Limitation periods for negligence claims
We’ve all heard the saying “better late than never” but the same cannot always be said when it comes to bringing legal claims. Strict time limits apply for the commencement of legal proceedings and all too often the innocent party is told they have left it too late to bring a claim and are therefore unable to remedy their situation.
Generally, in a claim for damages for the tort of negligence, claimants must bring a claim within 6 years from the date they suffer loss caused by the negligent act, or risk being out of time. As ever there are exceptions, such as claims involving personal injury, where a 3 year time limit applies. However, complications can arise when determining when the time period should start to run where, for example, the date of negligence differs from the date of actual loss.
Making a professional negligence claim in time
Now, in many cases, the date of the negligent act and loss will be clear. For example, if you are involved in a road traffic accident then the clock will start ticking from the day of the accident because injury arose at almost the same moment as the negligence. But what if the circumstances aren’t so clear cut? If you are bringing a professional negligence claim, for example, the negligent act may not come to light for many years, sometimes more than 6 years from the negligent act. If an owner of a property tries selling it 10 years after he bought it but finds there was a problem with the earlier conveyance, he is outside the 6 year limitation period as the negligence (and loss) occurred 10 years previously. In those circumstances, the court would consider whether a reasonable person ought to discovered or appreciated the loss sooner.
If the initial 6 year period has already passed, then there is a second possible option available to clients which is referred to as the “date of knowledge.” In essence, this means that the client will have 3 years from the date on which they knew about the negligent act, or a reasonable person would have known about it, to bring a claim.
But what if the person who committed the negligent act deliberately conceals it, knowing that it won’t be discovered for some time? This was a matter recently considered by the courts, and is not usually something that can be established very easily. The facts that have been concealed must be truly necessary ingredients of the claim, not merely improve prospects of success. Section 32 of the Limitation Act sets down a number of hurdles that must be overcome if the court is to exercise its discretion to extend the limitation period and keep possible defendants “on the hook” for an increased period of time.
Another headache is that it is not always clear cut working out the date the claimant first suffered actual loss. For example, a purchaser of property is contractually obliged to complete on the purchase from the date of exchange of contracts, and time will run for limitation from the date of exchange of contracts, which may differ from the date the full purchase price was paid. Thus, Claimants have been found out of time in bringing a claim against solicitors for failing to advise as to a right of way, as they have calculated limitation from the date the full monies were paid for the property instead of the date contracts were exchanged.
Taking early legal advice
If you think you have a potential claim then you should seek legal advice without delay, to prevent your claim becoming statute barred and maximise your chances of success. Ignorance is not always bliss and it can be difficult to persuade the courts to exercise their discretion, particularly if the negligent act could have been discovered sooner with reasonable investigations. Delays in bringing legal actions can lead to the guilty party not been held to account over their actions and the innocent party being left without compensation, something we all want to avoid!
Our team are experienced in all sorts of professional negligence claims and can advise whether you are within the time frames for bringing a claim. If the initial time period has expired, we can advise as to the likelihood of a later date of knowledge, and if the court is likely to exercise its discretion.
By Maria Kalirai.
