Limitation of Actions 99
CHAPTER 7
Limitation of Actions
7.1 Introduction 99
7.2 The limitation period 99
7.3 Date of knowledge 100
7.4 Persons under a disability 105
7.5 Limitation in assault cases 105
7.6 Claims following fatal accidents 106
7.7 Other periods of limitation 107
7.8 The court’s discretion to override the limitation period 107
7.9 Dealing with limitation issues in practice 110
7.10 Conclusion 112
7.11 Claimant’s limitation checklist 113
LEARNING OUTCOMES
After reading this chapter you will be able to:
• set out the law as it relates to limitation in cases involving a claim for personal injuries
and a claim following a fatal accident
• appreciate that the court may use its discretion to disapply the limitation period, and
set out the factors which it takes into consideration
• apply the law to real-life situations.
7.1 INTRODUCTION
The law relating to limitation is fairly complex and can cause difficulties for the unwary. Each
year, there is a steady flow of case law relevant to this area, partly because clients seek legal
advice far too late, but also because solicitors sometimes breach the duty of care owed to their
clients by failing to ensure that proceedings are issued within the limitation period.
Consequently, one of the first priorities for the claimant’s solicitor will be to identify when the
limitation period ends and, having established this, to mark the file with that date and enter it
into the diary system.
The principal statute dealing with limitation issues is the Limitation Act 1980 (LA 1980).
For the purpose of limitation in a personal injury claim, ‘personal injury’ includes any disease
and any impairment of a person’s physical or mental condition (s 38).
7.2 THE LIMITATION PERIOD
Under ss 11 and 12 of the LA 1980, where a claimant claims damages for negligence, nuisance
or breach of duty, and that claim consists of or includes a claim for personal injuries, the
claimant must normally commence his claim (ie the claim form must be issued, or received by
the court in order to be issued) within three years from:
(a) the date on which the cause of action accrued; or
(b) the date of knowledge (if later) of the person injured (s 11(4); see 7.3 below).
100 Personal Injury and Clinical Negligence Litigation
When calculating the three-year period (generally referred to as the ‘primary’ limitation
period), the day on which the cause of action accrued is excluded (s 2). Therefore, in a simple
road traffic accident case, generally the claimant has three years from the incident (excluding
the date of the incident) in which to commence the claim. If the last date of this period is a
Saturday, Sunday or Bank Holiday, the time is extended until the next day when the courts are
open and the claim can be issued.
Where the three-year period has expired, the claimant is not prohibited from commencing
proceedings, although if he does so, the defendant may seek to have the claim struck out on
the grounds that it is statute barred. However, the claimant may apply to the court for the
limitation to be disapplied under s 33 of the LA 1980 (see 7.8).
7.3 DATE OF KNOWLEDGE
A claimant may work in an environment which exposes him to injurious dust particles such as
asbestos dust or coal dust. It may be many years before an illness or disease manifests itself,
and it may be some time later before the claimant realises what the cause of his illness is.
Similarly, in a clinical negligence context, a patient may be fully aware of his pain and
suffering but assumes that it is entirely due to an underlying illness, rather than due to
negligent advice from or treatment by a doctor. In such circumstances, it is not unusual for a
claimant to issue proceedings many years after the expiry of the three-year limitation period
and to seek to rely on a later date of knowledge under s 14 of the LA 1980. Where he seeks to
do so, the burden of proof rests with the claimant.
7.3.1 Section 14 of the Limitation Act 1980
Section 14 of the LA 1980 defines ‘date of knowledge’ for the purpose of ss 11 and 12 as
follows:
(1) In sections 11 and 12 of this Act references to a person’s date of knowledge are references to the
date on which he first had knowledge of the following facts—
(a) that the injury in question was significant; and
(b) that the injury was attributable in whole or in part to the act or omission which is alleged
to constitute negligence, nuisance or breach of duty; and
(c) the identity of the defendant; and
(d) 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;
and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence,
nuisance or breach of duty is irrelevant.
(2) For the purposes of this section an injury is significant if the person whose date of knowledge is
in question would reasonably have considered it sufficiently serious to justify his instituting
proceedings for damages against a defendant who did not dispute liability and was able to
satisfy a judgment.
(3) For the purposes of this section a person’s knowledge includes knowledge which he might
reasonably have been expected to acquire—
(a) from facts observable or ascertainable by him; or
(b) from facts ascertainable by him with the help of medical or other appropriate expert
advice which it is reasonable for him to seek;
but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only
with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where
appropriate, to act on) that advice.
7.3.2 The meaning of knowledge and the starting of the clock
In Halford v Brookes [1991] 3 All ER 559, it was stated that knowledge does not mean ‘know for
certain and beyond the possibility of contradiction’, but rather ‘know with sufficient
Limitation of Actions 101
confidence to justify embarking on the preliminaries to issue of proceedings, such as
submitting a claim to the proposed defendant, taking legal advice and other advice and
collecting evidence’.
Consequently, the date of a claimant’s knowledge is the date on which the claimant first knew
enough of the various matters set out in s 14(1) to begin to investigate whether he has a claim
against the defendant. For example, where a specialist told the claimant that he had an
inhaled disease or industrial injury and the only source for this could be his work for the
defendants (Corbin v Penfold Metalizing [2000] Lloyd’s Rep Med 247), or where the claimant was
told by a community worker that his deafness could have been caused by his work in a mill (Ali
v Courtaulds Textiles Limited [1999] Lloyd’s Rep Med 301).
