AVOIDING NEGLIGENCE CLAIMS IN LITIGATION 2: HOW DO YOU MISS THE THREE YEAR LIMITATION PERIOD?
This series looks at avoiding negligence claims in litigation, personal injury litigation in particular. The easiest (and most common) method of a negligence claim is missing the limitation period.
How does anyone miss a three year limitation period?
The basic answer is usually some kind of maladministration. Often a failure of the diary system. Someone has inserted the wrong month, occasionally the wrong year.
Sometimes there is no diary system at all. The date is on the front of the file and the file gets shabby and gets changed, the limitation warning going with the file into the bin.
What causes the problem?
Any file you have taken over can be a time bomb
Be careful with any file you have not had from the outset. Whether it is from inside or outside your firm. Check the limitation date carefully, using original source material (not the previous fee-earner’s notes). The limitation date is now your responsibility. It is no answer that someone else made the mistake.
Never, ever, take the client’s word for it
The reference to “original source material” above is quite deliberate. It is surprising how many clients give their solicitor the wrong day of the accident. Sometimes they are mistaken by months, occasionally years. The scenario that follows is that:
- The “client’s” date is the date recorded for limitation purposes.
- This is never revised once the medical records and other documents come in and show a different date.
- The action (which is usually rushed because the client has not come in immediately after the accident in any event) is issued late in the day.
- “Late in the day” turns out to be more than three years after the accident itself.
Frustratingly the answer was often in the solicitor’s grasp from the moment the medical records were obtained.
Make no assumptions about the date of knowledge
I do not, in this post, intend to deal with the complex case law which surrounds the “date of knowledge”. This requires an article (and probably a series of articles) in itself. Remember the last time this matter was before the Supreme Court the court was split 4:3 on the meaning. For the time of being assume, if there is a date of knowledge issue, that the date of knowledge is the earliest date possible. Or at least don’t assume it is the latest.
Check the medical records
The prudent course of action is to take detailed instructions on the issue from the client. Then check the client’s account against the medical records. It is surprising how often these records can differ from your client’s recollection. Not that the client is being dishonest. However the human memory can be terribly selective. Medical records tend to be more accurate and, in any event, are often preferred by the courts.
Don’t get too close to the edge
Proceedings issued at the end of the limitation period are often issued in a hurry. They are more prone to the issues we will look at in later posts: no capacity; the wrong defendant; wrongly served; incorrectly drafted. These can rapidly become “problem” files with the solicitor trying to catch up with events. Often these are the cases where the claim form is not served promptly. This in itself can be a recipe for disaster.
Do not issue late if you can avoid it. With the pressures that are now on litigators in relation to costs budgeting and case management the ideal situation is to have the case prepared, in full, prior to issue. Clearly this is not possible in many cases, particularly where prognosis remains uncertain. However the pre-action protocol means that the issues between the parties will now be clear well before the expiry of the limitation period. Having the witness statements in place; the pleadings and schedule properly drafted and a clear plan of action, will lead to a much smoother ride.