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My solicitor missed a Limitation date – what shall I do?
Solicitors owe their clients a duty of care to act for them with the same high level of care and skill as they could expect to receive from any reasonably competent solicitor. If a solicitor’s work falls below that level, they may well have been negligent and if those negligent, or careless, actions have caused the client to suffer a loss, then they may be able to bring a solicitor’s negligence compensation claim.
Added 04th October, 2019
Missing the Limitation deadline
When a solicitor is instructed to bring a personal injury compensation claim or medical negligence claim, they must act within certain time-limits. The most important deadline that any would-be claimant must comply with, is the time limit for bringing a claim in the first place. Of all the claims for solicitor negligence that we are asked to assist them with, missing the deadline for starting a claim is one of the most frequent. This is known as missing the limitation date and the consequences of doing this are serious. It usually leads to the solicitor who was at fault facing a solicitor negligence claim brought by his former client.
What is the Limitation period?
When you sustain personal injury in an accident that wasn’t your fault, you have three years from the date of the accident that caused your injury, within which to make a claim. Likewise, if you suffer medical negligence which causes you injury or makes an existing medical condition worse, then you have three years from that negligence taking place, within which to bring a claim. (If you are injured in an accident whilst on a plane or ship, you only have two years within which to make a claim).
The piece of government legislation that has laid down this time period for bringing a claim is the Limitation Act 1980. By ‘bringing a claim’ or ‘making a claim’ for the purposes of the Limitation Act, we mean that if you suffered injury in a car accident, for example, on the 1st January 2019, by 11.59 pm on the 31st December 2022, you must have formally started court proceedings against the party that you hold responsible for the accident. If you fail to do so the claim will be ‘statute barred’ and cannot be brought after that date.
Date of Knowledge
It is usually relatively easy to work out what the limitation date is in cases of personal injury claims following a road traffic accident, an accident at work or a trip, slip or fall accident in a public place.
In some cases of medical negligence or industrial disease claims, particularly asbestos disease claims, it would be prejudicial to the claimant to say that the start date from which the limitation period begins to run, is always when the act of negligence or breach of duty took place. A couple of examples will make this clearer.
In some medical negligence cases, it may not become apparent that the medical practitioner has been negligent until some considerable time after the negligence has taken place. An example of this would be where a patient undergoing a test for cancer, has been misdiagnosed and told that he does not have cancer, when in fact he does. The specialist or radiologist’s negligence in misreading an X-ray, may not come to light until the patient goes for a further consultation with a specialist many months later.
Similarly, in cases of asbestos disease, it is well known that the period from exposure to asbestos to diagnosis of an asbestos disease, can be many years after the exposure that caused the disease. In the meantime, the person who has been exposed may have no symptoms whatsoever for as many as 20 years or more. It is only when symptoms start to appear and a diagnosis of asbestos disease is made, that the affected person gets knowledge of his asbestos condition.
In both examples above, it would be highly unfair if the limitation period started to run from the date of negligence by the medical practitioner or from the date of breach of duty of care by the employer who was responsible for causing the asbestos exposure.
It is for this reason that the Limitation Act contains a provision to cover this situation by providing that limitation starts to run either from the date that negligence occurred (as in the car accident example) or the date the injured person had knowledge;
- That the injury was significant, and
- That the injury was caused by the negligence or breach of duty complained of, and
- Of the identity of the Defendant.
‘Date of Knowledge’ can be a complicated area of law. Suffice to say, as in the medical negligence and asbestos disease examples above, where date of knowledge applies, the limitation period will only start to run from that date of knowledge.
Why would my solicitor have missed issuing court proceedings within the limitation period?
Given the catastrophic effects of missing limitation, it is hard to understand how such an important date can be missed. When limitation is missed, it is only in the rarest of cases, that the court will agree to extend the limitation period. Any competent solicitor would therefore ensure that proceedings are commenced well before limitation expires. If a solicitor does miss a limitation date and fails to issue court proceedings in time, it is often purely down to human error and will in most cases be negligent.
If you have a personal injury, medical negligence or asbestos disease case ongoing and a solicitor is handling the matter for you, it may be prudent to check with your solicitor whether court proceedings have been commenced already. If the solicitor has not commenced proceedings and the limitation date is approaching, then ask why proceedings have not yet been started and when they will be. Ensure that you are satisfied with the response that you receive. And if you are not satisfied, speak to another solicitor.
What should I do if I find out that my solicitor has not issued proceedings and has missed the limitation date?
As soon as your solicitor realises that they have failed to issue proceedings on your claim, within the relevant limitation period, then their professional rules require him to advise you of what has happened and advise you to seek independent legal advice. You are strongly advised to seek out that independent advice as quickly as possible. You have six years within which to make a solicitor’s negligence compensation claim, but given the circumstances, it is highly likely that you will want to proceed against your solicitor as quickly as possible! You will be entitled to claim for the losses that you have suffered as a result of your solicitors’ negligence on the basis that you have lost the chance to bring your claim.
At Bridge McFarland LLP we have a specialist team of Professional Negligence Solicitors and we have acted for many clients who have suffered as a result of lawyer negligence including cases where solicitors have missed limitation dates.
We offer a free, confidential, no obligation assessment of your case. We will start by taking some details, usually by telephone or by email. One of our qualified professional negligence solicitors will then review and assess your claim. In some instances, it may be necessary for us to obtain and review any files or other relevant documents held by your professional advisor or to obtain evidence from an expert. We will then be able to advise you on the merits of your claim and to agree a case plan. We will also talk to you about funding options and agree how the claim will be funded. In many cases, this will be on a ‘no win, no fee’ basis.
Call us now on 01482 320 620 and speak to one of our experienced professional negligence solicitors. Alternatively, you can email us on email@example.com and leave your details. We’ll then get back to you at a time that is convenient to you. If you prefer you can also contact us online.