It should be noted that knowledge will be present even though the claimant’s psychological
condition leads to a state of denial. In TCD v (1) Harrow Council (2) Worcester County Council (3)
Birmingham City Council [2008] EWHC 3048 (QB), the clamant sought damages in relation to
child abuse suffered from 1975 and 1981. The fact that her psychological or mental state ‘may
have meant that she was in denial and/or could not face reliving her abuse for the purposes of
the claim’, was not relevant for the purposes of determining her knowledge (although it was
relevant in relation to the exercise of discretion under s 33 – see 7.8).
Although it may be possible to identify a specific date when it is clear that the claimant had
the requisite knowledge, the court may determine that the claimant should have acquired this
knowledge at an earlier date.
7.3.3 Actual and constructive knowledge
Where a claimant wishes to rely on a later date of knowledge, he will seek to fix that date as
being the date when he actually acquired the requisite knowledge. This is known as ‘actual
knowledge’. The defendant, though, may argue that the claimant had actual knowledge of
these matters at an earlier date and/or should have obtained knowledge at an earlier date, and
that the claimant is thereby fixed with ‘constructive knowledge’.
[Link] Actual knowledge
When considering the question of actual knowledge, claimants will often seek to rely on a
date when they were told that their injury or illness was caused by the defendant’s actions,
usually by a doctor or a solicitor. However, the court may determine that a claimant had actual
knowledge at an earlier date.
In Spargo v North Essex District Health Authority [1997] 8 Med LR 125, the court held that a
subjective test was to be applied, namely ‘What did the claimant know?’ and not ‘What would
a reasonable layman realise?’ The facts of the case were that the claimant had been diagnosed
as suffering from selective brain damage and was compulsorily detained in hospital from
1975 until 1981. The proceedings were not issued until 1993, although the claimant had first
consulted solicitors in 1986. At this time she did not know whether she had a case but felt
clear in her own mind that her suffering was attributable to a mistaken diagnosis. It was held
on appeal that because the claimant was clear in her own mind that a connection existed
between her suffering and the misdiagnosis when she first sought legal advice in 1986, it was
not necessary for the court to enquire further whether a rational lay person would have been
willing to say that he knew of a connection between the suffering and the misdiagnosis
without first obtaining a medical confirmation.
In Ministry of Defence v AB and others [2012] UKSC 9, the Supreme Court looked at limitation as a
preliminary issue in the context of nine conjoined cases. The claimants, all veteran
servicemen, claimed that they had suffered numerous illnesses as a result of exposure to
ionising radiation during nuclear tests carried out by the British Government in the 1950s. At
first instance, it was held that actual and constructive knowledge arose only when each
veteran had been made aware of the Rowland Study in 2007, which was the first credible
102 Personal Injury and Clinical Negligence Litigation
scientific evidence that the exposure could cause the illnesses complained of. Although,
applying that test, none of the cases was statute barred, five of the veterans had already
formed a strong belief that exposure to radiation had caused their illnesses, and this was
sufficient to amount to actual knowledge. These cases would have been statute barred had the
court not exercised its discretion under s 33 to disapply the limitation period (see 7.8 below).
The Court of Appeal and the Supreme Court determined that the wrong approach had been
taken in relation to the date of knowledge, and that the discretion to disapply the limitation
period should not be exercised. The claimants had argued that they had not known that their
illnesses were attributable to the acts or omissions of the defendant more than three years
prior to issue of proceedings; they might have believed this to be the case, but the Act required
knowledge. However, the Court of Appeal unanimously and the Supreme Court by a majority
held that a reasonable belief (ie more than a fanciful suggestion) that the defendant was
responsible amounted to knowledge. All that was required was sufficient knowledge to justify
further investigation and commencement of the preliminaries to making a claim.
For the purposes of establishing knowledge, it was irrelevant that the claimants were still not
in a position, after many years of investigation and campaigning, to establish causation.
However this, and the lapse of time, led to the Court determining that time should not be
extended under s 33.
It is possible that a claimant may be fixed with actual knowledge of certain facts even if a
medical expert has advised him that this was not the case. In Sniezek v Bundy (Letchworth) Ltd
(2000) LTL, 7 July, the Court of Appeal ruled that the claimant had the knowledge from the
date when he went to complain to his doctor of severe symptoms but was assured that there
was no link between the illness and his work. The Court decided that the claimant knew that
his severe throat symptoms, which had persisted for five years, were a significant injury, and
that he had always attributed them to his work. The fact that a doctor subsequently advised
him that this was not the case, did not change the fact that he had actual knowledge.
[Link] Constructive knowledge
Where a claimant is not fixed with actual knowledge, he may be fixed with constructive
knowledge in accordance with s 14(3) of the LA 1980.
In accordance with s 14(3) (see 7.3.1), a claimant cannot argue that he did not have the
requisite knowledge due to his ignorance of the law, or because he failed to make further
enquiries or seek appropriate advice. The test is an objective one: knowledge which would
have been obtained by a reasonable man in the same circumstances as the claimant will be
imputed to the claimant. So, there is an assumption that a reasonable man who had suffered a
significant injury would be sufficiently curious about the cause of the injury that he would
seek expert advice (see Adams v Bracknell Forest BC [2004] UKHL 29), unless there were reasons
why a reasonable man in his position would not have done so (see Johnson v Ministry of Defence
[2012] EWCA Civ 1505).
