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  • LIMITATION IN LITIGATION: KNOW YOUR LIMITS

    Posted on: July 25, 2019

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    What is a limitation date?

    A limitation period is the period of time within which a party to a contract or a party who has suffered damages as a result of another party’s conduct, must bring a claim. 

    The Limitation Act 1980 sets out the applicable time limits depending on the type of claim being made. It is important to be aware of these time limits if you are bringing or defending a claim.

    What happens if I miss my limitation date?

    One of the first questions which must be asked when considering the route of litigation which can be time consuming and costly, is whether the claim is time-barred.

    If the limitation period has expired then the claim will be irreversibly time-barred unless an exception under section 14 Limitation Act or section 32 Limitation Act applies.

    The time bar may apply even where your case has strong merits based on the facts.

    Where the limitation has expired, the Defendant has a complete defence to the claim. It is for the Defendant to plead limitation as a defence and the burden will then be on the Claimant to prove that time has not expired.

    Time limits for different types of claims

    CONTRACT

    6 years from the date the cause of action accrued (section 5 of the Limitation Act 1980)

    TORT

    6 years from the date the cause of action accrued and/or the loss was suffered (section 2 of the Limitation Act 1980)

    PROFESSIONAL NEGLIGENCE

    If based on contract, 6 years from the date of the breach of contract (section 5 of the Limitation Act 1980)

    If based on the common law tort of negligence, 6 years from the date the Claimant suffered a financial loss as a result of a negligent professional (section 2 of the Limitation Act 1980)

    COSTS

    Detailed assessment

    3 months after:

    • the date of a judgment awarding costs;
    • service of notice of discontinuance under rule CPR 38.3;
    • the date when the right to costs arose (CPR 47.7)

    Assessment of solicitor’s bill

    An absolute right to an assessment arises within 1 month of receipt of the bill (Section 70 Solicitors Act)

    This time limit is extended to 12 months if special circumstances exist as to why you didn’t challenge the bill within a month (Section 70 Solicitors Act)

    TAX

    If you have received a penalty, unless otherwise stated you must appeal, within 30 days of the date of the penalty notice.

    HMRC operate very strict time limits and you may lose your right to challenge a penalty with HMRC or in the Tribunal if you submit an appeal out of time.

    Our tax team can advise on challenges to HMRC and appeals in the Tax Tribunal.

    JUDICIAL REVIEW

    The claim form must be filed promptly and in any event not later than 3 months after the ground to make the claim first arose (CPR 54.4(1))

    It is important to check time limits carefully as there are shorter time limits for claims such as certain planning judicial review decisions need to be commenced within 6 weeks and procurement decisions within 30 days (CPR 54.5)

    ENFORCING JUDGMENTS

    6 years from the date on which the judgment became enforceable (Section 24 of the Limitation Act 1980)

    PROPERTY

    Action to recover land: 12 years from the date the cause of action accrued (Section 15 of the Limitation Act 1980)

    Action to recover rent: 6 years from the date the rent arrears became due (Section 19 of the Limitation Act 1980)

    Action to recover proceeds of sale of land: 12 years from the date the right to receive the money accrued (Section 20 Limitation Act 1980)

    If you have a landlord-tenant dispute or a complaint against an individual or firm who advised you in a property transaction, our property litigation team can assist.

    EMPLOYMENT

    Employee’s contract claim: 3 months from the effective date of termination (Employment Tribunals Extension of Jurisdiction Order 1994)

    Unfair Dismissal: 3 months from the effective date of termination or if there is no termination, the last day on which the employee worked (Section 111 Employment Rights Act 1996)

    Discrimination and victimisation: 3 months starting with the date of the act to which the complaint relates or such other period as the Employment Tribunal thinks is “just and equitable” (section 123 Equality Act 2010)

    If you have been unfairly dismissed, discriminated against in the workplace or have any other dispute against your employer and would like advice on bringing a claim in the Employment Tribunal, our employment team can assist.

    DEFAMATION

    1 year from the date of the defamatory publication or when the claimant became aware of the publication of the defamatory statement (Section 4A Limitation Act 1980)

    Where material is online, and continues to be published online, the time will start to run from the date the material was first published.

