Limitation

28 February, 2022

In the words of 14th Century poet Chaucer, “time and tide wait for no man”, and this ancient proverb is no more relevant than in a litigation context.

Simply put, if you think you may have a potential professional negligence claim, you must act quickly, as there is a deadline by which a professional negligence claim must be brought, which is known as the “limitation period”.

The usual limitation period (sometimes referred to as “primary limitation”) in a professional negligence context is 6 years from the date of your loss.

However, the law does appreciate that it is not always clear that there has been negligence until some years later.

For example, your financial adviser may have advised you to invest into an offshore property development, and this development may have generated a return for 7 years, but then suddenly collapsed in the 8th year from investment. Clearly, for the first 7 years, it was reasonable for you to have not known that the advice was negligent, this only becoming apparent once the investment had failed in the 8th year from investment.

There is, therefore, a second limitation period of 3 years from the date that you knew, or reasonably ought to have known, of the negligence (sometimes referred to as a “date of knowledge”).

In the above example, it can be seen how even when the 6 year primary limitation period has expired, there are reasonable grounds to bring the claim up to 11 years after the negligent financial advice (i.e. 3 years from year 8, which was when the negligence became “known”). 

However, there is a longstop date of 15 years from the date of the negligence/loss in which the claim must be brought, after which, irrespective of when you first knew, or ought reasonably to have known, of a potential claim, you cannot bring the claim. It is “extinguished”, and lost to the sands of time.

It is important for claimants and defendants to know that if the limitation period has expired then a defendant has a complete defence to a professional negligence claim. It does not matter whether a claimant is certain that they can prove the negligence. If the time limit has run out, there is (unless deliberate concealment can be shown) nothing that can be done.

If you think you have been subject to professional negligence, and have suffered a loss as a result, then you need to act immediately to ensure that your right to bring the claim is not extinguished.

Again, in the words of Chaucer: “there is a time and a place for everything”, and if you think you may have a potential professional negligence claim, and require expert legal advice, then that time is now.

If you think you have been subject to professional negligence and would like to discuss, please contact a member of our Professional Negligence team