The objective nature of the test was confirmed by the House of Lords in A v Hoare [2008]
UKHL 6, when it was said that the correct approach was to ask what the claimant knew about
his injury, add any ‘objective’ knowledge which might be imputed to him under s 14(3) and
then ask whether a reasonable person with that knowledge would have considered the injury
sufficiently serious to justify his instituting proceedings. Once the court has determined what
the claimant knew and what he should be treated as having known, the actual claimant drops
out of the picture, and judges should not consider the claimant’s intelligence. Consequently,
the effect of any psychological injuries resulting from the breach of duty upon what the
claimant could reasonably have been expected to do is irrelevant when considering
constructive knowledge. (However, this will be considered by the court when deciding
whether to exercise its discretion under s 33 to disapply the limitation period – see 7.8.)
Limitation of Actions 103
In Forbes v Wandsworth Health Authority [1997] QB 402, the claimant, who suffered from poor
circulation, underwent surgery for a by-pass operation. This was not a success and a further
by-pass was performed the next day. Unfortunately, the second operation was too late to be
successful and the claimant was told that it was necessary to amputate his leg to prevent
gangrene, to which he agreed. The sole allegation was that the authority had been negligent
not to perform the second operation sooner. The claimant did not seek advice until seven
years after the limitation period had expired. The Court of Appeal held by a majority that the
claimant was deemed to have constructive knowledge as soon as he had time to overcome the
shock of the injury, take stock of his disability and seek advice.
In Kew v Bettamix Ltd ( formerly Tarmac Roadstone Southern Ltd) & Others [2006] EWCA Civ 1535, the
claimant issued proceedings in respect of injuries suffered from his exposure to vibrating
equipment during his employment with the defendants. As early as 1991 the claimant had
experienced numbness in his fingers, but had thought this was due to his age. On 29 March
2000, following a routine occupational health care assessment, he was informed by means of
a letter from an occupational physician that his symptoms might be attributable to his
exposure to vibration at work. The Court held that it was necessary for the claimant to have
sufficient knowledge to make it reasonable for him to seek to acquire further knowledge of
the link between his injury and his prior working conditions. He did not have such knowledge
until 29 March 2000, when he received the physician’s letter. Although he was not told about
the causative link at that time, he knew that there was a real possibility that his working
conditions had caused his symptoms, and a reasonable man would have investigated further.
He was therefore fixed with constructive knowledge at that date.
In Pearce v Doncaster MBC [2008] EWCA Civ 1416, the Court of Appeal considered the
knowledge of a man who claimed damages from the local authority for its failure to take him
into care when he was a child. The claimant’s actual knowledge arose when he saw his care
records, shortly before issuing proceedings. However, constructive knowledge took place
several years earlier, when he had requested his files but had failed to take up the appointment
to view them, even though the authority had offered to pay his train fare.
In Whiston v London Strategic Health Authority [2010] EWCA Civ 195, the claimant suffered from
cerebral palsy caused at the time of his birth, but he was highly intelligent and lived a full life.
The claimant’s mother had told him that he had been delivered by forceps and that he had
been starved of oxygen at birth, but she did not tell him that she thought the junior doctor
attending her may have been at fault until 2005, when she was prompted to do so by a
deterioration in the claimant’s condition. Proceedings were commenced in 2006, when the
claimant was 32 years old, more than 11 years after the expiry of the limitation period.
Although the Court of Appeal accepted that a person who suffers from a disability at birth is
more likely to be accepting of his disability, and therefore less likely to ask questions, than a
person who suffers an injury during adult life, it held that a reasonable man in his position
would have wanted to know more about the circumstances of his birth and would have asked
his mother, particularly as she was a nurse and a trained midwife. Consequently, it concluded
that the claimant had constructive knowledge of the facts which he discovered from his
mother in 2005 no later than when he was in his early 20s, in about 1998.
It is not necessary for the court to specify an exact date when constructive knowledge took
place. In White v EON and Others [2008] EWCA Civ 1436, the claimant claimed damages for
vibration white finger (VWF) caused whilst working for the defendant between 1962 and
1996. He argued that he first had the requisite knowledge in the summer of 2003, when he
saw an advert from a claims company describing the symptoms of VWF. At first instance, the
judge dismissed his claim on the basis that he knew he had a significant injury and it was
reasonable for him to have obtained medical advice which would have led to his linking that
injury to his employment. Consequently, he had constructive knowledge at the end of 1996.
On appeal, the claimant’s argument that it was illogical for the judge to have plucked the end
104 Personal Injury and Clinical Negligence Litigation
of 1996 as the date of constructive knowledge, because nothing significant happened at that
point to have led to that knowledge, was dismissed by the Court of Appeal. The Court held
that the end of 1996 was the latest time at which the claimant could be fixed with constructive
knowledge, as the claimant’s symptoms had reached a plateau by that time.
The issue of constructive knowledge of the identity of the defendant was considered in
Henderson v Temple Pier Co Ltd [1998] 1 WLR 1540. In this case, it was held that, where a
claimant instructed solicitors to bring a claim for damages, on the proper construction of
s 14(3) of the LA 1980 the claimant was fixed with constructive knowledge of facts which the
solicitor ought to have acquired.
7.3.4 The injury was ‘significant’
In order to determine whether the claimant was aware that the injury was significant, further
guidance is provided in s 14(2). This states that an injury is significant if the claimant would
reasonably have considered it sufficiently serious to justify instituting proceedings against a
defendant who did not dispute liability and was able to satisfy a judgment.
In McCoubrey v Ministry of Defence [2007] EWCA Civ 17, the Court of Appeal considered the case
of a soldier who, during a training exercise in 1993, had been deafened by a thunderflash
which had been thrown negligently into his trench. The claimant had known almost
immediately that he had suffered the injury, and this had been confirmed by medical
examinations. However, he had continued working in the army without complaint until 2003,
when he was told that he could not accompany his unit to Iraq because of his disability. At that
stage, he became aware of the consequences of the injury, consulted solicitors and issued
proceedings. It was held that time had started to run in 1993, as soon as the claimant had
become aware of his deafness. When determining whether an injury is ‘significant’, the court
should consider the gravity of the injury and not its effect, or perceived effect, on the personal
life or career of the claimant.
