Limitation (Topic 6) Flashcards
Define ‘Limitation’
Period of time for the claimant to act, after that period has ended the claim would be time barred
In the context of limitation what is a cause of action
The essential ingredients of the claim
Ie in negligence = duty/breach/causation
Define Accrual
When all of the ingredients for the cause of action exist, then the cause of action has accrued
- Limitation clock starts ticking
In the context of limitation when is a claim brought?
What is the effect of proceedings being ‘brought’?
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’
What is latent damage?
Damage that is hidden, unknown until later
What happens upon the expirary of limitation?
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
When can a limitation period be diapplied?
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
What is the limitation period in a contract or tort claims (excluding negligence)?
=
6 YEARS from the data that the cause of action accrued
What is the limitation period in negligence cases?
6 YEARS from date that the cause of action was accrued
Or
3 YEARS from having knowledge (laten damage provision)
What is the limitation period in PI cases?
3 YEARS from the date that the cause of action accrued
Or 3 YEARS DATE of KNOWLEDGE if later
Contract/General Tort Claim
Cause of action accrues on the 13th January 2020
- When does you start counting the limitation period?
- When is the last day of the limitation period?
- When will the limitation period expire?
- 14th January 2020 (Start date)
- 13th January 2026 (Date of action accrued + 6 years)
- 14th January 2026 (Expiry)
PI Claim
Cause of action accrues on the 13th January 2020
- When does you start counting the limitation period?
- When is the last day of the limitation period?
- When will the limitation period expire?
- 14th January 2020 (Start date)
- 13th January 2023 (Date of action accrued + 3 years)
- 14th January 2023 (Expiry)
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?
Start running on the child’s 18th birthday
18th birthday = trigger date
21st birthday = last date upon which the claim can be brought
What happens if the limitation period expires on a date when the court is closed?
Claimant will have until close of business on the next working day to bring their claim
Can a claim brought in contract only benefit from the latent damage period?
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.
When will limitation expire if a co-current claim is brought in negligence and under a contract?
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.
Can a claimant still bring a claim if the action is ‘time barred’?
Yes can still bring a claim, it is for the defendant to raise the limitation defence if he so wishes
Section 11 and 12 LA make reference to ‘date of knowledge’, how is this defined?
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
How can ‘knowledge’ be satisfied?
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)
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?
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)
What claims can be made upon a C’s death? Under what Act?
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
What limitation period is application for claims under the 1934 act?
What limitation period is application for claims under the 1976 act?
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
When a possible C dies before they file their claim, what is the first consideration?
What are the possible consequences of this?
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)
When does s.35 of the LA apply?
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
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?
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
When can a ‘new claim’ under s.35 be made?
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
When will the addition or substitution of a new claim be deemed NECESSARY?
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)
What types of mistakes are allowed?
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
When should you use 17.4?
When should you use 19.5? And what?
- 4 = If just misspelling/correcting a name
19. 5 = If wrong name but right identity, need to also apply the Sardinia Sulcis case
What is the test in Sardinia Sulcis?
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
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?
6 years from the date of accrual or
3 years form the stating date
14A LA
How is the starting date in 14A defined?
Earliest date C had the knowledge required to bring an action and the right to bring such an action
How is knowledge in the context of s.14A defined?
How are these defined?
What does knowledge also include?
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
What is the overriding time limit?
When does this not apply?
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
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?
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
- Where there has been a judgment against the D
- Where D has settled (no judgment)
Why = Meaning of ‘accrual’ is different
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?
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
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?
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
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
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
