When considering whether to bring a claim against an opponent in court it is vital to keep in mind the time period within which a claim can be made. People are often unaware of or get caught out by the strict limits within which an injury claim must be brought. In particular, individuals that have suffered serious injuries can find that by the time they feel up to looking into a claim, or feel the need to do so because of ongoing disability and financial impact, it may already be too late to do so. It is therefore important that people seek specialist legal advice well in advance of the deadline.
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. People are often mistaken in thinking that the deadline is in relation to when you start looking at making a claim – or sometimes that they must have concluded the claim by this time. However, different time periods apply to cases where the injury happens abroad or on a plane or boat.
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 claim. An application can be made to the court for permission for the claim to be issued out of time or continue where issued 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 the defendant will not be prejudiced by such permission being given. There is therefore potential to still look at a claim after the expiry of the time period but there are significant risks involved.
There are some particular exceptions where the limitation period does not apply. For children where the injury is sustained whilst they are under the age of 18, their 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 either that their injury was caused by the negligence of another party and/or that they had in fact sustained a significant injury. These situations are very fact specific but in certain circumstances the three year period will not start to run until they were or could reasonable have been aware of the potential negligence/injury.
Philippa Luscombe, partner in the clinical negligence and personal injury team at Penningtons, advises: “The three year period is therefore very important and 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 what is otherwise a valid claim.”
For further information speak to a member of the Penningtons clinical negligence/personal injury team on 0800 328 9545.