Is It Time To Talk About Limitation?

Introduction

There are specific time periods for bringing actions in court in Scottish and English law. A claimant may lose the right to obtain damages if he/she does not bring proceedings within certain prescribed periods.  Different rules apply north and south of the border.

The purpose of the rules is to ensure that a wrongdoer is not sued in respect of a stale claim and claimants are encouraged to proceed without delay. It allows a potential defender/defendant to feel confident after a certain period of time that potential claims against them are closed [1]. It is thought that where there is delay in bringing proceedings the quality of justice diminishes. Witnesses may have died memories may have dimmed and relevant documents lost or destroyed.

Legal Provisions

The modern law in Scotland is found in The Prescription and Limitation (Scotland) Act 1973. In English law the Limitation Act 1980 applies. Both Acts provide the defender/defendant with a defence that an action has not been raised within the appropriate period of time and therefore should not be allowed to proceed. If the defence is not pled in the case the claim can continue to judgement [2].

The Scottish and English law principles are not identical and there are different time periods for different types of actions in both jurisdictions. This post deals with the basic principles found in the Acts and a later post will deal with specific provisions in respect of product liability cases under the statute.

Prescription and Limitation of actions

Lawyers refer to  “prescription” and “limitation” of actions and these are different concepts. “Prescription” is where a right is extinguished for ever. There is no ability to argue that the court hear the action if it has prescribed. “Limitation” is where the right exists but no action can be brought in court to enforce it unless a defender elects not to take the plea or some of the exceptions below are applied.

What is a personal injury?

 “Personal injuries” are defined in the Scottish Act [3] to include any disease and any impairment of a person’s physical or mental condition. Personal injury actions are considered in a different way from pure economic loss cases. The English Act makes similar provisions in s38(1) in relation to what is defined as a personal injury.

The limitation period for personal injury actions in Scottish law

The Scottish Act provides that an action must be raised in court, (not completed) within three  years of the personal injury having occurred. In Scotland a warrant for service of the court document requires to be obtained from the court and the action served upon the defender within 3 years from the date of any accident.

The limitation period for personal injury actions in English law

In English law in computing the three-year period the date on which the accident occurred is not as important. In Marren v Dawson Bentley & Co Ltd [4] it was provided that the limitation period starts to run on the day after the cause of action accrues.

In St Helens MBC v Barnes [5] the Court of Appeal confirmed that if the claim form is delivered to the court before the expiry of the limitation period, but the court issues the claim form after the expiry of the limitation period the action is still brought within the limitation period. If the court office is closed for the whole of the last day of the period it is extended until the next day on which the court office is open [6]. Once the claim form is issued it must be served within 4 months of the date of issue.

The English provisions are more generous than the Scottish provisions and English Solicitors bringing actions in Scotland must be aware of the difference.

What are the factors relevant to starting the three-year period in Scottish law?

The Scottish Act provides for a range of possible starting points for the commencement of the three- year period. If at any time during the period a person is under a legal disability it must be remembered that this period is not included in the counting.

1. The first possible starting date is the date on which the injury occurred. This means that a man who falls in the street and sustains injury on 10/01/2020 has until 10/01/2023 to bring an action in court and if he does not do so he is time-barred.

2. If the act or omission is a continuing one, the date used for starting the period is the date upon which the continuing harm ceased. This is dealt with below.

3. If the claimant was unaware of facts set out in s17(2) the date may also be extended to take account of that lack of knowledge. This is deal with below.

4. The court will also apply a constructive knowledge test which is the date upon which in the opinion of the court it was reasonably practicable for the claimant to be aware of these facts.

What are the relevant facts in Scottish law?

In deciding on what date there has been awareness the court is interested in matters of fact.

1. Seriousness of the injuries.
The injury should be serious enough to justify raising an action

2. Attribution of injuries to an act or omission.
For the time to run the claimant must actually or constructively be aware that the injuries are attributable in whole or in part to an act or omission

A Scottish court may take a date earlier than when a claimant says they had knowledge applying a constructive test and looking at when it would have been reasonably practicable for the claimant to have had knowledge. It is suggested that the proper question to ask applying a mixed objective/subjective approach is when would it have been reasonably practicable for the claimant to be aware of the statutory facts as set out in 17(2)(b) of the Act [7].

In Scottish law it has been accepted that awareness does not require certainty but it does need more than mere knowledge of possibilities [8]. In the case of Young v Borders Health Board the court found the claim to be time-barred and also the judge refused to exercise his discretion to allow the action to proceed even though time barred. The claimant in this case attended hospital with sore leg and was initially told that she had a DVT when in fact she had compartment syndrome and necrotising fasciitis and nearly lost her leg. She knew the correct diagnosis by the time of discharge. She had drafted a complaint letter and accepted that she knew there had been something wrong with her care.  She thought there had been a misdiagnosis. It was held that this did constitute awareness of the key facts.

