Disapplying the Limitation Act

Two recent cases focus on the court’s discretion to disapply the Limitation Act 1980 (the Act) and allow a claim to proceed that would otherwise be time barred.

A claim for compensation for personal injury negligently caused is subject to the Act. The general rule is that the “limitation period” for compensation claims relating to injury is three years. Subject to some caveats (see below), the limitation period is the time within which a claimant or their representative (for example, a parent of a negligently injured child) may start a legal claim for compensation. If a claimant does not issue court proceedings within the limitation period, then, subject to the discretion of the court to disapply the limitation period, the opportunity to claim compensation is lost forever.

Why bar an otherwise good claim?

The law likes certainty. Public policy requires that even where a wrong has been done to another, there should be a period after which the alleged wrongdoer is free from the threat of a claim. So we have the Act.

The Limitation Period: when does the three year limitation period start?

Generally, it starts on the date the injury is caused. In medical malpractice cases, if a surgeon negligently nicks a blood vessel or severs a nerve, that will have a reasonably obvious consequence. But in the case of a misdiagnosis or delayed diagnosis, or a slow bleed either from a cut during surgery or over anticoagulation, the breach of duty happened at the point of misdiagnosis or actual injury but the negligence may be a continuing breach of duty up to the point that it is discovered, or could have been discovered by reasonable inquiry.

To deal with this issue of latent problems or insufficient factual information, the starting date for calculating the three year limitation period is the earliest date upon which the injured claimant first had the knowledge, which he might reasonably have been expected to acquire, necessary to bring a legal action. The claimant must therefore have known the material facts, have known that the injury was serious enough to investigate with a view to issuing legal proceedings and must have known the identity of the potential parties to the action. This knowledge is required to start the limitation clock running, and if any part of this knowledge is missing, the limitation period will not begin.

In essence the three year period does not start to run until the claimant finds out about the problem and who the defendant is. In some cases this can be many years after the injury arose.

Exceptions and the court’s discretion

There are exceptions to the general three year rule which can stop or delay time running:

• The limitation period does not start to run for children until they reach the age of 18 years, so the limitation period expires on their 21st birthday.
• People who lack capacity (however caused) may be able to issue proceedings at any time, as in severe cases, the three year period may never start to run. The limitation period may start to run if mental capacity returns.

But the court has a discretion to disapply the limitation period. A limitation defence does not arise until it is pleaded by a defendant so a claimant can issue a claim, knowing that it appears time barred, to see if a limitation defence is pleaded, and then decide whether to apply to the court to disapply the limitation period.

The court has to balance the prejudice to the defendant in allowing a clamant to bring a claim that is otherwise time barred, taking into account the reasons for the delay and the availability and weight of evidence in support of the claim. Essentially, if the claim looks viable and is not speculative, and assuming it is still possible to have a fair trial (if records and witnesses are available), the court may exercise its discretion and disapply the limitation period.

In Nicholas v Ministry of Defence (2013) (the full judgment is here the court exercised its discretion to disapply the limitation period where the claim was a good one, and liability (subject to the issue of limitation being resolved) was admitted.

Contrast that with Collins v Secretary of State for Business Innovation and Skills (2013) (the full judgment is here, an asbestosis case, where the evidence was sketchy and unreliable and real prejudice would attend the defendant if the limitation period was disapplied. The case was dismissed.

Conclusions

There may be reasons not to rely on what appears a limitation defence. There may be good reasons for the delay, a fair trial can still take place, and the claimant may ask the court to disapply the limitation period. If successful, the defendant will pay the costs of that application, which could be significant. It is a question to consider carefully, with expert legal input.