Self-help guide
1. Advice and information on how you might extend the limitation period
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 3 years from when the negligence (cause of action) occurred or from the date you knew or ought or have known that injury had occurred.
If you are intending to bring a claim under the Human Rights Act, then 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.
2. Calculating the limitation period can be complicated.
When considering the advice and information in this leaflet 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. Avma’s advice is that you contact one of our specialist clinical negligence solicitors for advice on the limitation periods in your case.
3. The most certain way of 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. Avma’s leaflet on the Limitation Period https://www.avma.org.uk/wp-content/uploads/Legal-time-limits.pdf – should be read with this one.
Issuing protective proceedings: It is expensive to issue protective proceedings, details of the issue fees can be found here: https://www.gov.uk/government/publications/fees-in-the-civil-and-family-courts-main-fees-ex50/civil-court-fees-ex50 The cost of issuing proceedings in a case you consider to be worth between £5,000 – £10,000 is currently £455.
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 the case.
stay of the proceedings is essentially where the court agrees to freeze time for a given period of time. Once you have taken out an Application the court will set a hearing date, the other party or parties may object to you being granted an extension of time and oppose your application, although sometimes the extension of time might 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.
4. 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 or parties if there is more than one defendant and invite them to agree (consent) to an extension of time. There is no guarantee the other party or parties will agree to this request, but if you have a reasonable case many NHS Trusts and bodies will take a pragmatic approach.
It can be difficult to put the request for additional time in writing. We have a Template letter requesting an extension of time which may help you make your request clearly.
More than one potential defendant: Please note, if you have more than one defendant, perhaps you think your GP and a hospital trust are liable for your injuries then you will have to ensure that 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, then 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 – https://my.avma.org.uk/find-a-solicitor/
5. Information to include in the letter
If you do wish to write to the defendant/s to invite them to agree to suspending the limitation period then we suggest that you make your letter as persuasive as possible by:
Providing a short explanation of when you consider the date of knowledge was, for example, this might be when you first received your diagnosis.
Say 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. For example, I need to suspend the limitation period for 9 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.