If an injury is significant, the fact that the symptoms attributable to it subsequently became
worse is irrelevant for purpose of determining when knowledge took place (see Brooks v J & P
Coates (UK) Ltd [1984] 1 All ER 702). The date of knowledge is not affected by the fact that the
consequences turned out to be more serious than was initially thought.
Moreover, in cases of multiple illnesses arising from the same course of events, time starts to
run as soon as the claimant has knowledge of the first injury that could be said to be
significant, irrespective of whether he might learn of other injuries much later.
7.3.5 Attributable to the act or omission
‘Attributable’ means ‘capable of being attributable to’ and not necessarily ‘caused by’. The
knowledge of the ‘act or omission’ does not necessarily include knowledge that the act or
omission is actionable in law. For example, if the claimant has asthma but does not know that
this is due to his working conditions, time does not start to run. However, if he is aware that
his asthma is capable of being attributed to those working conditions, time starts to run even
though he may not know that his employer may have been to blame.
In Dobbie v Medway Health Authority [1994] 1 WLR 1234, CA, Mrs Dobbie had surgery to remove
a lump in her breast. It was only during the operation that the surgeon took the decision to
perform a mastectomy (removal of the breast), as he believed the lump was cancerous. In fact,
the lump was not cancerous and the mastectomy had been unnecessary. Mrs Dobbie accepted
at the time that the surgeon had acted reasonably and it was her good fortune that the lump was
not cancerous. It was only several years later, when she heard about a similar case, that Mrs
Dobbie took legal advice and commenced proceedings. The Court of Appeal held that she knew
of the removal of her breast and the psychological and physical harm which followed within
months of the operation, and she knew it to be significant. She also knew that her injury was
Limitation of Actions 105
the result of an act or omission of the health authority and, therefore, time began to run even
though she did not appreciate until later that this act or omission may have been negligent.
7.3.6 The identity of the defendant
In most cases the claimant will know who is responsible for his injuries, but s 14(1)(c) will
assist a claimant where there is a delay in identifying the defendant, eg in the case of a hit and
run motor accident (assuming an application is not made to the Motor Insurers’ Bureau –
see 3.4).
The identity of the defendant may prove problematic in cases involving corporate groups. In
Simpson v Norwest Holst Southern Ltd [1980] 2 All ER 471, the claimant worked on a building site,
and his contract of employment stated that he was employed by Norwest Holst Group.
However, this did not identify his employer because at least four companies made up Norwest
Holst Group, including Norwest Holst Ltd and Norwest Construction Co Ltd, and the
claimant’s payslips stated simply that his employer was ‘Norwest Holst’. In the circumstances,
the Court of Appeal found for the claimant, on the basis that neither the contract nor the
payslips identified the employer, and it was not reasonable to expect the claimant to request
further particulars of the identity of his employer prior to the expiry of his primary limitation
period. For a case on similar facts, see Rush v JNR (SMD) Ltd (CA, 11 October 1999), where it
was held that knowledge of a number of potential defendants was not sufficient knowledge
for the purpose of s 14.
7.4 PERSONS UNDER A DISABILITY
Under s 38(2) of the LA 1980, a person is under a disability while he is an infant (a person who
has not attained the age of 18) or lacks capacity (within the meaning of the Mental Capacity
Act 2005) to conduct legal proceedings.
Under s 28(6), while a person is under a disability, he may bring a claim at any time up to three
years from the date when he ceased to be under a disability. Consequently, where a child is
injured, limitation does not start to run until he reaches his 18th birthday and it expires on
his 21st birthday.
Where a person is disabled within the meaning of the Mental Capacity Act 2005, the start of
the limitation period is delayed only if he was so disabled when the cause of action first
accrued. If the disability comes into existence after that date, time continues to run. However,
under s 33(3) of the LA 1980 (see 7.8) the court will have regard to any period or periods of
disability when it considers its discretion to disapply the limitation period.
7.5 LIMITATION IN ASSAULT CASES
Until January 2008, the limitation period in relation to acts of deliberate assault, including
indecent assault, followed the House of Lords’ decision in the case of Stubbings v Webb [1993]
AC 498, which involved child abuse at a children’s home. The House of Lords held that
deliberate assault did not fall under s 11(1) actions for ‘negligence, nuisance or breach of
duty’ but under s 2, and therefore the correct limitation period was six years from the date of
the cause of action (or the age of 18 in the case of a child) rather than three years. However,
there was no discretion to disapply the period under s 33, which led to unfairness in cases
where the victim had been a child or otherwise vulnerable at the time of the assault and, as a
result, lacked the psychological capacity to bring a claim.
The House of Lords departed from this approach in R v Hoare [2008] UKHL 6, the facts of
which were as follows. In 1988, the claimant had been subjected to a serious sexual assault by
Hoare, who was subsequently convicted of attempted rape and sentenced to life
imprisonment. The claimant had not brought civil proceedings against him within the six-
year limitation period as Hoare did not have the financial means to pay any damages that the
court might award. However, in 2004, whilst on day release from prison, Hoare purchased a
106 Personal Injury and Clinical Negligence Litigation
lottery ticket and won over £7 million. When the claimant heard of the defendant’s windfall,
she commenced proceedings against him, seeking to rely on the court’s discretion to
disapply the limitation period under s 33. The House of Lords heard the claimant’s appeal
against the decision that her claim was statute barred, together with four other cases, all
relating to the abuse of children in children’s homes.
