2020-04-30
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Time limits for personal injury or medical negligence action

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Posted by Gemma Carson on 04 May 2015

Gemma Carson Partner - Head of Dispute Resolution

There are strict time limits for bringing a personal injury or medical negligence action. Whilst the general rule is that a Claimant has 3 years from the date of the negligence, or date of knowledge of the negligence, in which to either settle their claim or issue court proceedings against a Defendant, this is not always the case and each case should be assessed on its own facts. It is advisable to seek advice if there are any doubts as to the date.

When a limitation date or a time limit has been missed by a professional, it can cause a Claimant to suffer financial loss. In such circumstances, a Claimant may have a right of action against the professional for the loss of chance of bringing a successful claim.

Limitation date

If a claim is not settled, or court proceedings are not issued , by the third anniversary of the negligence then the Court will deem the matter to be statute barred which means that the claim is out of time and effectively the right to claim compensation is lost.

There are varying time limits dependent upon the type of claim that is brought and who is bringing the claim. For a claim brought by a minor (under the age of 18), the 3 year time period does not start until the minor’s 18th birthday and therefore if a child brings a case in negligence they have until their 21st birthday in which to either settle their claim or commence court proceedings.

If a Claimant lacks mental capacity to bring a claim i.e. does not have capacity to conduct litigation then the 3 year time period does not commence until the person regains capacity. Therefore if a person will always lack mental capacity to conduct litigation in light of the injuries they have suffered, the 3 year time period may never begin. In circumstances where a Claimant dies as a result of the negligence of the Defendant, or during the course of the claim, then the Claimant’s Estate will have a 3 year time period to bring the action from the date of the Claimant’s death.

For cases involving the Criminal Injuries Compensation Authority (a government body who compensate victims of assault) then there is a strict 2 year time limit from the date of assault. Similarly, accidents that happen whilst on a boat or a plane have a strict 2 year time period to bring the claim and, unlike all other cases which are governed by the Limitation Act 1980 which sets out the time limits for the bringing the action, the Athens Convention and the Montreal Convention provide the relevant law for the limitation dates for these actions.

It is vital that at the start of any claim that the limitation date is identified correctly to ensure that the matter is settled or court proceedings are issued within the limitation period for the type of claim that is brought.

If the limitation date is missed and court proceedings are issued outside of the relevant limitation period, then an application can be made to the Court for permission to continue with the claim outside of the limitation period, however the court will need to be persuaded that there was good reason for the case to be brought outside the limitation date and that no prejudice was caused to the Defendant.  In circumstances where a solicitor has been acting and the date has been missed it will be difficult to persuade a court that there is good reason.

Service of Court proceedings

Once a claim form has been issued at court, then a Claimant has 4 months in which to serve the court proceedings upon the Defendant(s). The 4 month period is calculated by calendar month and runs from the date the claim form was issued at court. The proceedings  must be ‘deemed’ served on the Defendant within this 4 calendar month period, failing which a Defendant will allege that the case is statute barred and out of time. 

It is vital that the limitation date is considered at the outset of any matter to ensure that a case is brought in a timely fashion and that both the limitation date and service date are not missed. 

If you consider your solicitor has missed a time limit or limitation date then you may have a claim for professional negligence. You will need to establish that as a result of the missed time limit or limitation date that you have suffered financial loss. In these circumstances, your claim for professional negligence will be brought for the lost chance of securing compensation against the original defendant.

If you consider your professional advisor has missed a time limit or limitation date which has caused you some financial loss, contact should be made with a specialist as soon as possible as there are also strict time limits for bringing a professional negligence action.

About the author

Gemma Carson

Partner - Head of Dispute Resolution

Gemma specialises in commercial litigation and has a wealth of experience in dealing with all types of commercial contract dispute.

Gemma Carson

Gemma specialises in commercial litigation and has a wealth of experience in dealing with all types of commercial contract dispute.

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