Chapter 2: Pre – Action Considerations: Limitation

• Limitation period


  The time period within which a claim must be brought
• If a person attempts to commence proceedings by issuing a claim form after the limitation period has passed, the defendant can raise the passage of the limitation period as a defence to try to have the claim struck out
• Principle behind limitation


  • Ensure a defendant is not prejudiced by having to defend a claim when important evidence may no longer be available or the evidence of witnesses may be less cogent due to the passage of time
• A solicitor who does not check if a claim is statute barred and incurs costs advancing a claim that is statute barred will be deemed negligent and not acting in the client's best interests
• Commonly encountered limitation periods

  • Longstop for latent defects - 15 years
  • Claims for breach of contract - 6 years
  • Most claims in tort - 6 years
  • Claims for personal injury - 3 years
  • Fatal accident claims - 3 years
  • Claims for defamation - 1 year
  • Claims for unfair dismissal - 3 months
  • Judicial review - 3 months
• Date of accrual


  When the relevant tortious act occurs
• Date of knowledge


  The point at which the claimant had knowledge of all the facts establishing all of the essential elements of the claim
• In personal injury claims, the date of knowledge is very often the same as the date of accrual
• In a clinical negligence claim, the negligence may have occurred quite some time before the patient becomes aware that they have been the victim of a medical accident
• Facts required for date of knowledge in clinical negligence claims

  • That the injury was significant
  • That it was attributable in whole or in part to the act or omission alleged to constitute negligence, nuisance, or breach of duty
  • The identity of the defendant
  • If it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant
• Causation is an essential element in the tort of negligence, and the date of knowledge relies on the claimant being aware not only that they have suffered a significant injury, but also that it has arisen from a negligent act or omission of an identified defendant
• Limitation period for claims involving death


  1. Three years from the date of death

  2. Three years from the date of knowledge of the deceased's personal representative
• A claim is statute barred if the injured party died after the three-year limitation period had already expired
• Date of accrual in a contract action


  The date that the breach occurred
• In a case that involves both tort and contract claims, a party may choose to proceed with a claim under whichever is more favourable to their position
• Whilst a contract may have a defects liability period, the general six-year limitation period applicable to simple contracts should still apply
• The Latent Damage Act 1986 introduced an additional limitation period for claims for latent defects, with a longstop limitation period of 15 years from the act or omission alleged to have caused the loss and damage
• Agreed shorter limitation periods in construction contracts would be subject to a reasonableness test under the legal provisions preventing unfair contract terms
• When time starts and stops for limitation purposes


  1. Time starts to run from the day after the date that the cause of action arose

  2. Time ends when the claimant delivers the properly completed claim form to the court office with a request to issue together with the correct fee
• If the limitation period expires on a day when the court office is closed, the action will still be in time if all the relevant documents and fee are lodged with the court office on the next court business day
• It may be possible to alter the name of a defendant after the limitation period has expired if the defendant has been correctly identified but mistakenly named
• If the claimant is a minor, the clock for the limitation period will not start to run until the claimant's 18th birthday
• If the claimant lacks mental capacity at the point of accrual of the cause of action, the clock does not start running until certification that the claimant is of sound mind
• In cases involving fraud or concealment, the limitation period runs from the date when the claimant discovers the fraud or concealment or could have done so with reasonable diligence
• If the claim is for relief from the consequences of a mistake, time does not start to run until the mistake has been discovered or could have been discovered with reasonable diligence