    I was unaware I had a claim

    Date of knowledge

    Section 14 of the Limitation Act 1980 provides for two alternative start dates for negligence claims:

    (1) 6 years from the date the cause of action accrues i.e. when the damage occurs; or

    (2) 3 years from the “earliest date on which the Claimant had both the knowledge required for bringing an claim for damages in respect of the relevant damage and a right to bring such a claim.

    For the reasons above, it is vital to seek legal advice as soon as you become aware of a potential claim you have against a Defendant.

    Deliberate concealment

    Section 32 of the Limitation Act 1980 states that “any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the Defendant” the 6 year period for bringing a claim does not start until the Claimant has discovered the concealment, or could have done so with reasonable diligence.

    The term “deliberate” means that the fact has been concealed by a positive act of concealment or omission or withholding of relevant information.

    This means the Defendant must have known that he acted in breach of duty before he can be accused of deliberate concealment. This is a difficult hurdle to overcome and it is important you seek specialist legal advice on the same.

    Our team of carefully selected solicitors and barristers, specialising in financial services litigation and professional negligence have advised many clients in deliberate concealment cases against well known financial institutions in relation to mis-selling of complex financial products.

    Fraud

    Section 32(1)(c) provides for the limitation period to be extended where the action being brought “is based upon the fraud of the defendant”.

    The period of limitation shall not begin to run until the Claimant has discovered the fraud or could with reasonable diligence have discovered it

    Mistake

    Section 32(1)(c) provides for the limitation period to be extended where the action being brought “is for relief from the consequences of a mistake“.

    the period of limitation shall not begin to run until the Claimant has discovered the mistake (as the case may be) or could with reasonable diligence have discovered it

    My limitation date is approaching: What can I do to protect my position?

    Your legal rights may be subject to limitation and thereby irreversibly time-barred if you fail to take legal action or defend a legal claim in time. Therefore you should not delay in seeking legal advice.

    Entering into a standstill agreement

    A standstill agreement is a contract and subject to the same rules as other contacts. The purpose of such agreements is to extend or suspend a limitation period.

    Before a claim is issued, the parties should use reasonable endeavours to engage in pre-action correspondence to see if they can resolve the dispute, in compliance with pre-action protocols.

    A standstill agreement, if one can be agreed, can buy time for both parties. The parties will agree in written terms to stop the clock in order to engage in pre-action correspondence or settlement.

    Issuing a protective claim form

    In the event the parties cannot agree a standstill agreement, or negotiations are ongoing between the parties, you may need to issue a protective claim form if there is a risk that your claim will be time-barred pursuant to any of the time limits above.

    The period of limitation stops when the claimant issues proceedings and the critical date is issue, not service. The Claimant will then have four months to serve the Claim Form.

    The Court will seal the claim form with the date the claim form was received, reflecting your compliance with the relevant time limits. It is important to note the Court closing times for issuing a claim as most Courts will close at 4pm, therefore your claim form must make it to a court clerk or be received by the Court before then.

    Where possible, issuing a claim form at least one business day before the date of limitation may avoid any administrative or human error which may lead to your claim becoming time barred.

    My solicitor or adviser failed to advise me about time limits

    It is crucial for practitioners to consider limitation issues as soon as instructed in order to prevent the possibility of a claim being time-barred.

    If you have been inadequately or negligently advised by a solicitor, barrister or any other professional adviser in relation to a potential claim, then you may be able to recover any losses in a claim for professional negligence against the firm or individual providing the advice.

    Our professional negligence team can assist by assessing your case and advising you on the next steps.

    Initial consultation with Litigation Lawyer

    Our City of London litigation solicitors and barristers provide bespoke legal advice. We invite you to contact us so one of our legal team can assess your dispute. We can subsequently provide urgent help, advice or representation from our expert team of leading dispute resolution lawyers. Call or email us to start the process of instructing us; our litigation team are waiting to help.

    To contact a leading London Litigation Lawyer  02071830529
    Email us on: 
    litigation-solicitors-london@lexlaw.co.uk

    The articles published on this website, current at the date of posting, are for reference purposes only and do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action.

    Call us on ☎ 02071830529 or email us on for more information about the legal services we provide. Our team of London lawyers are based in Middle Temple adjacent to the Royal Courts of Justice. We are committed to providing professional and specialist legal advice.

     
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