2. Pre-Action Considerations: Limitation Flashcards

1
Q

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

A

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

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2
Q

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

A

Six years

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3
Q

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

A

Three years

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4
Q

What is the limitation period for defamation claims?

A

One year

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5
Q

What is the limitation period for unfair dismissal claims?

A

Three months

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6
Q

What is the long stop limitation for latent defects?

A

Fifteen years

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7
Q

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

A

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

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8
Q

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

A

When the claimant first gains knowledge that they have a claim

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9
Q

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

A

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

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10
Q

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

A

No, sufficient information is enough

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11
Q

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

A
  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)
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12
Q

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

A

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

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13
Q

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?

A

Three years from:

  1. Date of death, or
  2. Date of knowledge of the deceased’s personal representative
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14
Q

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

A

On the date of breach

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15
Q

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

A

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.

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16
Q

What is a latent defect?

A

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

17
Q

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?

A

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

18
Q

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

A

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

19
Q

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

A

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

20
Q

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

A

The day after the date of accrual

21
Q

Procedurally, when does time stop running?

A

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

22
Q

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

A

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

23
Q

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

A

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

24
Q

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?

A

Yes

25
Q

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

A

On their 18th birthday

26
Q

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

A

When they are certified as being of sound mind

27
Q

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

A

No

28
Q

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

A

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