Know Your Limits

This month we succeeded in striking out two claims because they were not brought within the correct limitation period.

1^st Case success

In the first case the Claimant, Mr E, brought a claim for personal injury following a road traffic accident on 13 November 2018. Liability for the accident was not in dispute.

Unfortunately, Mr E’s solicitors miscalculated the issue fee when the proceedings were initially taken to their local County Court by hand and then they tried on two occasions to issue the claim by emailing the Court (which cannot be done). The proceedings were returned three times. In light of this, the Notice of Issue stated that the Claim Form was received by the Court on 7 January 2022 (i.e. 2 months after the expiry of the 3 year limitation period allowed for under the Limitation Act).

We raised limitation in our Defence and Mr E’s solicitors made an application for a declaration that the primary limitation period had been complied with, or, in the alternative, the Court should exercise its discretion to disapply the primary limitation period. They also attempted to change the name of the Defendant.

The judge disagreed with the Claimant’s application. She noted that nothing was said about what should happen if a Claim Form is submitted with the wrong issue fee. She did not accept that the Claimant having initially sent the Claim Form in time but then having to correct the errors thereafter meant that the Claimant was within the primary limitation period. She was also critical of the fact that the accident was around four years old and there was a medical report from December 2020, and yet the medical evidence was incomplete. The Claimant’s application was dismissed.

2^nd Case Success

In this case, Mrs D brought a claim for personal injury following a road traffic accident on 8 December 2018. The accident happened in England but the Defendant was a Belgian insurance company. Liability for the accident was in dispute.

Mr D’s solicitors took the Claim Form to their local County Court on 6 December 2021 and left the papers in a post-box. As the claim was still not issued in March, a copy of the Claim Form was sent to the CCMCC where the claim was issued on 24 March 2022, more than 3 months after limitation expired.

We raised limitation in our Defence but also noted that the Claimant’s solicitors had not pleaded the direct right of action against the Defendant correctly. The case was eventually listed for a hearing. Two days before the hearing, the Claimant’s solicitors made an application under s33 of the Limitation Act 1980, asking for the primary limitation period to be disapplied and for the claim to be allowed to continue.

At the hearing, our opponent argued that the first set of papers had been delivered on 6 December 2021. The subsequent re-sending was simply a copy. It was the Claim Form “as issued” within the meaning of PD7A. We argued that, not only was the Claim Form issued too late, but it was also a hopeless claim. The Claimant had pleaded a direct right of action under s3 of the European Communities (Right Against Insurers) 2002. However, these regulations only provide a direct right of action in limited circumstances. Indeed, in order to have a direct right of action against an insurer under these regulations, the insurer must have provided a policy insurance in respect of an insured vehicle. Furthermore, the defendant’s insured vehicle must be normally based in the UK. In this case, the vehicle was registered and based in Belgium.

The judge considered it would not be in line with the overriding objective to extend time in respect of a hopeless claim and decided to strike the claim out. However, the judge commented that but for the 2002 Regulations point she would have disapplied the limitation period.

Comment

The law relating to limitation can be complex if you are not familiar with it. For accidents that occur in England, the Limitation Act 1980 gives fixed periods of time for issuing proceedings, depending on the type of claim.

Knowing when the limitation period for bringing a claim begins and when it expires is imperative. The solicitor should carefully diarise the dates and ensure that reminders are in place in the lead up to the expiration date. If the date is missed by a solicitor, it is likely that they have been negligent.

Therefore, it is best practice to ensure that proceedings are started well before the limitation period expires.

If you have any questions at all, please do not hesitate to contact us.

*** Congratulations to Belinda and Lucille on their successes! ***