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A rough guide to Personal Injury and Clinical Negligence Litigation for Professional Indemnity Lawyers

Limitation

Questions of limitation in underlying clinical negligence or personal injury cases are frequently the subject matter for consequent professional indemnity litigation. Time limits for injury cases are different from elsewhere in the law and can give rise to particularly complicated issues concerning things such as dates of knowledge and discretionary extensions of time.

Failure to bring a claim within primary limitation or, as appropriate, make an optimal application for an extension of time could mean a claimant party is denied the chance to bring their claim and will be looking to the professional indemnity insurers of their solicitors for recompense.

Primary limitation

Primary limitation periods vary depending upon underlying factual circumstances. The usual 3-year period in negligence leading to personal injury1 does not universally apply, for example to claims concerning an accident when travelling by air or by sea (2 years)2; claims for accidents abroad by package holiday-makers (2 years)3; or claims alleging breaches of human rights (1 year)4. It is common for injury practitioners to get this wrong and, should they do so, potentially face a claim for professional negligence.5

Dates of knowledge

Dates of knowledge can be crucial to limitation in clinical negligence and injury cases where diagnoses are often delayed. Section 14 of the Limitation Act 1980 defines what is meant by this. 6In appropriate cases it can be said that a claimant party’s date of knowledge can be years after the events giving rise to a claim, such as where the injury itself and/or knowledge that it was attributable to by the complained-about act or omission and/or the identity of the defendant only became apparent later.

It could be argued that such knowledge could only have come about after the instruction of an expert, but the test overall is an objective one. This can lead to confusion. A failure to appreciate whether there is an argument to be made and its merits, could mean a claimant is denied the chance to bring a good claim in time.

Discretionary extensions of time

Extensions of time are available at the discretion of the court pursuant to section 33 of the 1980 Act for negligence claims and section 7(5)(b) of the Human Rights Act 1998* for claims brought under the same. Failure to seek or prosecute an application for an extension of time as soon as reasonably possible, putting forward the claimant’s best case, could lead to a claim by a claimant left with an unnecessarily stale case.7

Negligently pursued applications leading to a refusal by the court to extend time probably are not appealable,8 meaning disappointed claimants may be all the more ready to consider proceeding against their former lawyers.

Children and patients / protected parties

Children and patients / protected parties can cause difficulties regarding limitation. For children, the usual rule that limitation will not run until their 18th birthday will not apply in cases concerning injuries when traveling by air or sea, or accidents abroad.

Should the claimant have lost capacity but formerly had it (even for a brief period) within the primary limitation period, the usual 3-year limitation period will probably still apply.

Hailsham Chambers specialises in clinical and professional negligence with many members having considerable experience of both areas and frequently acting in claims for failed personal injury or clinical negligence litigation.

  1. s11 of the Limitation Act 1980
  2. Art. 16(3) of the Athens Convention as incorporated into law by s183 of The Merchant Shipping Act 1995; Art. 35 of the Montreal Convention as incorporated into law by s2 of The Carriage by Air Acts (Implementation of the Montreal Convention 1999) Order 2002.
  3. s16 of the Package Holiday (etc.) Regulations 1992.
  4. s7(5) of The Human Rights Act 1998
  5. Primary limitation was missed by the solicitor in Bond v Livingstone [2001] Lloyd’s Rep PN 771; Berney v Saul (t/a Thomas Saul & Co) (unreported, QBD, 24/07/2015). Failure to advise as to limitation periods was also found to have been negligent (here in the context of EU law) in JJ Dent v NFU NLD, 17/6/99 per Evans-Lombe J
  6. Professional indemnity practitioners will note the parallels between s14 and s14a of the Limitation Act 1980
  7. See for example,: Carlton v Fulchers [1997] PNLR 337, CA where no s33 application was made which was found to be negligent; and Bark v Hawley [2004] EWHC 1344 (QB) in which advice received in respect of an application was deemed harder to criticise retrospectively.
  8. See, Kimathi & Ors v Foreign & Commonwealth Office [2018] EWCA Civ 2213

 

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