PRE-ACTION CONSIDERATIONS: LIMITATION

Question 1

3

definition of limitation

Answer 1

1. A person with a claim cannot wait too long to bring it.
2. The law provides limitation periods in which a claim must be brought, and the periods vary among the diferent types of claim.
3. If a person attempts to commence proceedings by issuing a claim form after the limitation period has passed, the defendant can raise the passage of the limitation period as a defence to try to have the claim struck out.

Question 2

Specifc Time Limits

Answer 2

1. Time limits vary for diferent types of claim, but in most situations, limitation periods are laid down by statute, many in** the Limitation Act 1980**.
2. Failure to commence a legal action within the strict time limits set out in the Act result in the claim
   being** ‘statute barred’**.

Question 3

Longstop for latent defects

Answer 3

15 years

Question 4

Claims for breach of contract

Answer 4

6 years

Question 5

Most claims in tort

Answer 5

6 years

Question 6

Claims for personal injury

Answer 6

3 years

Question 7

Fatal accident claims

Answer 7

3 years

Question 8

Claims for defamation

Answer 8

1 year

Question 9

Claims for unfair dismissal

Answer 9

3 months

Question 10

2

LIMITATION IN TORT—DATE OF ACCRUAL OR KNOWLEDGE

Answer 10

1. As set out in the preceding table, the limitation period in tort depends on the type of claim (for example, three years for personal injury and six years for most other torts).
2. But this is only a portion of the problem—you also have to decide** when to start measuring the period. In both cases, time can be measured from the accrual of the action**, which is when the relevant tortious act occurs; for example, the date an auto-mobile accident occurred or the date on which a defamatory statement was made. But that is not always fair, such as when the claimant’s injury is not readily apparent. So, in some situa-tions the limitation begins to run when the claimant first gains knowledge that they have a claim.

Question 11

Date of Knowledge

Answer 11

1. **Generally, the date of knowledge is the point at which the claimant had knowledge of all the facts **establishing all of the essential elements of the claim—in other words, knowledge of the factual essence of the act or omission that caused the loss.
2. However, it is not necessary to know the precise details of the alleged negligence .
3. If the claimant had suffcient information to commence investigations into a potential claim against the defendant, time should begin to run.

Question 12

4

Date of Knowledge in Clinical Injury Claims

Answer 12

The classic case is when, after surgery, a sponge is left in the patient’s body which is not discovered until some time later. In such a case, the date of knowledge is the date on which the claimant has knowledge of the following facts:
*That the injury was signifcant;
*That it was attributable in whole or in part to the act or omission alleged to constitute negligence, nuisance, or breach of duty;
*The identity of the defendant; and
*If it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant.

Question 13

2

Knowledge of Causation Required in tor claim

Answer 13

1. The date of knowledge relies on the claimant being aware not only that they have **suffered **a signifcant injury, but also that it has arisen from a negligent act or omission of an identifed defendant.
2. Compare this with claims in contract, which do not require causation to be established before an action can proceed. The date of accrual is the date of the breach, regardless of the loss and damage incurred.

Question 14

Claims Involving Death

Answer 14

If an injured party dies within three years of the accrual date, the limitation period will be:
*Three years from the date of death; or
*Three years from the date of knowledge of the deceased’s personal representative.

Question 15

LIMITATION IN CONTRACT—BEGINS TO RUN ON DATE OF BREACH

Answer 15

As noted earlier, a claimant has six years to commence a
claim for breach of contract. The time period begins to run on the date on which the breach occurred.

Question 16

2

Contract for Construction and Defective
Construction

Answer 16

1. Acontract may have a defects liability period applicable for a stipulated time after completion, during which period thecontractor will be responsible for any defects that arise (a so-called make good clause).
2. It is common for this period to be one or two years. However, whilst the contract determines what should happen in this situation, it does not mean that the contractor escapes liability after the one or two years (or other specifed period) has passed, as the general six-year limitation period applicable to simple contracts should still apply.

Question 17

3

LATENT DEFECTS

Answer 17

1. The Latent Damage Act 1986 introduced an** additional limitation period** for claims for which the limitation period may expire before a party is aware that a claim exists.
2. This exten-sion is available for negligence claims for latent defects—a defect in a property caused by a fault in design, materials, or workmanship that existed at the time construction was completed but that was not apparent at the time of completion. In such a case, the time limit is the later of the following:
   6 years** from the date of accrual of the cause of action; or
   **3 years from the earliest date on which the potential claimant knew, or reasonably ought to have known, material facts necessary to bring an action alleging negli-gence (the ‘starting date’).
3. There is a longstop limitation period of 15 years from the act or omission alleged to have caused the loss and damage, that is, if the latent damage becomes apparent on a date later than 15 years after the alleged negligent act (normally when the building is constructed), the claimant will be out of time**

Question 18

2

LIMITATIONS ON CONTRACTUAL LIABILITY RESTRICTIONS

Answer 18

1. Contracts will sometimes expressly state that claims cannot be brought after the expiry of the agreed limitation period.
2. Any agreed shorter limitation periods would be subject to a reasonableness test under the legal provisions preventing unfair contract terms (Unfair Contract Terms Act 1977).

Question 19

2

When Time Starts and Stops for Limitation Purposes

Answer 19

1. For the purposes of limitation, time starts to run from the day after the date that the** cause of action arose**. Time ends when the claimant delivers the properly completed claim form to the court office with a request to issue together with the correct fee.
2. If any of these are not provided, the court will not issue the claim form.

Note: If the limitation period expires on a day when the court offce is closed, the action will still be in time if all the relevant documents and fee are lodged with the court office on the
next court business day.

Question 20

2

Changes to Parties After Expiry of
Limitation

Answer 20

1. It may be possible to alter the name of a defendant after the limitation period has expired if the defendant has been correctly identifed but mistakenly named.
2. However, the nor-mal limitation period will apply where the intention is to add a new party after limitation has expired.

Question 21

Claimants Who Are Minors

Answer 21

If the claimant is a minor, the clock for the limitation period will not start to run until the claimant’s 18th birthday.

Question 22

Claimants Who Lack Capacity

Answer 22

1. If the claimant lacks mental capacity** at the point of accrual of the cause of action**, the clock does not start running until cer-tifcation that the claimant is of sound mind. If, however, the claimant has capacity when the action accrues, the clock will not stop running, even if the claimant loses capacity during the limitation period.

Question 23

Fraud or Concealment

Answer 23

In cases involving fraud or concealment, the limitation period runs from the date when the claimant discovers the fraud or concealment or could have done so with reasonable dili-gence. It will not run whilst a relevant fact has been deliberately concealed by the defendant.

Question 24

Mistake

Answer 24

If the claim is for relief from the consequences of a mistake,
time does not start to run until the mistake has been discov-
ered or could have been discovered with reasonable diligence