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Sands of Time: Discretion and limitation

The periods set out in the Limitation Act 1980 are relatively generous. Most civil matters must be brought within six years of the event that triggered the claim and there are a variety of special circumstances that may allow particular types of claims to be brought even later than that, or impose a stricter limit. Debts based on “specialties” – created by a deed, like a mortgage, have a 12-year limitation period. Claims for compensation for injury, on the other hand, have a three year period, but the three years runs from either the date of injury or, alternatively, the date of knowledge of the injury. This last provision is extremely important when claiming for conditions such as industrial injury – for example asbestosis or industrial deafness, where the initial triggering incident may be long past by the time the claimant discovers the condition.

However, once the limitation period is up, this usually means the claimant is out of luck. The courts generally expect a claimant to act with reasonable promptness, and the time limits are intended to give people more than adequate time to make the decision to claim, and to conduct any required research and evidence gathering. If the claimant leaves matters too late then, under most circumstances, the claim cannot be brought no matter how well-merited.

In a few limited areas of litigation, however, the courts retain a residual discretion over such limitation periods, giving a narrow chance of bringing a late claim. Most recently under the legal spotlight, section 33 of the Act permits the court to stretch limitation for claims for personal injury or death where it is equitable to do so. In coming to a decision, judges are expected to consider the length of delay and the reasons for it, and how much that delay will affect the parties’ and witnesses’ ability to provide evidence.

This section was tested recently in the case of Carroll v Chief Constable of Greater Manchester. The claimant was a former undercover policeman exposed to narcotics at work who subsequently became a drug addict, suffered from depression and eventually lost his job and received a criminal conviction. The initial addiction occurred in 2009 and the claimant, after some back and forth, conceded that his knowledge of the issue dated back to this year. The claim was brought in 2013, outside the 3 year period for personal injury claims.

The court considered that, under the circumstances, the delay had not prejudiced the defendant. The police authority had argued that the loss or destruction of documents in the intervening time impacted its ability to defend the claim but had not been able to provide compelling evidence as to when such documents had been destroyed (or, it seems, if some documents had even existed).

Another issue this case looked at was whether it was reasonable for Carroll to conceal his drug addiction from his GP when being treated for depression. As the addiction would likely have led to his earlier dismissal from the Force, the court ruled that he had acted reasonably in hiding it.

The decision in this case leaves defendants on the back foot with personal injury limitation periods. Defendants intending to rely on limitation to ward off a claim must be able to show that the additional lapse of time has had a material effect on the chance of the claim receiving a fair and informed hearing.

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Blacks Solicitors LLP