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