If you intend to bring a claim for personal injury or medical negligence it is important to know that there are very strict rules about how long you have to make your claim. These rules are set out in the Limitation Act 1980. The Act stipulates the various time limits for issuing court proceedings in different types of claim. Claimants need to be aware that if proceedings are not issued within the relevant timescale, you could lose your right in law to bring your claim.
Clinical Negligence and Personal Injury
The general rule is that you have have 3 years from the date on which you sustained an injury attributable to negligence to issue court proceedings. However, sometimes you may not be aware that your injury is attributable to negligence until a later date. In these circumstances, you will have 3 years from your ‘date of knowledge’ in which to issue court proceedings.
Claims made after the relevant 3-year period has passed are, in most cases, likely to fail on the basis that court proceedings should have been issued before the 3-year deadline. However, section 33 of the Limitation Act 1980 does give the Court discretion to allow claims to go ahead in limited circumstances. When considering whether to exercise its discretion the Court will look at a number of different factors including the length of the delay and the reasons for it.
We would always recommend instructing a solicitor at the earliest possible opportunity so as to ensure that there is plenty of time for the solicitor to investigate the claim and secure the evidence required to prove the claim. Sometimes this is not possible and so solicitors can try to negotiate an extension of the 3-year limitation period with the Defendant(s), if they are willing, in advance of the deadline expiring.
Exceptions to the Rule
Whilst the general rule of thumb is that claims must be brought within 3 years of the date of injury or the date of knowledge, there are exceptions to this rule. These are:
If a person dies as the result of negligence, a claim can be brought on behalf of their Estate and/or their dependents. Proceedings must be issued within 3 years of the date of their death. Grant of Probate or Letters of Administration (if they died without a Will) will be required before proceedings can be issued.
Sometimes there can be significant delays at the Probate Registry and so it is important to instruct a solicitor at an early stage in order to allow plenty of time to investigate the claim and, if the evidence is supportive, to obtain the Grant of Probate or Letters of Administration.
Children have 3 years from the date of their 18th birthday in which to bring a claim. This means that a Claim must be brought before their 21st birthday.
Whilst the 3-year limitation deadline may be years or even more than a decade away, we would always recommend instructing a solicitor early in order to secure the evidence to support the claim.
If the injured party lacks mental capacity, then the 3-year limitation period will not apply, unless they regain mental capacity at a later date. If capacity is regained, the limitation clock will start to run and the injured party will have 3 years from the date on which they regained capacity to bring a claim.
It is important to note, however, that under the Mental Capacity Act 2005 there is a presumption of capacity. This means that it cannot be assumed that a person does not have capacity to make their own decisions regarding their legal claim just because they have a particular disability or condition, unless there is evidence proving they lack capacity.
Product liability claims are brought against manufacturers, distributors, or suppliers and apply when there is a defect in the design or the manufacture of an item that has caused you to suffer an injury. The limitation rules regarding these claims are more complex.
If you have been injured as the result of a defective product you will have 3 years from the date of your injury in which to bring your claim. However, there is also a 10 year ‘long stop’ period from the date on which the defective product was put into circulation. If you sustain an injury due to a defective product more than 10 years after that product entered into circulation, then you would not be able to bring a claim. Your right to bring a claim ceases from the end of the 3-year limitation period or the end of the 10-year long stop period if this falls sooner. For example, if you were injured by a defective product that had been in circulation for 9 years at the time of your injury, you would only have 1 year in which to issue proceedings at Court.
Given the complexities of the rules, the challenges of determining when a product entered into circulation, and the potentially short timescale for bringing a claim, we recommend instructing solicitors as soon as you can. It should be added that the Court does not have discretion to allow a claim to proceed outside of the 10-year long stop period.