When considering whether to bring a clinical negligence claim, it is vital to keep in mind the time period within which it can be made. People are often unaware of or get caught out by the strict limits – beyond which the claim is time barred. In particular, individuals who have suffered serious injuries can find that by the time they feel up to looking into a claim, or recognise the need to do so because of ongoing disability and financial impact, it may already be too late. Equally, people can often think that a claim is ‘out of time’ when in fact it may not be. It is therefore important that people seek specialist legal advice well in advance of the deadline.
A maximum period of three years was set out for claims of this type in the Limitation Act 1980. This act provides the deadlines within which a claim made in the UK must be issued at court. People are often mistaken in thinking that the deadline is in relation to when they start looking at making a claim – or sometimes that they must have concluded the claim by this time. Different time periods also apply to cases where the injury does not happen in the UK.
If the limitation period is missed, the claim is statute barred and if court proceedings are issued after this date, the defendant will argue the expiry of limitation as a defence to the entire case. An application can be made to the court for permission for the claim to be issued or continue out of time – however, the circumstances when this is allowed are limited and the judge must be persuaded there is a good reason why proceedings were not issued within the necessary timescale. The judge must also be convinced that the defendant will not be prejudiced by such permission being given. There is therefore potential to look at a claim after the expiry of the time period but significant risks are involved.
Some particular exceptions exist where the limitation period does not apply. For children who sustain an injury while they are under the age of 18, the three year period does not start to run until their eighteenth birthday. For an individual who is deemed to lack mental capacity in the context of being able to conduct litigation, the three year period does not come into effect unless and until they regain capacity – so someone with a serious brain injury may never be constrained by a time limit. The other exception that can apply is if the individual was not aware and would not have been reasonably expected to be aware that their injury was caused by the negligence of another party and/or that they had in fact sustained a significant injury. These situations are very fact specific but in certain circumstances the three year period will not start to run until they were or could reasonably have been aware of the potential negligence/injury.