There are strict time limits for bringing legal action. One of the first matters to consider when investigating a claim is whether you are still within time to bring a claim. This is known as “Limitation”. If your solicitor misses a limitation date and you are no longer entitled to pursue your claim, then you may well be able to pursue a professional negligence claim against your legal adviser for the loss you have suffered in being able to pursue your original claim.
When does time start to run for your claim?
The limitation clock usually starts ticking on the day on which your right to a claim starts.
Professional negligence claims can arise where a professional has a contractual duty and/or statutory duty and/or tortious duty to you.
Whilst we do not propose to set out each and every limitation period for each and every type of claim, broadly, most contractual or tortious claims have the following limitation periods (please note these limitation periods do not apply to all claims, including personal injury claims):
- In most contractual claims, you will have six years from the date of the breach of contract.
- In most tortious claims you will have six years from the day on which the cause of action occurs, by that we mean, you will have 6 years from the date that the damage is suffered.
- In tortious claims, you may also have three years from the date of knowledge.
A professional negligence claim in contract will arise where a professional breaches specific express or implied terms in a contract between you and the professional. However, even where a contract does not exist, it may be possible for you to bring a claim against a professional in tort. A claim in tort will arise where a professional fails to perform their responsibilities to the required standard or breaches a duty of care. For example, a financial adviser may have failed to provide you with proper advice on tax relief, or a surveyor may fail to identify significant structural problems with a property.
For limitation purposes, a claim is “brought” when the court receives a claim form, not the date the claim is issued.
What can a defendant do if you have missed the limitation period?
If the limitation period has expired, the defendant, is likely to have a comprehensive defence to a claim (unless a valid exception can be shown such as concealment) if a defendant can show that your claim is out of time, they may chose to:
- Make an application under the Civil Procedure Rules (“CPR”) to have your claim struck out.
- File a defence to your claim and then seek, normally at case-management stage, to have the limitation point tried as a preliminary issue, with a view to obtaining summary judgment.
If the defendant pleads to the defence of limitation, the burden is on you to prove that time has not expired.
Before issuing a claim at court, parties will need to comply with any relevant Pre-Action Protocol set out in the Civil Procedure Rules. The protocols are a set of steps that must be followed before a claim is issued at court. The aim of the protocols is to notify all parties involved of the potential claim, the allegations made and to allow for a response, identifying as many issues as possible with the objective to attempt to resolve the issues without the need for court involvement.
If there is insufficient time to comply with the relevant protocol due to a looming limitation date, a claimant should immediately contact the defendant to see if they will agree to enter into a standstill agreement. A standstill agreement is an agreement between the parties that time will effectively stand still for the purposes of limitation, whilst the parties investigate the matter further. The claimant should then look to comply with any relevant protocol during the standstill period and before issuing proceedings.