Their Lordships held that Stubbings had been wrongly decided, and they extended the meaning
of claims under ‘negligence, nuisance or breach of duty’ to include deliberate assault.
Consequently, the limitation period in assault cases was three years. They remitted the matter
to the judge, for him to reconsider whether the court was able to exercise its discretion under
s 33 to disapply this limitation period (see 7.8).
7.6 CLAIMS FOLLOWING FATAL ACCIDENTS
Claims on behalf of the deceased’s estate and on behalf of his dependants are generally
brought together. Nevertheless, there are slight differences in how limitation is dealt with.
7.6.1 Claims under the Law Reform (Miscellaneous Provisions) Act 1934
Where a claim is brought on behalf of the deceased’s estate, s 11(5) of the LA 1980 provides
that if the injured person died before expiration of the limitation period of three years as set
out in s 11(4), the limitation period is three years from:
(a) the date of death; or
(b) the date of the personal representative’s knowledge,
whichever is the later. If there is more than one personal representative and they have
differing dates of knowledge, time runs from the earliest date of knowledge (s 11(7)).
If the injured person died after the expiry of the primary limitation period under s 11(4)
without commencing proceedings for the personal injuries he had suffered, or if he died
before the expiration of the primary limitation period and his personal representatives failed
to commence proceedings within three years of death or date of later knowledge, the claim is
statute-barred. However, in both instances, the court does have a general discretion to
override the above provisions and disapply the limitation period under s 33 of the LA 1980
(see 7.8).
7.6.2 Claims under the Fatal Accidents Act 1976
In relation to claims brought by the dependants of the deceased, s 12(2) of the LA 1980
provides that if the injured person died before the expiration of the limitation period of three
years as set out in s 11(4), the limitation period is three years from:
(a) the date of death; or
(b) the date of knowledge of the person for whose benefit the claim is brought,
whichever is the later.
Where there is more than one dependant, the limitation period is applied separately to each
one, taking into account the date of knowledge of each dependant. Moreover, if any
dependant is a child, time does not start to run for that dependant until he reaches 18, and the
claim will not become time-barred until he is 21.
If the dependants fail to commence their claim within the three-year limitation period, an
application can be made under s 33 to disapply the limitation period.
Where the injured person failed to commence a personal injury claim within three years of the
cause of action and subsequently died as a result of his injuries, a claim under the FAA 1976
cannot be brought by the dependants. This is because s 12(1) of the LA 1980 provides that a
claim under the FAA 1976 cannot be brought if death occurred when the person injured could
Limitation of Actions 107
no longer maintain a claim and recover damages in respect of the injury, whether because of a
limitation problem or for any other reason. In other words, the dependants of the deceased
are not in a better position than the deceased would have been. When considering whether a
claim brought by the deceased person would have been time-barred, no account may be made
of the possibility that the court would have exercised its discretion under s 33 to disapply the
limitation period. However, the court may exercise its discretion to disapply the primary
limitation period in respect of the dependants’ action. See s 12(1) of the LA 1980.
7.7 OTHER PERIODS OF LIMITATION
Although in the vast majority of personal injury cases the three-year rule will apply, it is
possible that a special rule applies, for example in regard to claims relating to aircraft under
the Carriage by Air Act 1961 or the Warsaw Convention, or relating to vessels used for
navigation under the Maritime Conventions Act 1911 or the Merchant Shipping Act 1995. In
these cases, the limitation period is generally two years.
The most common form of special rule is in respect of contributions between tortfeasors
under the Civil Liability (Contribution) Act 1978, where no claim to recover a contribution
may be brought after the expiration of two years from the date on which the right accrued.
This is generally the date on which judgment was given against the person who is seeking the
contribution, or the date when he pays or agrees to pay compensation.
7.8 THE COURT’S DISCRETION TO OVERRIDE THE LIMITATION PERIOD
Section 33 of the LA 1980 gives the court a wide and unfettered discretion to disapply the
three-year limitation period. Section 33(1) provides that:
If it appears to the court that it would be equitable to allow an action to proceed having regard to the
degree to which—
(a) the provisions of section 11 or 11A or 12 of this Act prejudice the plaintiff or any person whom
he represents; and
(b) any decision of the court under this subsection would prejudice the defendant or any person
whom he represents;
the court may direct that those provisions shall not apply to the action, or shall not apply to any
specified cause of action to which the action relates.
The onus rests upon the claimant to show why the limitation period should be disapplied
(Halford v Brookes [1991] 3 All ER 559).
Under s 33(3), the court is required to have regard to all the circumstances of the case, and it
will attempt to balance the needs of the parties by seeking to avoid prejudice caused to the
claimant by depriving him of the right to continue with the claim, or prejudice caused to the
defendant by allowing the matter to continue when he has been deprived of the ability to
defend himself.
The court is specifically directed to six factors, which are outlined below:
(a) the length and reasons for the delay on the part of the claimant;
(b) the effect of any delay on the cogency of the evidence;
(c) the conduct of the defendant following the date of the cause of action;
(d) the duration of any disability (within the meaning of the Mental Capacity Act 2005)
suffered by the claimant after the cause of action arose;
(e) the conduct of the claimant after he became aware that he might have a claim against
the defendant;
(f ) the steps taken by the claimant to obtain medical, legal or other expert advice, and the
nature of any advice received.
