AVOIDING NEGLIGENCE CLAIMS IN PERSONAL INJURY LITIGATION: A RECAP OF THE FIRST SERIES
As part of the scroll through the “back catalogue” on this blog we are looking at the series from 2013 on avoiding negligence. Remember that this series was written 10 years ago. There may have been some changes since then, however the fundamental point – be very careful around these issues – remains valid.
THE SERIES
AVOIDING NEGLIGENCE : A LAWYER’S GUIDE
“I am writing a series of posts on the topic of “how not to get sued”. This is mainly aimed at personal injury practitioners, however many of the posts relate to procedure and will be of more general interest.
There is surprisingly little guidance given to lawyers on this topic. My interest stems from the fact that part of my own practice relates to dealing with limitation and procedural problems in the course of litigation. The stretches as far back as the “automatic striking out days” and I have maintained an interest in procedural default and limitation problems.
Given that honest, hard-working and extremely able lawyers can make mistakes it seems sensible to have some kind of strategy (or at least a discussion) on avoiding problems. We make a living as litigators because people make mistakes. It cannot be a great source of surprise that mistakes happen within the litigation process itself.”
AVOIDING NEGLIGENCE 1 : THE THREE YEAR LIMITATION PERIOD: HOW DOES ANYONE MISS IT?
“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.”
AVOIDING NEGLIGENCE 2 : NOT EVERY PERSONAL INJURY LIMITATION PERIOD IS THREE YEARS.
“It can come to a shock to some litigators that not every action has a three year limitation period. Some have a two year period and some less than that. I thought this was common knowledge. This was until I gave a lecture last week to a dozen solicitors and no-one in the room knew about the different limitation periods.
Needless to say missing these shorter limitation periods is a fruitful source of negligence claims. In some cases the situation is fatal to the action. Nothing can be done. Any litigator needs to be aware of the situations in which different limitation periods apply.”
AVIATION AND THE REALLY VICIOUS LIMITATION PERIOD : AVOIDING NEGLIGENCE 3
“The purpose of this post is to make you feel really uncomfortable when you are involved with a case that involves aviation, in any way shape or form. Including when your client is injured in an airport. That feeling is far preferable to the problems you will have if you miss a limitation period in these circumstances.
The limitation period here is, as described in the title, vicious. Further the provisions governing air travel have a greater scope than is generally realised”
TROUBLE AT SEA: LIMITATION PERIODS AND WATER TRAVEL: AVOIDING NEGLIGENCE 4
We continue the examination of limitation periods that are not necessarily three years. Accidents that happen at sea, or on water generally, can be subject to different limitation periods and, normally, a two year limitation period applies.
ACCIDENTS ABROAD AND THE FOREIGN LIMITATION PERIODS ACT: AVOIDING NEGLIGENCE CLAIMS 5
“It is easy to assume that every jurisdiction has a limitation period of three years. However when an accident happens abroad the Foreign Limitation Periods Act 1984 provides that the relevant limitation period is the period that prevails in the country where the accident occurred. The English courts may have jurisdiction to hear the matter, however it is the foreign limitation period that applies.”
AVOIDING NEGLIGENCE CLAIMS 6: COMMUNICATIONS WITH THE CLIENT
“Life will be difficult for claimant lawyers under the fixed costs regime. This case indicates that a wholesale reliance upon questionnaires and “tick boxes” is unlikely to represent a sufficient standard. “Personal contact” may well be essential. The lawyer cannot assume that a client understands everything that he or she is sent.”