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Don’t leave it too late: the importance of limitation periods in professional negligence claims

What is a limitation period?

A limitation period is the amount of time that you have to bring a Court claim in England and Wales. The Limitation Act 1980 governs the length of limitation periods which vary based on the type of claim that you are attempting to bring to Court. These “baseline” lengths can then be modified further by other pieces of legislation, caselaw, and sometimes at the court’s discretion.

For example, for a claim relating to defamation or malicious falsehood, the “baseline” limitation period under Section 4A of the Limitation Act 1980 is one year from the date on which the cause of action accrued. However, under Section 32A of the Limitation Act 1980, the court has discretion to override the one year time limit, if it would be equitable to do so.

When does the limitation period start?

Generally, limitation runs from the date on which the cause of action accrued. In plain English, this usually refers to when the claim first arose – in other words, from the very first moment that a prospective claimant could have brought a claim.

For some types of claims, this date is easy to calculate. In a straightforward personal injury claim, involving a broken leg arising out of a road traffic accident, for example, the “baseline” limitation period for the claim would begin to run from the moment the unfortunate individual in question had their leg broken.

However, often the calculation of the start of limitation periods is more complex and contentious. A classic example is of someone who hires a cowboy builder to fix their roof in January. The roof subsequently collapses in November, and, through examining the wreckage, it is discovered that the builder was negligent in performing the initial fix. In this case, it is not immediately clear whether limitation should run from January (when the negligent fix happened) or from November (when the homeowner became aware of the negligence). Furthermore, if the collapsing roof injured the homeowner, the situation becomes even more complicated, as there are different rules for limitation periods involving personal injury.

What happens if limitation runs out?

Working out if your claim is still within its limitation period is of vital importance because, if you try to bring a claim to court after its limitation period has expired, then the Defendant can rely on the fact that your claim is “time-barred” as a full defence to your claim.

It is possible to apply to the Court for permission to bring a claim outside of the limitation period, or to extend the limitation period, however such applications vary rarely succeed. There needs to be a very good reason why the claim was not brought earlier.

Limitation and professional negligence

When it comes to advice from professionals, including solicitors and barristers, it can take a long time for problems to come out of the woodwork, so being conscious of limitation periods is essential if you are considering a negligence claim. The “baseline” limitation period for a professional negligence claim, under Section 2 of the Limitation Act 1980, is six years. However, limitation in professional negligence cases is a complex and sometimes unintuitive issue, as demonstrated by the following two recent Court of Appeal cases.

Elliott v Hattens

In Elliott v Hattens [2021] EWCA Civ 720, the Claimant, Ms Elliott, instructed the defendant solicitors in relation to the letting and sub-letting of her property. The defendant solicitors failed to name the guarantors, during the preparation of the lease paperwork, and also failed to advise Ms Elliott to obtain property insurance. The documents were executed in February 2012.

In November 2012, there was a fire at Ms Elliott’s property and she suffered loss because of her lack of insurance and guaranteed rental income.

On 10 April 2018, Ms Elliott commenced proceedings against the defendant solicitors for professional negligence. She believed that her claim was in time because she had suffered loss in November 2012, as a result of the fire, less than six years previously. However, the defendant solicitors claimed that Ms Elliott was time-barred on the basis that her loss had actually occurred in February 2012, more than six years prior to her claim.

The court of first instance agreed with Ms Elliott. However, the defendant solicitors appealed and the Court of Appeal overturned the initial decision, finding that the negligence of the defendant solicitors had immediately resulted in Ms Elliott not obtaining the rights under the lease that she originally sought and had put her at risk of forfeiture. Consequently, the Court found that limitation ran from February 2012 and that Ms Elliott’s claim was out of time. Ms Elliott’s claim subsequently failed.

Sciortino v Beaumont

In Sciortino v Beaumont [2021] EWCA Civ 786, the Claimant instructed the defendant barrister, Mr Beaumont, in respect of appealing an order for the possession and sale of the Claimant’s property. The Defendant was instructed to provide advice on the merits of the appeal claim in April/May 2011 and again in October 2011.

On 25 October 2017, the Claimant commenced proceedings against the defendant barrister on the basis that the two advices given had been negligent.

In the first instance, the Court held that the Claimant’s entire claim was time-barred on the basis that the initial advice was provided more than six years prior to the commencement of proceedings, and that the second advice did not constitute negligence independent enough to constitute a separate claim.

The Court of Appeal, however, overturned the initial decision, holding that each advice constituted separate potential breaches of duty. This meant the second advice from the defendant barrister fell within the allowed time. Consequently, the Claimant could bring a claim for their losses incurred from October 2011 onwards.

Closing thoughts

Limitation is a topic that, on the surface, seems straightforward. However, establishing whether a claim is within its limitation period is exceedingly complicated and fraught with legal pitfalls, as can be seen by considering the findings in Elliott and in in Sciortino. Consequently, it is crucial that potential claimants seek specialist legal advice and act as soon as possible in relation to their potential claims. Unnecessary delays can further muddy the already opaque waters and can lead to perfectly viable claims being lost due to time barring.


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Legal Disclaimer

Articles are intended as an introduction to the topic and do not constitute legal advice.