Can Expired Documents Again Become Valid Underlaw of Limitation

While parties are encouraged to accept pre-activeness steps to resolve their disputes without recourse to the courts (and many are able to), in that location may come a point in a dispute where no progress is existence made and you need to consider commencing formal legal proceedings. Just how do you go nearly this, and how long do you have to practise it?

Here we look at the basics of limitation, and commencing proceedings.

What is limitation?

Limitation is a potential defence to a legal merits, on the footing that the claim has not been brought in time. Legislation prescribes limitation periods within which a legal action must be brought. If a claimant does non bring an activeness within the relevant limitation period, they run the risk that a defendant volition argue any claim is out of fourth dimension (also referred to as "statute-barred" or "fourth dimension-barred").

How long is the limitation period/how long do I have to bring a merits?

In that location are diverse limitation periods prescribed by legislation. These vary according to the type of legal activity being brought. For instance, negligence, personal injury and defamation claims each have their own specific limitation periods. The table below shows the limitation period for some mutual causes of activeness in commercial claims.

Cause of action	Limitation Period	When does period start? (see caption below)	Statutory provisions
Breach of contract (simple contract)	Six years	Date of breach	s.five Limitation Human action 1980
Breach of a contract (deeds)	12 years	Engagement of breach	due south.viii Limitation Act 1980
Tort (including negligence, just excluding personal injury / death)	Six years	When damage is suffered (with protections for latent damage and knowledge – see master text)	south.2 Limitation Act 1980 (and s.14A & B)
Contribution claims (past a defendant against a tertiary political party who was too responsible)	Ii years	Usually date of judgment or settlement	s.10 Limitation Human activity 1980

When does the limitation period starting time to run?

The limitation period starts to run when the cause of action 'accrues' to the claimant, i.e. when all of the legal elements are present to enable the claimant to make a claim. When a cause of action accrues will therefore depend on the nature of the claim being brought and the necessary legal elements of that claim. For case:

1. In a claim for alienation of contract, the claimant's crusade of action accrues as presently as the defendant breaches the contract, and so the claimant'due south time to bring a claim starts to run at this betoken.
2. In a claim for negligence however, the claimant's cause of action accrues non when the accused commits a wrongful act, merely only when the claimant suffers loss or damage as a result. In some cases loss may exist suffered immediately when the wrongful human action occurs, but in others actual loss may be suffered at a later date.

Therefore even where 2 types of action have the same limitation period, that menstruum may start to run at a different time in each case. In some circumstances, that can mean that one blazon of activeness remains open to a claimant even when another is statute barred. Information technology is mutual, for example, for a claimant to bring a merits confronting a professional for both breach of contract and negligence because, although both causes of activity accept a limitation catamenia of six years, information technology is possible in some circumstances for a negligence claim to be brought subsequently than 1 for breach of contract.

There are likewise some additional protections for claimants in some cases which may effectively extend the fourth dimension to bring a claim:

• Negligence - in actions for negligence, a claimant may not become aware of the facts giving rise to a merits until later on the cause of action accrued. To cater for this, limitation expires on the later of (a) six years after the cause of activity accrued; or (b) three years after the claimant knew (or ought to have known) the facts necessary to bring the merits. It can, however, sometimes be difficult to pinpoint exactly when the claimant attained (or should have attained) the requisite knowledge to bring an action. To provide some certainty, there is therefore also a longstop - an action must be brought at the latest 15 years from the negligent human action.
• Fraud, mistake or darkening - where an action is based on fraud, fault or where the accused has deliberately concealed facts relevant to the cause of action, so the limitation period does not start until the claimant discovers (or could reasonably take discovered) the relevant fraud, facts or fault.

Tin can parties agree a different limitation catamenia?

Yep. Parties are free to agree a different limitation catamenia than that prescribed past legislation. Nigh ordinarily, this volition be to reduce the statutory limitation period and further restrict the time in which a merits must be brought (although such agreements may be subject to the reasonableness examination under unfair terms legislation). Then ensure you cheque whatever contract to meet if it alters the fourth dimension in which you tin bring a merits. Yous should likewise check if the contract betwixt the parties has any requirements every bit to giving notice of potential claims. These provisions are mutual for example in corporate auction documents, and failing to adhere to whatever requirements, as to the timing and course of notice, may human action every bit an effective contractual bar to bringing a merits, even if the claim is inside statutory limitation.

What does a claimant have to practice by the limitation date?

The claimant needs to have 'brought an activeness', i.e. commenced legal proceedings. In litigation, this means the courtroom needs to take issued a claim form at the asking of a claimant i.east.:

• The claimant delivers a claim course to court (physically or, in many cases now, electronically);
• The claimant pays the issue fee (which can exist up to £10,000); and
• The court seals and 'bug' the claim form.

