Limitation in litigation – a reminder

Limitation periods in litigation can seem simple at the outset but are definitely not something you want to be caught out by! Continue reading for a brief overview of the relevant issues to consider in different types of claims.

Limitation periods are set in the Limitation Act 1980 (the Act). Whilst the rules themselves are relatively straightforward, applying them can be more complicated. Limitation periods can cause significant problems for claimants because the Court will have little patience for claimants who have missed the window in which to bring a claim. Claims which are not brought before the relevant deadline will be time barred and cannot be pursued, however strong the underlying merits may be. To avoid such problems, it is crucial to establish when any relevant limitation period may expire at the outset.

What are the limitation periods?

• Under section 5 of the Act, for actions founded on a simple contract, a claimant has six years from the date of the breach of contract within which to bring a claim. In the case of a deed, the period is extended to 12 years.
  
  
• Likewise in tort (also including claims in deceit), section 2 sets out that a claimant has six years beginning on the date the cause of action accrued. For example, in relation to professional negligence this will be six years from the date on which the damage or loss is suffered.
  
  
• In the case of claims in negligence, the six-year period is subject to section 14A of the Act, which extends the primary limitation period by three years if the claimant does not have knowledge of all material facts at the time the cause of action accrued. In such a case, the limitation period is the later of either:
  
  - six years from when the cause of action accrued; or
  
  - three years from the date when the claimant knows or ought to have known about the claim.

• If a claimant relies on the extension in section 14A, they should be aware that section 14B of the Act imposes a longstop period of 15 years from the date of the negligent act or omission in question, even if the claimant did not have the requisite knowledge at all within that period.
  
  
• Section 32 of the Act can also extend the relevant limitation period in cases of fraud or concealment. In such cases, the period of limitation does not begin to run at all until a claimant has discovered the fraud or concealment, or could have reasonably discovered it. The primary six-year limitation period will begin to run at that point.
  
  
• Personal injury claims (section 11) differ – the limitation period is three years from the later of (1) the date of the negligent act which causes the injury and (2) the date of knowledge of the person injured (with some exceptions, for example in relation to children, mental incapacity or if the injured person dies within the three year period).
  
  
• Defamation claims must be brought within one year from the defamatory statement being published (section 4A).

If a claimant has concurrent actions ie in contract and tort, he or she may be able to choose which claim to pursue, even if the reason is because the limitation period for one of the claims has expired. Parties are also free to agree a different limitation period than that prescribed by legislation, either in a contract before any dispute arises or once a dispute is known, by way of a so-called limitation standstill agreement.

Whilst it is tempting for a defendant to consider himself or herself “off the hook” once the primary limitation period has passed, it is important to bear in mind that the step a claimant must take within that period is to issue proceedings. Once a claim form has been issued the claimant has a further four months (or six months if the defendant is outside the jurisdiction) within which to serve that claim on the defendant. In the case of negligence claims, the limitation period could also be extended longer than the defendant expects under clause 14A of the Act. It is therefore possible that a defendant may not become aware of the claim until some months after the expiry of the relevant limitation period. This could be particularly relevant for defendants such as professional advisors, whose Professional Indemnity Insurance may be held on a “claims notified basis”, which means that the policy only provides cover for claims notified to the defendant within the policy period. It is important for policyholders to be wary of any gaps in cover, especially if there is a change in insurer.

If you require further information about anything covered in this briefing, please contact Blue Elliott, Beth Balkham, or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, February 2021