108 Personal Injury and Clinical Negligence Litigation
‘Delay’ in s 33(3)(a) and (b) is the delay since the expiry of the limitation period. However, the
court may consider the overall delay when having regard to all the circumstances of the case.
See McDonnell & Another v Walker [2009] EWCA Civ 1257 and Cairn-Jones v Tyler [2010] EWCA Civ
1642.
Guidance in relation to s 33(3)(a) was provided by the Court of Appeal in Coad v Cornwall and
Isles of Scilly Health Authority [1997] 1 WLR 189, CA. The Court held that it must apply a
subjective test when determining why the claimant had delayed, the length of the delay and
whether the reason was good or bad. There was no requirement for the claimant to provide a
‘reasonable’ explanation.
When considering s 33(3)(b), the extent to which evidence is less cogent, the Court of Appeal
highlighted the importance of written evidence when memories of witnesses are unreliable
due to the lapse of time (see Farthing v North East Essex Health Authority [1998] Lloyd’s Rep Med
37, CA). In 1981, the claimant had had a hysterectomy which was negligently performed, but
proceedings were not issued until 1995. When considering her application under s 33, the
court found that due to the lapse of time a number of the witnesses had died, or had moved
abroad and could recall little of the events in question. However, the Court of Appeal further
found that because there was considerable evidence available in the form of the medical
records and a letter from the surgeon to the claimant’s GP written shortly after the operation,
there would be little need for reliance on memory alone and consequently the appeal should
be allowed.
In TCD v Harrow Council and Others (see 7.3.2), it was argued on behalf of the claimant that she
had been unable to confront some aspects of the abuse to the extent that would be necessary
for the purposes of litigation, and that she had delayed proceedings until her children were
older. Nevertheless, the judge repeated what was said in Hoare (see 7.5), that not everyone who
brings a late claim for damages for sexual abuse, however genuine his or her complaint, can
expect the court to exercise the s 33 discretion favourably. He refused to exercise his
discretion in relation to the claims against two of the authorities on the grounds that the long
delay meant that evidence was not forthcoming and the defendants were therefore severely
prejudiced. (Discretion was not exercised in relation to the third claim due to the weakness of
the claim.)
In relation to s 33(3)(c), where the court is satisfied that the defendants have brought upon
themselves the prejudice that they claim to suffer, that should be taken into account and the
prejudice should be significantly discounted. In the case of Hammond v West Lancashire Health
Authority [1998] Lloyd’s Rep Med 146, CA, the defendants claimed prejudice to their case as
they had destroyed the deceased’s x-rays after three years had elapsed. The Court held that the
destruction of the x-rays was a policy implemented by the defendants, and which had no
regard for the time limits of the LA 1980. Consequently, although the prejudice caused to
their case should still be taken into account, it would be significantly discounted.
These factors are guidelines only, and the court is entitled to take into account any other
matter which it considers to be relevant. For example, the time of notification of the claim to
the defendant is of extreme importance in ascertaining prejudice, although there is no
specific reference to this in s 33. In addition, the court is entitled to consider the ultimate
prospects of the claim being successful. In TCD v Harrow Council and Others (see above), the
judge refused to grant discretion in relation to the case against Worcester County Council on
the grounds that the claim had no realistic prospects of success. (Also see Forbes v Wandsworth
Health Authority at [Link]).
In the case of Hoare (see 7.5), the House of Lords remitted the matter to the judge to
reconsider the application of s 33 in accordance with the opinions of their Lordships. In A v
Hoare [2008] EWHC 1573 (QB), the parties agreed that the main reason why the claimant had
not commenced proceedings within the limitation period was because the defendant had
Limitation of Actions 109
been impecunious and, because he had been serving a life sentence, this was unlikely to
change. She had commenced proceedings in 2004, almost 14 years after expiry of the three-
year limitation period, principally because she had learned that the defendant had won £7
million on the lottery. It was also agreed that there was no reported authority on the court
being asked to exercise its discretion under s 33 on the grounds that the defendant was
impecunious. However, the judge determined that this was a relevant factor when considering
the exercise of the discretion to disapply the limitation period. In doing so, he took into
account the fact that the defendant’s own actions were the cause of his impecuniosity. The
judge found in favour of the claimant and exercised his discretion under s 33. (The full
judgment in this case may aid understanding of the application of s 33.)
Where the proceedings are brought against the defendant outside the limitation period as a
result of the negligence of the claimant’s solicitor, and the claim is not allowed to proceed, the
claimant may have a claim against his own solicitor. It has been argued by defendants that the
fact that the claimant has a cast-iron claim against his own solicitor provides an
overwhelming reason why the limitation period should not be disapplied; the claimant will
not be prejudiced because he can pursue an alternative claim against his solicitor (rather than
the defendant). However, although the ability to claim against the solicitor is a factor for the
court to bear in mind, it is not an absolute bar against disapplying the limitation period.
The court considered this issue in Steeds v Peverel Management Services Ltd [2001] EWCA Civ 419.
In this case, solicitors issued proceedings 49 days outside of the limitation period. On appeal,
the court found that the district judge at first instance was wrong to treat the claimant’s good
claim against his own solicitors as justification for refusing to exercise a discretion under s 33.
The better view was that the existence of a claim against his own solicitors was a relevant
factor in weighing the degree of prejudice suffered by the defendant in not being able to rely
on the limitation period as a defence. To that end, it would always be relevant to consider
when the defendant first had notification of the claim. On the facts of the case, the judgment
was set aside and the court exercised its discretion under s 33, as it was unlikely that the
defendants were caused any appreciable prejudice and it was equitable to allow the claim to
continue allowing for all of the circumstances of the case.
