Preliminary Considerations

Limitation

• This is when a lawyers must check that the case is not "time-barred", in other words the client has left it too late to bring a claim.
• The Limitation Act 1980 (LA 1980) sets down a strict time limit relatingto the time between the cause of action and the commencement of the litigation. This is known as limitation period.
• This prevents the defendant remaining under a constant threat of litigation and the witnesses's memories have faded.

The general rule

Limitation periods operate to provide a defendant with a technical defence to a claim that is issued a long time after the events in question. The general rule is that actions commenced outside the limitation period will not be allowed to proceed, although extensions may be available in exceptional circumstances.

Allowing a case to be lost on limitation grounds could lead to a professional negligence claim  and so it is vital that the solicitor operates an efficient diary system.

Calculating limitation periods

Personal injury claims - 3 years

Most other tort claims - 6 years

Contract claims - 6 years

Time starts to run for limitation purposes when the cause of action occurs, that is, the date on which the claim could have been brought. This is usually:

• in negligence cases, when the claimant suffers damage as a result of the alleged negligent conduct, for example, the date of the road traffic accident;
• fo children who suffer personal injuries the time limit does not start to run until they reach their 18th birthday; and
• in contract claims, when the contract was breached. Thus, in a claim for damages for late delivery it will be when the goods should ahve been delivered under the terms of the contract.

Extending limitation

For most types of claims, the limitation periods laid down by the LA 1980 are final.

Personal Injury - the client has three years from the date of the cause of action to bring his claim. However, not everyone will know, at the date of the cause of action, that they even have a claim. Therefore, time may not start running in personal injury cases until a later date known as the "date of knowledge", that is, when the claimant first became aware that his injury was linked to the original accident.

Discretion to extend limitation- If the claimant failed to meet the limitation date, the court has discretion to extend it, but will rarely do so.

Viability

Before launching into litigation, it is important to check whether it is worth doing so.

• Who is the defendant? In addition to identifying the correct defendant you must ensure that he is sued in the correct capacity, whether it be as individual, partnership or a limited company.
• Where is the defendant? Such information is required to ensure that the proceedings can be served effectivley.
• Will the defendant be able to pay any judgment? There is little point in suing an indicidual defendant who is on the verge of bankruptcy or a company about…