Limitation refers to the legal time period within which a party must bring a claim against another. If a claim is not issued within that period, it becomes “statute barred”, meaning it can no longer be pursued. Once a claim is statute barred, it provides a complete defence to the action.
The starting point for a claim in negligence is that a party has six years from the date the breach occurred to bring a claim. This is known as the “primary limitation” period.
Although it is always preferable to issue a claim within the primary limitation period, this is not always achievable. A party may not realise within the six year period that a professional has acted negligently or that they have suffered loss as a result.
Where a party is genuinely unaware of the potential claim, the limitation period may be extended by three years from the date they acquired the relevant knowledge. This is known as the secondary limitation period.
Whether secondary limitation applies is a question of fact. It may be possible to show that the claimant either knew, or ought reasonably to have known, about the potential claim at an earlier point. If so, the claim will fall outside the limitation period and will not succeed.
All limitation periods are subject to a 15 year long stop. This means that, regardless of when someone becomes aware of the breach, they cannot bring a claim more than 15 years after the alleged breach occurred. For example, if a person only discovers the breach 16 years after the event, they would be unable to pursue a claim because the long stop has already expired.
The case of Witcomb v J Keith Park Solicitors (a firm) & Anor [2021] gives guidance as to how the secondary limitation period is applied. On appeal in 2023, the court held that where the alleged negligence consists of giving wrong advice, the limitation period does not begin to run until the person bringing the claim has reason to consider that the actual advice may have been wrong. It was also established that where the negligence arose from a failure to give advice, the limitation period does not start to run until the person bringing the claim has reason to consider that advice should have actually been given which they did not receive (Witcomb v Keith Park Solicitors [2023]).
A party may have a professional negligence claim but if there is a delay in taking action this could prevent a claim from succeeding. It is therefore very important that advice is taken at an early stage to ensure that time limits are protected, which may include issuing protective proceedings.
