Seek specialist legal advice on time limits before bringing a clinical negligence claim

Posted: 10/08/2015

When considering whether to bring a clinical negligence claim, it is vital to keep in mind the time period within which it can be made. People are often unaware of or get caught out by the strict limits beyond which the claim is time barred.

People who have suffered serious injuries may find that, by the time they feel up to looking into a claim or recognise the need to do so because of ongoing disability and financial impact, it may already be too late. Equally, people may miss out on the opportunity to claim if they think they are ‘out of time’ when, in fact, they may not be. It is therefore important that people seek specialist legal advice on the time limits that apply to any potential case and at what point they may be time barred from taking action.

A maximum period of three years was set out for claims of this type in the Limitation Act 1980. This act provides the deadlines within which a claim made in the UK must be issued at court. However, as a claim must be investigated and assessed before engaging in court proceedings, people should start looking at claims several months before the three year deadline.

If the limitation period is missed, the claim is statute barred and, if court proceedings are issued after this date, the defendant will argue the expiry of limitation as a defence to the entire case. An application can be made to the court for permission for the claim to be issued or continue out of time. However, the circumstances when this is allowed are limited and the judge must be persuaded there is a good reason why proceedings were not issued within the necessary timescale. The judge must also be convinced that the defendant will not be prejudiced by such permission being given. There is therefore potential to look at a claim after the expiry of the time period but significant risks are involved.

Some particular exceptions exist where the three year limitation period does not apply. For children who sustain an injury while they are under the age of 18, the three year period does not start to run until their eighteenth birthday. For an individual who is deemed to lack mental capacity in the context of being able to conduct litigation, the three year period does not come into effect unless and until they regain capacity – so someone with a serious brain injury may never be constrained by a time limit. The other exception that can apply is if the individual was not aware and would not have been reasonably expected to be aware that their injury was caused by the negligence of another party and/or that they had in fact sustained a significant injury. This can sometimes be the case when someone suffering a poor outcome from medical treatment is reassured that it is a recognised complication and /or will recover but, in fact, there has been negligence or they do not in fact recover. These situations are very fact-specific but, in certain circumstances, the three year period will not start to run until they were or could reasonably have been aware of the potential negligence or injury.

Philippa Luscombe, partner in the clinical negligence team at Penningtons Manches LLP, advises: “The applicable time period within which an individual needs to bring any claim is very important. It is vital that people seek specialist legal advice in time to allow an assessment and investigation of the case before the limitation period expires. Otherwise they may lose their opportunity to bring a valid claim. Equally, people who may think that they are out of time but for whom bringing a claim could make a big difference to quality of life should seek specialist advice as to whether in fact they may still be able to claim.”

For further information, please speak to a member of Penningtons Manches’ clinical negligence team on 0800 328 9545 or email philippa.luscombe@penningtons.co.uk.

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