably be expected to have known from the facts ascertainable by himself or by an expert
(Will not be fixed with knowledge if the expert got it wrong)

Question 20

What does s.33 LA allow the courts to do?

What types of claim does this apply to?

What will the court have regard to?

What factors can be considered within the last part of this?

Answer 20

Allows the courts to exercise their discretion and disappointment the limitation period

ONLY in respect of PI or death claims

Court will have regard to the degree to which C would be prejudiced and the degree to which the D would be prejudiced but disallowing the limitation period AND all of the circumstances

All of the circumstances =
Delay and reason for it 
Value of evidence remaining 
Conduct of parties 
Any disability C suffered
Promptness of the C 
Steps C has taken to obtain advice (medical/legal)

Question 21

What claims can be made upon a C’s death? Under what Act?

Answer 21

1934 Act = Claim for injury and loss before death, can survive the C’s death

1976 Act = Fixed amount for the death itself and claim for dependency

Question 22

What limitation period is application for claims under the 1934 act?

What limitation period is application for claims under the 1976 act?

Answer 22

1934 = S.11 applies = 3 years from date of death or from date of the personal representative’s knowledge

1976 = S.12 applies = 3 years from date of death or from date of knowledge of the person for whose benefit the claim is brought

Question 23

When a possible C dies before they file their claim, what is the first consideration?

What are the possible consequences of this?

Answer 23

1st consideration = had their limitation period expired BEFORE their death?

Expired BEFORE death = Would then need to apply under s.33 to disapply the limitation period of the possible original claim before 1934/76 act claims made

NOT expired before death = Clock runs as set out in s.11 and 12 LA (dependant on act claim made under)

Question 24

When does s.35 of the LA apply?

Answer 24

Applies to situations which arise when proceedings have already been started but it is now necessary to start a new claim within proceedings or to add a new party BUT limitation has EXPIRED since issue of the claim form

Question 25

When a new claim made (under s.35) when will that claim be deemed to have been commenced? What is a ‘new claim’ under s.35?

Answer 25

New claim will be deemed to have been commence on the same date as the original claim New claim = addition/substitution of a new cause of action or addition/substitution of a new party

Question 26

When can a ‘new claim’ under s.35 be made?

Answer 26

ONLY IF: For new cause of action = only if, it is based on the same or substantially the same facts New party = only if, it is NECESSARY for the determination of the origin claim

Question 27

When will the addition or substitution of a new claim be deemed NECESSARY?

Answer 27

Only if New party is substituted for a party whose name was entered in mistake OR Original claim cannot be maintained without the new party being added OR Original party has died or been declared bankrupt (as added by CPR 19.5)

Question 28

What types of mistakes are allowed?

Answer 28

Mistake as to name but knew the identity of who C wanted to sue = ALLOWED (I.e description clear even if name is wrong) Mistakes as to the identity of the D = NOT ALLOWED

Question 29

When should you use 17.4? | When should you use 19.5? And what?

Answer 29

17. 4 = If just misspelling/correcting a name | 19. 5 = If wrong name but right identity, need to also apply the Sardinia Sulcis case

Question 30

What is the test in Sardinia Sulcis?

Answer 30

Is it possible to identify the intended D “by reference to a description more to less specific to the particular case”? If it is, it is a mistake of the type covered by 19.5

Question 31

In Negligence claimed where the facts relevant to the cause of action are not known at the date of accrual, what is the limitation period?

Answer 31

6 years from the date of accrual or 3 years form the stating date 14A LA

Question 32

How is the starting date in 14A defined?

Answer 32

Earliest date C had the knowledge required to bring an action and the right to bring such an action

Question 33

How is knowledge in the context of s.14A defined? How are these defined? What does knowledge also include?

Answer 33

Knowledge = of material facts and other related facts Material facts = facts about the damage that would lead a reasonable person to consider it sufficient serious to start proceedings Other facts = That the damage was attributable to the negligence and the identity of the D Also includes .... Knowledge that C might have reasonably been expected to acquire via ascertainable information to him or by an expert

Question 34

What is the overriding time limit? When does this not apply?

Answer 34

15 years from the date of negligence to which the damage is alleged to be attributable Does not apply in cases of fraud/concealment/mistake under s.32

Question 35

What is a contribution? What is the limitation period for seeking a contribution? What 2 situations need to be distinguished in relation to contribution claims? Why?

Answer 35

Contribution = Right of D to recover from 3rd person all or part of the amount which D is liable to pay 2 years from the date the right to recover a contribution accrued 1. Where there has been a judgment against the D 2. Where D has settled (no judgment) Why = Meaning of ‘accrual’ is different

Question 36

When does the right to a contribution accrue where there has been a judgment made against the D? When does the right to a contribution accrue where there has been a settlement?

Answer 36

Judgment, accrual = The date the court decided on the amount of damages D has to pay Settlement, accrual = Earliest date which the amount to be paid was agreed upon

Question 37

What is the definition of disability under the LA? What is the limitation period if at the time of accrual the C was under a disability?

Answer 37

Disability = A child or lacking capacity to conduct proceedings Action made be brought up to 6 years from the date when the C ceased being under the disability, or 3 years in PI claims

Question 38

When can the action be brought in the following circumstances? When accrual took place, when ... .... C was a child .... C was lacking capacity .... C lost capacity after the cause of action accrued? .... C was a child or lacked capacity in a contribution claim

Answer 38

Child = 6 years from 18th birthday, 3 years from 18th if PI claim Lacking capacity = 6 years from ceasing being under disability, 3 years if PI claim Capacity lost post accrual = s.28 does not apply Contribution claims = 2 years from date they ceased being under disability hearing