Self-help guide
There are two key dates that may be applicable when bringing a civil claim for personal injuries (including clinical negligence claims). Both time limits relate to when you need to have issued your case at court to start your action.
The first time limit you should be aware of is that proceedings must be issued within three years of the date on which the negligence (cause of action) occurred, or the date you knew (or ought or have known) injury had occurred.
If you are intending to bring a claim under the Human Rights Act, you must issue your claim within 12 months from the date the cause of action arose.
If you fail to issue within these time limits, your case may be statute-barred and you will be unable to bring a claim regardless of the weight of evidence. Although the courts do have discretion to extend the limitation period, this is rarely exercised.
When considering the advice and information in this guide, it is very important you appreciate that the time for calculating the start of the limitation period can be far more complicated than it might initially appear. Our advice is that you contact one of our specialist clinical negligence solicitors for advice on the limitation periods in your case as soon as possible.
Protecting the limitation period
The only certain way of protecting your case from missing the time limits is to issue proceedings — sometimes referred to as issuing protective proceedings. Our guide on understanding the limitation period may be helpful.
Issuing protective proceedings
It is expensive to issue protective proceedings. For example, the cost of issuing proceedings for a case estimated to be worth between £5,000 and £10,000 is currently £455. You can view all the fees on the GOV.UK website.
Staying the proceedings
Once you have issued the proceedings, you will then have to pay a further fee to take out an application to stay the proceedings while you continue to investigate the merits of your case.
A stay of proceedings is essentially where the court agrees to freeze time for a given period. Once you have taken out an application, the court will set a hearing date. The other party may object to you being granted an extension of time and oppose your application, although sometimes the extension may be agreed by the other parties and the application dealt with by consent.
You will be faced with additional costs if you need to instruct a barrister to represent you at court.
Alternatives to issuing proceedings
Many people find the cost of issuing proceedings to be very expensive, especially if they are still investigating their case and are unsure of how strong their claim is. You can write to the other party and invite them to agree (consent) to an extension of time, but there is no guarantee the other party will agree to this request. However, if you have a reasonable case, many NHS trusts and bodies will take a pragmatic approach.
It can be difficult to put a request for additional time in writing. Our template letter requesting an extension of time may help you make a request clearly.
Please note: If you have more than one defendant (perhaps you think both your GP and a hospital trust are liable for your injuries), ensure you send a letter to each potential defendant inviting them to agree to extend time. If only one of the potential defendants agrees to extend time, you may need to issue protective proceedings and take out an application to stay proceedings against the party who refuses to consent. If this happens, we strongly advise you to seek legal advice by approaching an Avma accredited lawyer.
Information to include in the letter
If you wish to write to the defendant(s) to invite them to agree to suspending the limitation period, you can make your letter as persuasive as possible by:
- providing a short explanation of when you consider the date of knowledge was (e.g. when you first received your diagnosis), and
- saying what you have been doing during the time that has elapsed that causes you to need extra time. This might be because you have been debilitated due to treatment or injuries that have arisen because of negligence. Give a reasoned estimate of the additional time you will need, e.g. “I need to suspend the limitation period for nine months while I wait for my medico-legal expert to provide a report for me.”
This information is for guidance only. Avma is not able to offer detailed information on what the limitation period might be in individual cases, but is able to offer general information on when the limitation period may begin to run and end. You should always instruct a qualified, clinical negligence specialist solicitor to obtain the most accurate advice on limitation.