However in McDonnell v Walker (see above), the Court of Appeal refused to disapply the
limitation period as the defendant had been forensically disadvantaged by a substantial
period of inexcusable delay.
It has also been argued by defendants that the loss of the limitation defence itself, and the
subsequent requirement to pay damages, is a prejudice which must be taken into account by
the court when considering the exercise of the s 33 discretion. In Cain v Francis; McKay v
Hamlani [2008] EWCA Civ 1451, both road traffic accident claims, the Court of Appeal
considered the so-called ‘windfall defence’, which arises where the defendant has no defence
other than one based on limitation due to the claimant’s solicitors failing to issue proceedings
on time. In each case, the defendant had admitted liability but, in the course of negotiating
damages, the claimant’s solicitors had missed the limitation deadline. In Cain, where there
was a delay of just one day, the judge refused to exercise his discretion; in McKay, the delay was
one year, but the judge exercised his discretion and allowed the case to proceed. In order to
establish a consistency of approach, as opposed to a ‘lottery for litigants’, the Court of Appeal
dealt with both cases together.
The Court of Appeal held that the defendant had a right to a fair opportunity to defend himself
and had a complete procedural defence under s 11, which would remove the obligation for
him to pay damages. However, fairness and justice meant that the obligation to pay damages
should be removed only if the passage of time had significantly damaged the defendant’s
opportunity to defend himself. Parliament could not have intended the financial
consequences for the defendant to be a consideration relevant to the exercise of discretion
under s 33. The important factor is whether the defendant is able to defend himself, and
110 Personal Injury and Clinical Negligence Litigation
therefore it would always be important to consider when the defendant was notified of the
claim against him, and whether it was still possible for him to investigate the claim and gather
evidence. This judgment has brought clarity to this area, and is likely to result in the court
exercising its discretion under s 33 in more claims which were issued late but where the
defendant’s ability to defend himself is not prejudiced.
7.9 DEALING WITH LIMITATION ISSUES IN PRACTICE
Failure to issue proceedings within the limitation period is a major source of negligence
claims against solicitors. Although this chapter includes the law and procedure relevant to an
application under s 33 to override the limitation period (see 7.8 above), prevention is better
than cure. It is therefore essential that the claimant’s solicitor establishes a routine of
checking and rechecking the limitation period on the files for which he is responsible. There
may also be many other files for which he is not responsible, but which may pass through his
hands on a regular basis. Such files are often the source of limitation problems, as one
solicitor may assume (wrongly) that the responsibility for checking limitation resides with
someone else, and the date of limitation may go unnoticed. To avoid this, the solicitor should
adopt a routine of checking for limitation on every file in which he is involved.
Needless to say, as the expiry of the limitation period provides the defendant with a
significant, although not always watertight defence, those acting for defendants should
always keep a watchful eye open for limitation issues.
7.9.1 Initial instructions
At the first interview, the claimant’s solicitor should note the date of the cause of action and
calculate the limitation period from this date. This can be verified by checking, for example,
the relevant hospital A&E notes, the employer’s accident report book, or police reports. If he
is satisfied that there is sufficient time for him to investigate the matter and commence
proceedings within the limitation period, he should mark the file with the expiry date and
enter the date into the file management system, to ensure that limitation does not become a
problem at a later stage.
If the limitation period has already expired, the solicitor will need to take account of this fact
when carrying out the risk assessment. Where there appear to be no grounds for relying on a
later date of knowledge or persuading the court to exercise its discretion under s 33, the client
should be advised accordingly. Carlton v Fulchers (a Firm) [1997] PNLR 337, CA, provides a
valuable illustration as to how a solicitor can be found to be negligent due to a failure to be
aware of limitation problems. In this case, even though the claimant did not consult the
solicitor until after the three-year limitation period had expired, the solicitor was held liable
due to his failure to advise of the possibility of an application under s 33.
Where the primary limitation period has expired and there are good arguments relating to
later knowledge and/or s 33, the claimant’s solicitor should issue proceedings without further
delay. He may delay the service of the claim form and follow the procedure as set out in 7.9.2.
In clinical negligence cases, where there is a possibility of public funding, further delays
resulting from applying for such funding must be avoided, and therefore the solicitor should
apply for emergency assistance from the Community Legal Service.
7.9.2 Protective proceedings and standstill agreements
The court does not have the power to extend the limitation period before it has expired, so in
circumstances where the claimant’s solicitor has insufficient time to investigate the matter
and carry out the steps set out in the relevant pre-action protocol before time runs out, the
options available to him to secure his client’s position are:
(a) obtain the defendant’s agreement not to plead a limitation defence;
Limitation of Actions 111
(b) enter a standstill agreement with the defendant; or
(c) commence protective proceedings.
Obtaining the defendant’s agreement not to plead a limitation defence effectively places the
parties in the position they would be in if proceedings were commenced within the limitation
period. However, as many defendants would not be prepared to enter into such an agreement,
the remaining options are more likely.
Where the parties enter a standstill agreement, the defendant agrees not to rely on a
limitation defence from a specified date, usually the date of the agreement, until he serves
notice on the claimant that he wishes to restart the clock. This has the effect of freezing time
at the specified date. Generally, agreements specify that a month’s notice must be given by the
defendant. The case of Gold Shipping Navigation Co SA v Lulu Maritime Ltd [2009] EWHC 1365
(Admlty), regarding a shipping dispute, demonstrates how important it is to take care when
drawing up such an agreement. In that case, clumsy drafting almost prevented one party from
pursuing its claim.
