The Limitation Period
The starting point in personal injury litigation is that the Claimant has three years from the date of the incident to start Court proceedings. Under the Limitation Act 1980, if proceedings are not started within that time frame then the Claimant may lose their right to bring a claim against the negligent party.
However, there are a number of exceptions to this three year rule that can catch out the unwary.
Claims for Criminal Injuries – 2 years
If your claim arises as the result of a crime of violence such as assault or grievous bodily harm (GBH), then the claim will likely fall under the Criminal Injuries Compensation Authority (CICA) scheme. This scheme is designed to compensate the victims of violent crime when they suffer injuries. The rules on limitation under the scheme are slightly different, giving a limitation period of 2 years. An additional requirement is that the crime must be reported to the police as soon as possible following the injury.
Accidents on Boats or in Aircraft – 2 years
In these two situations, the right to bring a personal injury claim arises from two international Conventions: the Athens Convention in the case of boats and the Montreal Convention in the case of air travel. Both provide a 2-year time limit to bring a claim if an accident occurs in transit. The scope of these Conventions is not always straightforward and legal advice is essential to identify the correct limitation date.
(a) package holidays – 3 years
The Package Holiday Regulations provide that as long as the holiday meets certain criteria to qualify as a “package holiday” there will be a right to bring a personal injury claim against the tour operator for the usual 3-year period.
(b) non-package holidays – variable
However, injuries suffered abroad that are not covered by the Package Holiday Regulations are subject to the limitation periods in that country. This can often be much shorter than the 3-year limit in England & Wales. For example, the limitation period in Spain is only 1 year for personal injury claims.
Fatal Accidents – 3 Years from Date of Death
There are potentially a number of separate claims arising from fatal accidents, both for the estate of the deceased and also for any dependents they leave behind. The limitation period is generally 3 years from the date of death rather than the date of injury.
Children & Protected Parties
Special rules apply to children and protected parties. Protected parties are individuals who lack capacity to instruct solicitors themselves. In such cases the normal three year limit does not begin to run until either the injured person has (a) reached the age of 18 in the case of children, or (b) regained capacity to deal with their legal affairs in the case of adults.
At Barr Ellison we specialise in brain injury litigation and in many cases involving serious brain injuries, the Claimant may never regain capacity and will therefore not be subject to the normal Limitation Period.
Possibility of extension
Under s.33 of the Limitation Act, the Court does have the power to extend the Limitation Period in exceptional circumstances. These extensions are rarely granted, however, and it would be unwise to rely upon this possibility.
Early Action is Vital
As demonstrated, the time limits on bringing a personal injury claim can vary according to the specific accident circumstances, and be much shorter than anticipated. Additionally, any serious personal injury claim will require a long period of investigation to obtain witness statements, review the evidence taken by the police at the scene, obtain medical evidence or copies of accident book entries, to give a few examples. This takes a considerable amount of time and it is therefore vitally important that you discuss your claim with an experienced solicitor as soon as possible following an injury.
An additional benefit of speaking with a solicitor early, is that this enables your solicitor where appropriate to seek funding for any immediate treatment or rehabilitation you may require, supporting you to make the best possible recovery.