Pre-action consideration and conduct Flashcards
What is the consequence if proceedings are not commenced within the relevant limitation period?
C barred from recovering damages and D has a full defence
What is the general rule on the limitation period for actions in tort and contract? What is the cause of action for both?
Limitation period expires 6 years after the date on which the cause of action accrued
- Contract = date of breach
- Tort = date of actionable damage
For negligence claims, where facts relevant to cause of action are not known at date of accrual, what is the limitation period extended to?
NB DO NOT APPLY TO PI CLAIMS
e.g. a house is constructed negligently such that, from the outset, parts of the foundations are subject to rot in a way that starts immediately, but which the claimant might not be aware of (because the foundations are hidden) until **10 years later. **
The cause of action accrues at the time the house is built because the rot (the damage) starts immediately - applying the ‘usual’ 6 year rule, limitation would expire before the claimant is even aware of a problem - would be an unfair result
The later of:
- 6 years from when cause of action accrued; or
- 3 years from when he had the requisite knowledge and right to bring a claim
What does ‘date of knowledge’ entail in a negligence case? Must it have been knowledge of claim in negligence?
- Date of knowledge = knowing material facts about the damage in respect of which damages are claimed (e.g. foundations in a house are damaged) / when they might reasonably have been exepcted to acquire facts from expert
- Knowledge of claim irrelevant
What long-stop limitation is the limitation period for negligence claims limited to?
15 years from the date of the latest negligent act/omission which caused all or part of the damage
What is meant by a person being ‘under a disability’ and how does this change the limitation period?
- Under a disability = minor/lacks mental capacity to conduct court proceedings
- If C is under a disability at the time that cause of action accrued, the limitation period starts to run from when disability ends
When disability ends, how long is the limitation period for contribution claims, personal injury/fatal accident claims, and other cases?
- Contribution claims = 2 years
- Personal injury/fatal accident = 3 years
- Most other cases = 6 years
What is the rule re limitation where a claim is either based on fraud, any fact relevant to the cause of action has been deliberately concealed by the D, or the action is for relief from consequences of a mistake?
Limitation does not start to run until C discovered fraud, concealement or mistake (or with reasonable diligence have discovered it)
Where a party makes a claim for PI, when must they bring the claim?
Within 3 years of the latest of the date when:
- Cause of action accrued or
- Date of knowledge of the person injured
NB these can be the same day
Who is able to make a claim under the Fatal Accidents Act when the deceased’s death was caused by another person’s negligence?
In certain circumstances
Dependents…
- Spouse/former spouse/cohabitee living in same household immediately before date of death for at least 2 years
- Parent or other ascendant of deceased or person treated as such
- Child or other descendent of deceased or treated as such
- Issue, brother, sister, uncle or aunt
What are the time limits for a Fatal Accidents Act claim?
Claim cannot be brought after 3 years from the later of the date of death or the date of knowledge by dependent
- i.e. claim cannot be brought if person injured (employee) could no longer bring a claim (see PI rules)
What does the ‘date of knowledge’ mean knowing?
I.e. what must you know for it to be the date of knowledge
Knowing…
- Injury was significant (for FAA: injury = fatal injury to deceased); and
- Injury was attributable (at least in part) to alleged wrongdoing; and
- Identity of D; and
- If it is alleged that the wrongdoing was by someone other than the defendant, the identity of that person and the additional facts supporting bringing the claim against the defendant
Must all be present!
- On 1 January 2015, the pedestrian was hit by a delivery van. He was knocked unconscious, but when he regained consciousness, he had a mark on his head where it hit the ground, but no serious injuries.
- In March 2018, he began to suffer from frequent debilitating headaches (he realised the injury was significant). He went to a doctor, and by April 2018, medical professionals confirmed that the headaches were attributable to the head injury he suffered when hit by the van (he therefore realised that the injury was attributable to the alleged wrongdoing).
- Using the registration number, which he kept a record of, on 1 June 2018 he identified the driver of the vehicle. He wrote to the driver, and on 1 July 2018, the driver identified that he was making the delivery as part of his job as an employee of Books Birmingham Limited.
Assuming the pedestrian intends to bring proceedings against Books Birmingham, then the defendant and the facts supporting bringing the claim against the defendant (rather than the driver) were identified on 1 July 2018.
- Applying the personal injury rules (s 11), the limitation date within 3 years of the later of the date when the causation accrued (1 January 2015) and the date of knowledge (1 July 2018). So the claim must be brought within 3 years of 1 July 2018 – by 1 July 2021 at the latest.
Another example:
On 1 March 2020, Kelly is injured when a motorist collides with her car. She is immediately aware of her injuries. She exchanges personal details with the motorist that caused the accident. On 1 April 2020, a solicitor advises her that she may have a claim in negligence against the motorist.
When will limitation expire? 1 March 2023
- The claim must be brought within 3 years of the latest of when the cause of action accrued, or the date of knowledge. In this case, those 2 dates are the same – the date of knowledge was the same as the accrual of the cause of action – 1 March 2020. It is not necessary for Kelly to know that she has a claim in negligence in order for her to have the requisite knowledge, so the advice from the solicitor is not relevant.
For a dependent under the Fatal Accidents Act, will knowledge of the facts or knowledge of the potential negligence claim permit the limitation period to start running?
Knowledge of facts
Does knowledge in ‘date of knowledge’ include only observable facts (ascertainable to C)?
No - also includes knowledge the C might reasonably have been expected to acquire from an expert
When can court extend time re personal injury/FAA claims, what must be balanced, and what will the court look at?
- Can extend time if it would be equitable
- Balance prejudice to C caused by limitation period with any prejudice to D which allowing claim would cause
- Will look at conduct of parties, reason for delay, effect of late claim on evidence
