2. Pre-Action Considerations: Limitation

Question 1

What is the outcome where a solicitor incurs costs advancing a claim which is statute-barred?

Answer 1

They will be deemed negligent and not acting in client’s best interests

Question 2

What is the limitation period for breach of contract and most claims in tort?

Answer 2

Six years

Question 3

What is the limitation period for personal injury and fatal accident claims?

Answer 3

Three years of the latest of:
a. the date the cause of action accrued
b. the date of knowledge of the person injured.

Question 4

What is the limitation period for defamation claims?

Answer 4

One year

Question 5

What is the limitation period for unfair dismissal claims?

Answer 5

Three months

Question 6

What is the long stop limitation for latent defects?

Answer 6

Fifteen years latest tortious act long-stop
AND later of
a. 6 years from the cause of action OR
b. 3 years from requisite knowledge or right to bring claim

Question 7

In a tort action, when does the limitation period begin running?

Answer 7

Generally, from the date the cause of action accrues, i.e. when the tort occurs

Question 8

In a tort action where the claimant’s injury is not apparent, when does the limitation period begin running?

Answer 8

When the claimant first gains knowledge that they have a claim

Question 9

In a tort action, when is the date of knowledge considered to be?

Answer 9

The point at which the claimant had sufficient knowledge of all the facts to commence investigations into the potential claim against the defendant

Question 10

In a tort action, does the claimant need to know the precise details in order for the date of knowledge to start the timer?

Answer 10

No, sufficient information is enough

Question 11

In a tort action, the date of knowledge does not occur until the claimant has knowledge of what four things?

Answer 11

1. That the injury is significant
2. That it is attributable in whole or part to the act or omission alleged
3. Knowledge of the defendant
4. Identity of any other actors if it is they who did the conduct, not D (e.g. hospital/doctor situation)

Question 12

In a tort action, in addition to knowing they have an injury, what must a claimant know?

Answer 12

Causation, i.e. that the injury arose from a negligent act or omission of an identified defendant

Question 13

In a tort action, what are the two options for the limitation period if the injured party dies within three years of the accrual date?

Answer 13

Three years from:

1. Date of death, or
2. Date of knowledge of the deceased’s personal representative

Question 14

What is the effect of a claim being outside the limitation period?

Answer 14

The defendant will have a full defence.

Question 15

What is the limitation period for an action to enforce a judgment?

Answer 15

6 years from when the judgment became enforceable, nor can interest be recovered after that period.

Question 16

What is the effect of the injured party dying on the limitation period in tort?

Answer 16

Where a limitation is six years, it reduces it from six years from the date of accrual to three years from the date of death

Question 17

In a contract action, when does the limitation period begin running?

Answer 17

On the date of breach

Question 18

What is a make good clause in a contract and can they be used to override statutory limitation periods?

Answer 18

They are clauses, typically in construction contracts, that the construction company will make good on any defects for a period, usually 1-2 years, after construction.

They are irrelevant to statutory limitation periods, unless they expressly limit the period and are reasonable per Unfair Contract Terms Act 1977.

Question 19

What is a latent defect?

Answer 19

A defect in property caused by fault in design, materials, or workmanship that existed at the time construction was completed but was not apparent at that time

Question 20

Where there is a latent defect, what limitation period is available in addition to the general rule of six years from the date of accrual?

Answer 20

Three years from the earliest date on which the claimant knew or ought reasonably to have known material facts necessary to bring an action

Question 21

What is the longstop limitation period for latent defects, after which no actions can be brought?

Answer 21

Fifteen years from accrual, which is usually completion of the project

Question 22

When can the limitation period in contract of tort be extended?

Answer 22

• in relation to PI claims and fatal accidents claims.
• automatically extended where the claimant is ‘under a disability’ (meaning lacking capacity to conduct the proceedings or being under the age of 18) at the time the cause of action accrued. Limitation starts to run from when the disability ends and the limitation periods are modified slightly.
• also extended in cases of fraud, concealment or mistake (limitation does not start to run until the claimant discovered the fraud, concealment or mistake (or could with reasonable diligence have discovered it).

Question 23

Is it possible to expressly shorten a limitation period in a contract?

Answer 23

Yes, but this will be subject to reasonableness requirements under the Unfair Contract Terms Act 1977 (see contract law slide deck 7: Exclusion Clauses)

Question 24

Procedurally, when does time begin to run relative to the date the cause of action accrues?

Answer 24

The day after the date of accrual

Question 25

Procedurally, when does time stop running?

Answer 25

When the claimant delivers the properly completed claim form to the court with a request to issue together with the appropriate fee

Question 26

What occurs if the limitation period expires on a day when the court office is closed?

Answer 26

The action will still be on time as long as the documents/fee are filed on the next business day

Question 27

Is it possible to add a new party to proceedings after the limitation period has expired?

Answer 27

No, unless an application to disapply the limitation period is made to the court

Question 28

After the expiry of the limitation period, is it possible to amend the name of a mistakenly spelled/identified defendant in proceedings which were originally filed on time?

Answer 28

Yes

Question 29

When does the limitation period begin to run where a claimant is a minor?

Answer 29

On their 18th birthday

Question 30

When does the limitation period begin to run where a claimant lacks capacity at the time of accrual?

Answer 30

When they are certified as being of sound mind

Question 31

If a claimant has capacity at the time of accrual and subsequently loses capacity, is the clock paused?

Answer 31

No

Question 32

When does the limitation period begin to run in cases of (1) fraud or concealment or (2) relief from the consequences of a mistake?

Answer 32

When the claimant discovers the fraud/concealment or mistake, or could have done so with reasonable diligence