Continuing act or omission

If there is a continuing wrongful act or omission in both Scottish and English law the period does not commence until the wrongful omission has ceased. This usually applies in cases where claimant suffers personal injury after continued exposure to continuing harm such as noise, or asbestos but it may also cover continuing negligent medical treatment.

There was a case where it was said that a doctor’s failure in continuing to prescribe a drug if found to be negligent might defer commencement of the three-year period until such time as the prescription stops [9]. If there is a continuing omission there is no requirement to assess what the claimant knew or didn’t know.

Commencement of the three-year period in English law

The knowledge may be actual or constructive in terms of s14(3). It is for the defendants to establish constructive knowledge on balance of probabilities. The constructive knowledge provisions are seen as an important part of the Limitation Act to ensure that the right balance was truck between achieving fairness for claimants and avoiding stale claims. It has been suggested it may be reasonable to delay seeking legal advice where a claimant has been receiving treatment and does not wish to sour the relationship with treating doctors. It may also be relevant that a claimant has limited resources available by which to seek advice.

What are the factors relevant to starting the three-year period in English law?

In English law the basic scheme provides for a three-year limitation period which runs from either the date on which the cause of action accrued, or if later the date of knowledge of the existence of a cause of action [10]. The claimants knowledge may be actual or constructive.

s14(1) references a claimant’s date of knowledge of the following facts:

1. That the injury in question was significant; and

2. That the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and

3. The identity of the defendant; and

4. 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 a defendant

If the claimant does not have the knowledge specified in any of these paragraphs then they do not have knowledge for the purpose of staring the limitation period running. S14(1) is exhaustive [11].

There are two aspects to determining whether the claimant had the relevant knowledge for the purpose of s14 in English law. The first is what the claimant must know as set out in s14(1) above. The second aspect when looking at “knowledge” is the degree of conviction with which a claimant must hold a belief about relevant facts. Knowledge depends on the acquisition of accurate information, but the quality and quantity of information required before claiming to “know” something as a “fact” will vary from person to person. The point at which information becomes knowledge of a fact is highly subjective.

In Nash v Eli Lilly & Co [12] in which the claimants said that they had suffered adverse reactions to the drug Opren the Court of Appeal held that “knowledge” is a condition of mind which imports a degree of certainty. This is a two-stage process involving the nature of the information received and evaluation of that information.

In North Essex District Health Authority v Spargo [13] the court set out a number of helpful propositions on the meaning of “knowledge” for the purposes of s14 and it has been suggested that the statement of Brooke LJ are binding rules [14]. However, in AB v Ministry of Defence [15]  it was suggested that it was unhelpful to treat this as if this was a statutory test.

In the case of AB v Ministry of Defence [16] there was a claim by veteran servicemen who alleged that they had been exposed to radiation during the testing of thermonuclear devices in the 1950’s and that the radiation was responsible for the various medical conditions they had suffered. Most of the claims were issued in 2005 but they argued that they did not acquire knowledge for the purposes of s14(1) until they received an expert report in 2007 which provided evidence of exposure to radiation. It was argued against them that there was any link between the exposure and injury but also that they had knowledge in terms of s14(1)(b) long before the receipt of the expert report.

The Supreme Court was divided sharply on the question of what would suffice as knowledge for the purposes of s14. The majority of the court held that the claims were statute-barred since it was a legal impossibility for a claimant to lack knowledge of attribution for the purpose of s14 (1) at a time after the date of issue of the claim.

The position may be different where a claimant merely has a suspicion that their damage was caused by an act or omission of a defendant. In Halford v Brookes [17] a distinction was made between a vague unsupported suspicion and a reasonable belief. In Stephen v Riverside Health Authority [18] it was found that even a deep-rooted suspicion on the part of a claimant did not amount to knowledge when she had been assured by several highly qualified doctors that the dose of radiation she received was not sufficient to cause her symptoms.

In English law where the claimant thinks that he/she knows the acts and omissions to investigate and is then subsequently found to be wrong they have been held not to have the requisite knowledge if they were ‘barking up the wrong tree’. In Martin v Kaisary (No.2) [19] the claimant initially thought that the post-operative complications experienced were associated with the drug heparin. It was not until he received an expert report that he was told that his cardiac arrest was caused by haemorrhaging from the operation site and he was held to have been barking up the wrong tree.

