Solicitor negligence: when can I claim for missed limitation?

There’s a fixed period of time within which court proceedings must be commenced for all types of claims. This period is known as the ‘limitation period’. If the limitation period expires and court proceedings haven’t been issued, the claim becomes time-barred and the defendant has a complete defence to the claim. This ultimately means that the claim will be unsuccessful.

Limitation is therefore important for both claimants and defendants. If you instruct a solicitor to assist you in pursuing a claim and they miss the limitation deadline, you may have grounds for a professional negligence claim against them.

What does ‘missing limitation’ mean?

‘Missing limitation’ means failing to issue a claim in the courts before the expiry of the applicable limitation period. This isn’t something the court will raise itself. A defendant must actively plead limitation as a defence to the claim.

If the defendant’s assertion is correct, it provides a complete defence and the claim will be struck out. In most cases, the courts have no discretion to extend a limitation period retrospectively. As a prospective claimant, you will therefore be unable to pursue your claim through the courts.

You should be aware that different limitation periods apply depending on the nature of your claim. For example, claims for breach of contract or tort claims, such as claims in negligence, must be brought within six years, whereas personal injury claims must be brought within three years of the date on which you became aware of the injury. The starting point for the limitation period is usually the day on which the cause of action accrues, although in certain cases it may be the date of knowledge or discovery of the facts giving rise to the claim.

Therefore, your solicitor should identify the limitation period applicable to your claim at the outset and take steps to diarise and anticipate its expiry.

Should solicitors monitor limitation deadlines?

When a solicitor is instructed in relation to a client’s claim, limitation is one of the first and most important issues to consider. They should determine at the time of instruction whether the claim is already time-barred or whether the limitation period is fast approaching, meaning urgent action is required to ensure it’s not missed.

Law firms are expected to have administrative processes in place to ensure limitation dates are not missed on cases they are handling. There are also steps that can be taken if you are approaching the limitation deadline to protect your position. You can decide to issue the claim early to avoid missing limitation or alternatively enter into a standstill agreement with your opponent, which suspends or extends the limitation period and provides you with more time to prepare your case or explore settlement of the dispute before limitation has expired.

Therefore, if your solicitor has missed limitation and didn’t inform you, or failed to advise you in advance about the risks and options available, you may have grounds for a professional negligence claim against them.

Is there a limitation date for bringing a professional negligence claim against a solicitor?

If there are grounds to pursue a claim against your former solicitor for negligence, there will be a separate limitation period for pursuing that claim. The length of the limitation period and the date from which it is calculated will depend on the legal basis of the claim, which will usually be negligence, breach of contract or both.

For negligence claims, the limitation period is six years from the date on which the case of action accrues. This usually means the date on which the claimant suffered financial loss.

Pinpointing exactly when a claimant suffers actual financial loss will largely depend on the facts of the claim, but in cases of missed limitation, this will usually be measured from the final date on which the original claim could have been issued to avoid missing limitation. If you only discovered the solicitor’s negligence at a later date, you will have a period of three years from the date you became aware, or reasonably ought to have become aware, that limitation had been missed to bring your claim.

For breach of contract claims, the limitation period is also six years, but it’s measured from the date on which the breach of contract occurred. This may be the same deadline as for a negligence claim, but may vary depending on the facts.

It’s crucially important for potential claimants to obtain independent legal advice as soon as they suspect that a solicitor may have been negligent, in order to understand whether they may have a professional negligence claim for missed limitation. If there’s a claim for solicitor’s negligence, the limitation period on that claim will be running. Seeking advice promptly may help ensure action is taken before time runs out.