The claimant’s solicitor may initiate protective proceedings in order to safeguard his client’s
position. The steps which should be taken are as follows:
(a) The claim form should be issued, which will stop the clock for limitation purposes, but
should not be served upon the defendant. Under CPR, r 7.5(2), where it is to be served
within the jurisdiction, it must be served within four months of being issued. This
provides the claimant’s solicitor with some time to investigate the matter and comply
with the protocol. The particulars of claim must be served upon the defendant within 14
days after service of the claim form (CPR, r 7.4(1)(b)), but it too must be served within
four months of the claim form being issued (CPR, r 7.4(2)).
(b) The claimant’s solicitor should contact the defendant and notify him of the situation
without delay. The date when the defendant first became aware of the claim or potential
claim will be a relevant factor if the court is asked to consider whether the time limit
should be disapplied under s 33.
(c) Both parties should then follow the relevant protocol. However, there may not be time
to follow the protocol to the letter, eg there may not be time to allow the defendant three
months to investigate the matter.
(d) Where time allowed for service of the claim form is about to expire, the claimant’s
solicitor should make an interim application to the court for an extension of the time
limit relating to service (CPR, r 7.6). The application must be made in accordance with
Part 23 and supported by evidence. It is vital that this application is made within the
four months allowed for service of the claim form, as the powers of the court to grant an
extension where the application is made after the expiry of this period are limited to
when the court has been unable to serve the claim form, the claimant has taken all
reasonable steps to serve it but has been unable to do so and, in either case, the
application for the extension has been made promptly (CPR, r 7.6(3)).
(e) Where an application is made within the four-month time period, it is likely that the
court will grant an extension of time for the service of the claim form. If so, it will also
make directions in order to manage the case properly.
7.9.3 Commencing proceedings
Rule 16.4(a) of the CPR states that the particulars of claim should include a concise statement
of the facts on which the claimant relies. It therefore follows that where a claim is issued
outside the primary limitation period, the particulars of claim should, where relevant, include
a statement that the claimant relies on a later date of knowledge, and the date should be
specified.
112 Personal Injury and Clinical Negligence Litigation
It will be for the claimant to prove the later date of knowledge, and therefore this issue should
be addressed in the witness statements of the claimant and any other witness who can give
evidence on this point.
In practice, where there is a limitation problem and the parties have discussed this prior to
commencement, the claimant’s solicitor will deal with the limitation issue in the particulars
of claim. However, if the matter has not been discussed before issue, some solicitors acting
for claimants will not pre-empt a defence by raising the limitation problem in the particulars
of claim, on the basis that it is not in their client’s interests to do so. If the defendant is not
aware of the existence of the rules relating to limitation, or does not notice that the limitation
period has expired, he may admit the claim.
7.9.4 The defence
The defendant’s solicitor should carefully check each particulars of claim for limitation
problems. Where the claim form was issued outside the primary limitation period, he will
need to address the issue in the defence. Where the claimant has relied on a later date of
knowledge and the defendant seeks to rely on an earlier date of knowledge, whether actual or
constructive, he should give details.
The defendant will have to prove any earlier date of knowledge he seeks to rely on. It is
unlikely that he will be able to call witnesses of his own in this regard; rather, he will be
obliged to extract the necessary information from the claimant and any other witness during
cross-examination.
7.9.5 Dealing with limitation as a preliminary issue
In most cases, the limitation problem will be dealt with as a preliminary issue. The defendant
should consider bringing the issue to a head either by applying for the claim to be stayed
under CPR, r 3.1(f ) or, in a clear case, by applying for summary judgment under CPR,
r 24.2(a)(i). The claimant should respond by giving notice of his intention to ask the court to
exercise its discretion to disapply the limitation period under s 33. Both parties should
address the matter fully in the supporting witness statements. This will enable the court to
consider the matter before trial.
If the defendant does not bring the matter to the court’s attention by making an application,
the claimant’s solicitor should consider doing so by making an application under s 33.
Whilst the courts will normally seek to deal with limitation as a preliminary issue wherever
feasible, there will be circumstances where it is not appropriate to do so. In the case of J, K & P
v Archbishop of Birmingham & Trustees of the Birmingham Archdiocese of the Roman Catholic Church
[2008] LTL, 21 August, which involved the alleged victims of child sexual abuse, the court
held that it was not appropriate due to the large overlap of evidence and the additional stress
on the victims having to give their evidence twice.
7.10 CONCLUSION
Practitioners must be alert to limitation issues and maintain a good working knowledge of the
key sections of the LA 1980. The courts’ interpretation of the statutory provisions,
particularly in relation to actual and constructive knowledge and the discretion to disapply the
limitation period, is something of a moveable feast, and therefore practitioners must keep an
eye out for relevant case law.
Sound case management processes and an exemplary diary system are essential for claimants’
solicitors. There is claimant’s limitation checklist at 7.11 below.
Limitation of Actions 113
7.11 CLAIMANT’S LIMITATION CHECKLIST
Initial interview – check the limitation date. Has
the limitation period expired?
Yes. Can C rely on a later date of No. Is the limitation period
knowledge or s 33? about to expire?
No. Advise client No. Mark the file/enter
accordingly. into file management
systems to ensure
problems do not arise
Yes. Notify the defendant and in the future.
issue the claim form without
further delay.
Yes:
obtain defendant’s agreement not
to plead limitation defence; or
enter standstill agreement with
defendant; or
commence protective proceedings.
Address the limitation issue in the particulars of claim.
Consider making an application for limitation to be dealt with
as a preliminary issue.
114 Personal Injury and Clinical Negligence Litigation