The claimant must also know that the injury was significant in terms of the English Act. S14(2) provides that the injury is significant if the injury was sufficiently serious enough to justify the instituting of proceedings against the defendant. If any injury initially appears to be trivial but then becomes serious the time does not start to run until the claimant knows that the injury is in fact serious;

Consulting a lawyer/expert

Where a claimant seeks legal advice normally the Solicitor will ask the date of the accident and also check that date is correct with refence to medical records or accident reports. In Scotland where a claimant consults a lawyer this would tend to suggest awareness although it is open to argument and there would need to be investigation into why the claimant sought legal advice and what the state of knowledge was at that time. In Scotland the instruction of an expert is likely also to suggest the requisite degree of knowledge.

In English law  in North Essex District Health Authority v Spargo [20] it was suggested that going to a lawyer would suggest the requisite degree of knowledge. However, in Sniezek v Bundy (Letchworth) Ltd [21] the Court of Appeal said that there was nothing in the Limitation Act to suggest that any special consequences must or should be deemed to arise from the claimant seeking legal advice. The question remained the individual’s state of knowledge of the relevant facts, rather than the lawyers’ opinion on prospects in any legal proceedings.

In England consulting an expert is not necessarily conclusive that the claimant has the relevant knowledge. In AB v Ministry of Defence [22] Lord Wilson found that consulting an expert is not a conclusive indication that the claimant had the relevant knowledge. The court should have regard to the confidence with which the claimant held the belief, and the reasons for consulting an expert.

Where there has been a death as a result of personal injuries

In English law in an action for loss of dependency under the Fatal Accidents Act 1976 if the death occurred before the expiry of the deceased’s three-year limitation period then a new three-year period commences in favour of the dependants. This period runs from the date of death or the date of the dependants’ knowledge whichever is the later [24].

Equitable discretion-Scotland

In law a Scottish court has what is called an “equitable discretion” in terms of s19A of the Act. This section was inserted by s23a of the Law Reform (Miscellaneous Provisions) (Scotland) 1980 with retrospective effect in response to the decision in McIntyre v Armitage Shanks Ltd [25] where a workman contracted pneumoconiosis and knew all the relevant facts but was advised by his trade union he could not sue and his claim was held to be time barred.

The court can allow an action to proceed even though the three-year period has elapsed. This power is rarely used in practice by the courts. The burden of satisfying the court that it is equitable to allow the action to proceed though time-barred lies with the claimant. Although the burden of proving particular facts lies with the party offering to prove that fact [26].

Unlike the English legislation [27] s19 does not list the factors the court should consider in exercising its discretion. In Carson v Howard Doris Ltd[xxviii] it was suggested that the court should consider (i) the conduct of the claimant (ii) prejudice to the claimant, (iii) prejudice to the defender in the action.

If a claimant wishes to ask the court to exercise its discretion to allow an action to proceed although time-barred a reasonable explanation should be provided for the failure to take action timeously [29]. If in fact the Solicitor has been contacted but has failed to raise an action on time or has given wrong advice on time-bar in Scotland the court is unlikely to exercise its discretion but the claimant may have an action against the Solicitor in negligence.

Equitable discretion-England

In English law the court also has a discretion to allow an action to proceed notwithstanding the expiry of the three-year period in terms of s33 where it is fair and equitable to do so. In Firman v Ellis [30] the Court of Appeal said that the court’s discretion under s33 was unfettered and this was approved by the House of Lords in Thompson v Brown Construction (Ebbw Vale) Ltd [31] and Horton v Sadler [32].

S 33(1) provides that the court may direct that the three-year period specified by ss.11, 11A and 12 shall not apply if it would be equitable to allow the action to proceed having regard to the degree to which (a) those sections prejudice the claimant, (b) the decision to allow the action to proceed would prejudice the defendant.

The court has to balance the degree of prejudice to the claimant caused by the operation of the primary limitation period against the prejudice to the defendant if the action were allowed to proceed. The stronger the claimant’s case is on the merits the greater the prejudice to him, and conversely the weaker his case the less he is prejudiced. If the defendants have a good case on the merits there is probably less prejudice to them in allowing the action to proceed.

It has been stressed by the Court of Appeal and the House of Lords that the court should consider all the circumstances of the case not simply the circumstances identified by s33(3). In Donovan v Gwentoys Ltd [33] it was held that in weighing the degree of prejudice to the defendant the court was entitled to take into account the whole period of delay, including that within the primary limitation period as part of all the circumstances of the case. The delay that is important is the delay between the commencement of the limitation period and notification to the defendant of the claim, rather than the issue of the claim form the object being to bar thoroughly stale claims.

