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Don’t Leave it Too Late

Monday, Jun-21, 2021

Don't Leave it Too Late

Will Bates

How long can you leave it before you make a claim? Solicitor Will Bates looks at the different limitation periods and the pitfalls of leaving it too late.

You may already be aware (and you certainly will be if you are a John Grisham fan) that the law requires legal claims to be brought within a certain period of time.

The period a claimant has to issue a claim is known as the “limitation period”. If you, as the potential claimant, do not issue the claim before this period ends, the defendant will have a complete defence to the claim. Limitation periods were introduced on public policy grounds, on the basis that nobody should have the threat of legal proceedings hanging over them indefinitely; claimants should also be encouraged to bring claims as soon as possible, particularly as evidence will often become less reliable and more difficult to obtain as time passes.

Limitation periods are a complex and highly technical area of law. The limitation period in any case will depend on the circumstances in the case and on what cause of action the claim is based. Different causes of action have different limitation periods, prescribed by legislation. Many common causes of action have a six-year limitation period. However, some limitation periods are much shorter and, for example, a claim for defamation must be issued within one year of the date on which the cause of action arose.

Despite the above, there are provisions to protect potential claimants who were not aware that they had a potential claim until a later date. For example, a potential claimant has six years to bring a claim for professional negligence from the date on which the cause of action accrued. However, if they only acquired the knowledge required for bringing the action at a later date, they will have three years from the date on which they acquired that knowledge to issue a claim (subject as well to a 15 year long-stop).

A key warning is that as a potential claimant you may acquire the knowledge required for bringing an action much sooner than you expect. The required knowledge to commence time running for reckoning the limitation period can include “constructive knowledge” (i.e. the knowledge which you might reasonably have been expected to acquire from facts observable or ascertainable by you and also from facts ascertainable by you with the help of appropriate expert advice). If you become aware of facts or circumstances which may give rise to a potential claim but fail to investigate it further, any claim you may have had could become time barred. Therefore, it pays to seek independent legal advice as soon as possible.

A potential claimant cannot, for example, discover an issue which arose during their purchase of a property and simply wait until they wish to sell the property to deal with the issue. Limitation periods commence as soon as the cause of action accrues; the total loss which is suffered later does not always need to be ascertained to commence time running.

The overriding point is that if you are aware of factual circumstances that may give you a potential claim, it is important to act as soon as possible. Independent legal advice should be sought as to when the cause of action arose, the limitation period applicable to the potential claim and the likely date by which the potential claim must be issued. It should not be left to the last minute to issue court proceedings as that can place you at a disadvantage. In the worst-case scenario, valid claims can no longer be brought simply because the potential claimant delayed seeking legal advice.

We are always happy to help if you believe there are circumstances which may give you a potential claim.

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