A SHORT POINT ON CLAIMANTS WITHOUT CAPACITY AND LIMITATION: ONCE A LIMITATION PERIOD STARTS RUNNING IT NEVER STOPS
I was lecturing earlier this week on the issue of disability in personal injury cases. One of the principles of law I was lecturing on proved to be “controversial”, that is it appeared to come as a surprise to many of the people in the audience.
“Once the limitation period has started running it does not stop”
ONCE A LIMITATION PERIOD STARTS IT NEVER STOPS
If you have a client who does not have capacity this does not mean that limitation is not running. The limitation clock can still be running (or even have expired). This is because if the claimant has ever had capacity at any time since the accident then the limitation period has started running. Once the limitation period starts running it does not stop.
Over the break I had people asking “does this mean that limitation is suspended during incapacity then?”. The short answer is “no”. If the claimant was under a disability from the date of the injury onwards then the clock has not started running. However any period of capacity means the limitation period has started. The limitation period is never “suspended” once it starts.
THE PRACTICAL CONSEQUENCES
This has practical significance in that a claimant may well have deteriorated by the time the lawyer seems them, alternatively the disability may be intermittent. A lawyer cannot be certain that the limitation period has not started until there is clear medical evidence that a claimant has not had capacity since the incident complained of.
IS THIS A NEW RULE?
The principle was established in the case of Prideaux -v-Webber (1661) 1 Lev 263. Very few readers will remember the case. It does, however, remain good law.
SOME SAVING GRACES: SECTION 33 OF THE LIMITATION ACT 1980
One of the “hotchpotch” of matters the Court has to consider under Section 33 is 33(3)(d) when considering whether to extend time under the Act.
“(d)the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;”
However at this stage you are having to rely on a discretion. That is never comfortable and often expensive (for the lawyer involved at least).