The length of the delay is probably less significant than the reasons for the delay and the effect on the cogency of the evidence and it is usually the effect on the cogency of the evidence that is most significant. The essential question is whether given the passage of time the court can fairly try the claim. Where defendants have had to investigate and prepare to meet another case on liability arising out of the same facts, the cogency of the evidence may not be affected by the delay.

In cases of medical negligence, it may be that information is contained within medical records. In Pearce v Barnett Health Authority [34] it was held that there was no prejudice to the defendants from a delay between 1991 and 1994 in dealing with a case based on events in 1970 which would inevitably turn on the virtually complete medical records. In Hammond v West Lancashire Health Authority [35] the defendants had destroyed the claimant’s X rays and then claimed to have suffered prejudice and the Court of Appeal held that if anything the prejudice was the claimants and upheld the judge’s decision to disapply the limitation period. In Whiston v London SHA [36] the claimant suffered brain damage as a result of lack of oxygen at birth and issued proceedings more than 30 years later. The CTG was missing although the other medical records were available and the court rejected the defenders’ argument that they were prejudiced by the absence of the CTG material.

The defendant’s conduct is also considered to be relevant in deciding whether to exercise discretion in terms of the Act. There is in the Act specific reference to the extent to which the defendant responded to reasonable requests for information and this included conduct of the defendant’s solicitors and insurers.

If a claimant is under a disability at the date at which the cause of action accrued the commencement of the limitation period is postponed until they cease to be under a disability but supervening disability does not stop the time running. 

The claimant’s actions may be relevant in assessing whether the court will exercise its discretion. The general proposition is that if a claimant should act reasonably and promptly once they became aware of the cause of action. The availability of an alternative remedy against another party is a thought to be a highly relevant consideration but it is not conclusive against the exercise of the discretion in the claimant’s favour.

Conclusion

It is important to remember that the legal principles in Scottish and English law have many similarities but there are also important differences. There are factors defined in both statutes whereby the period may be extended. In both jurisdictions the courts have an ability to allow a claimant’s action to proceed though apparently barred by the passage of time subject to a number of important provisions. It is therefore important that potential claimants do seek legal advice if they consider they may have a claim even if that claim occurred many years previously.

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[1] Report of the Committee on Limitation of Actions in Cases of Personal Injury (1962), CMND 1829 para 17; Birkett v James [1978] A.C. 297 at 331

[2] CPR r 16.7; CPR 16PD.13.1; Ronex v John Laing [1983] 1 Q.B. 396 CA

[3] S 22(1)

[4] [1961] 2 Q.B.135

[5] [[2006] EWCA Civ 1372

[6] Pritam Kaur v Russell & Sons Ltd [1973] Q.B.336; Yadly Marketing Co Ltd v Secretary of State for the Home Department [2016] EWCA Civ 1143

[7] Agnew v Scott Lithgow Ltd (No 2) 2003 SC 448; Carnegie v Lord Advocate 2001 SC 802

[8] Lord Hodge, Morrison v ICL Plastics 2014 SC 222 at para 84

[9] Kennedy v Steinberg 1998 S.C. 379

[10] Limitation Act 1980 s11(3) (4)

[11] Dobbie v Medway Health Authority [1994] 1 W.L.R. 1234

[12] [1993]  1 W.L.R. 783

[13] [1997] P.I.Q.R 235 at 242

[14] Corbin v Penfold Metallising Company Ltd [2000] Lloyds Rep.Med 247 at 249, CA

[15] [2012] UKSC 9

[16] [2012] UKSC 9

[17] [1991]  1 W.L.R. 428

[18] [1990] 1 Med.L.R. 261

[19] [2005] EWHC 531 (QB)

[20] [1997] P.I.Q.R. p235

[21] [2000] P.I.Q.R p213

[22] [2012] UKSC 9

[23] s 18 of the Act

[24] Limitation Act 1980 s12,

[25] 1980 SC (HL) 46

[26] B v Murray (No 2) 2005 SLT 982; Donald v Rutherford 1984 SLT 70; AS v Poor Sisters of Nazareth 2008 SC (HL) 146 per Lord Hope of Craighead paras 23 and 25

[27] Limitation Act 1980

[28] 1981 SC 278

[29] Cowan v Toffolo Jackson & Co Ltd 1998 S.L.T. 1000

[30] [1978] Q.B. 886

[31] [1981] 1 W.L.R.744

[32] [2006] UKHL 27

[33] [1990] 1 W.L.R. 472

[34] [1998] P.I.Q.R p39

[35] [1998] Lloyd’s Rep.Med.146

[36] [2010] EWCA Civ 195