An activeness is generally deemed 'brought' on the issue appointment endorsed on the claim form by the courtroom. Nonetheless, if at that place is any delay between the court receiving the claim form from the claimant, and the court issuing that claim form so, for the purposes of limitation, proceedings are 'brought' when the claim form was received by the court role.

If the parties have agreed to submit their disputes to arbitration, then the claimant needs to have commenced arbitral proceedings by the limitation date. Arbitration is past its nature, a flexible consensual process, and then when arbitral proceedings are accounted to have commenced volition depend on the rules of any arbitral institution the parties have chosen, or any other understanding the parties take reached. However, in that location is a default provision in southward.14 of the Arbitration Human activity 1996 which provides that arbitral proceedings are commenced when a party serves notice requiring the appointment of an arbitrator.

Are counterclaims subject to limitation?

Aye. While information technology volition usually be the claimant who is concerned to bring a claim by the limitation appointment, bear in heed that counterclaims are a form of claim, and limitation applies as to them. So a party who has a claim which it sits on and raises just equally a counterclaim in response to a merits brought against information technology, may find that counterclaim is time-barred.

What should I do if time to bring an action is running out?

If yous believe y'all have a cause of action, but time to issue a claim is running out, then you should seek legal advice as shortly equally possible so that your directorate tin investigate your merits and suggest on limitation. If time to bring the action is very tight, and then there are ii common steps y'all tin take:

• Negotiate a 'standstill agreement' - information technology may be possible to enter into a standstill agreement with the party you would exist bringing a claim against. The event of a standstill agreement is to 'stop the clock' for limitation, and and so allow the parties further time to investigate claims, have whatsoever necessary pre-action steps and consider settlement before issuing a merits form. If, for instance, the claimant has 2 weeks left until the end of the limitation menses, the parties could enter into a standstill for three months. After the iii months the standstill comes to an terminate, and the limitation clock starts again - at which point the claimant still has the two weeks it had prior to the agreement. While standstill agreements have become common, care must be taken to ensure that the agreement is drafted appropriately. Poorly drafted standstill agreements may be ineffective to stop limitation, meaning that a claimant may nevertheless lose the cause of action they were seeking to preserve.
• Issue a protective claim form (or arbitration notice) - while it will often be possible to enter into a standstill agreement, if you lot are actually upward against the limitation clock, then in that location may be bereft time to negotiate one - particularly as a defendant may exist reluctant to agree to extend time for you to bring a claim which is very nearly time-barred. In these circumstances, y'all may have to upshot the claim grade as a matter of urgency to 'stop the clock'. In one case yous have done that, you can consider your next steps. It may be that you lot now need to catch upwards on 'pre-activity' steps, and/or typhoon detailed particulars of claim. These are steps which would ideally be completed earlier issuing the claim. Nonetheless, it may exist possible either to complete these steps earlier serving the claim class, or to embark proceedings and and then seek an immediate stay to let yous to follow the pre-action protocol. Indeed some courts specifically provide that a party in this situation can dispense with pre-action protocols if limitation is in issue (see e.k. the Technology & Construction Courtroom guide at 2.3.2).

Bear in mind that:

• Substantial fee increases in the last few years hateful that the court fee for issuing a merits form can be up to £10,000 (this is the fee that applies to claims worth £200,000 or more). Issuing a protective claim grade can therefore involve substantial financial outlay.
• While a merits form need only outline brief details of the claim (with full particulars to follow), information technology is of import to be articulate before commencing proceedings that you practice accept a claim (albeit one which may require further investigation and particularisation) and that y'all know who it is confronting. If you need to make substantial alterations to a merits (or the parties to it), then it may corporeality to a new claim and limitation may yet be a defence.
• Finally, once proceedings are issued, the court has the power to make costs awards, and then the claimant is potentially "on the hook" for the defendant'southward costs from this bespeak onwards.

While issuing a protective claim form may be necessary to preserve a cause of action, it is a step which has consequences and is not one which should exist taken lightly.

Things to call up:

• Don't sit on a claim - if limitation is in upshot, seek legal communication as shortly equally possible, and take steps to preserve your claim by negotiating a standstill agreement or, as a last resort, issuing a protective claim form.
• Ensure that you are aware of and comply with whatsoever contractual restrictions on bringing claims - e.thou. requirements for notices, or any reduction of the statutory limitation period.

For more information or guidance on making a claim, contact Samantha Holland or a member of our Dispute Resolution team.

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NOT LEGAL ADVICE. Information fabricated bachelor on this website in any form is for information purposes only. It is non, and should not be taken as, legal advice. Y'all should not rely on, or have or fail to accept any action based upon this information. Never condone professional legal advice or delay in seeking legal communication because of something you have read on this website. Gowling WLG professionals will exist pleased to hash out resolutions to specific legal concerns you may have.

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Source: https://gowlingwlg.com/en/insights-resources/articles/2019/the-basics-limitation-commencing-proceedings/

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