Limitation Defence in Personal Injury – the clue is in the name

In my first job in the legal sector, I worked as a paralegal in the “new client team” of a personal injury law firm. My primary role was to assess initial enquiries to determine if there was a realistic chance of success. If the case had potential, I would offer a Conditional Fee Agreement to the client after conducting all the necessary checks.

One crucial question that always arose was the timing of the accident. At that time, I had already begun my legal studies and had completed level three courses in Civil Litigation and Law of Tort. Due to my familiarity with the concept of the limitation period, I was able to grasp the situation with ease.

Whenever a potential client approached the firm, and their limitation period for filing a claim was either expired or about to expire, I was instructed to consult with a senior member of the firm. This was done to ensure that the firm had sufficient resources and time available to handle the case properly. If the firm was already overloaded with ongoing cases, it was unlikely that they would take on a new case that required urgent attention and significant effort.

It wasn’t until that I had seen limitation in a personal injury case.

The Claimant got it wrong

One of my colleagues had a personal injury case that had good prospects, but the limitation period was approaching fast. As a precautionary measure, a protective claim form was issued. The instructions for obtaining the report were sent simultaneously to avoid any delays. urgently sought medical records to obtain a report.

She turned to me with an eye roll and said, ‘It appears my client got his accident date wrong by a month, and it means we have issued a claim form late.’ I had not experienced this before and, although we were aware of s33 Limitation Act 1980, we didn’t really know how to deal with it. Given the urgency of the situation, we did what you would do when you were brought up in a pre-Jackson environment – we turned to counsel.

As per the advice, it is recommended to include a section in the Particulars of Claim which requests the Defendant not to rely on s11 Limitation Act 1980 in their defense. If the Defendant does not comply with this request, an application will be made, and cost will be sought. This is due to the delay in issuing the claim and the limited prejudice for the Defendant. The Defendant was also put on notice before the claim form was served.

Surprising (to us) the Defendant did not refer to the issue of limitation in the Defence.

Further exposure to limitation issues

I had one or two of my own cases where a limitation issue arose and I had, during my time as a Consultant, assisted in other fee earner’s cases. Not once I had ever had a Defendant raise the issue.

One can understand that where the delay in issuing (which could easily be oversight or claim forms being lost en route to the Court) is so minimal that a Defendant does not seek to rely on the limitation defence. It would be, understandably, where years have passed since limitation expired.

I have now come to a case which I am dealing with as a consultant where the Defendants (yes, plural) are seeking to rely on the limitation defence, but one in particular is so adamant that they are seeking a strike over a delay of twelve days (and that is calendar days, not business days).

Previous fee earner error

We all make mistakes, it is human nature. I’ve made mistakes before (I put the wrong date for a hearing fee to be paid which led to an automatic strike out. It was eventually rectified) and I have dealt with many cases as an advocate where an error has been made and I am asked to remedy the same.

This fee earner received a case from the client’s previous firm and then, due to an oversight, forgot to deal with the case and limitation passed. He was forthcoming about it to his employer but nevertheless, there was 12 day delay between limitation expiring and the Court receiving the claim form (which we all know is the step that the Court deems to have received the claim form in time for the purposes of limitation).

I later took over conduct of the matter and wrote to each Defendant about the issue and invited them not to rely on the limitation Defence. One of the Defendants told me it was not in their ambit to agree ‘relief from sanction’. I, of course, reverted to them and clarified that s33 Limitation Act 1980 was not relief but a statutory provision that could disapply the effect of s11 Limitation Act 1980. I put them on notice that the likelihood of s11 being disapplied being so high given the limited delay that it would be prudent to consider the same.

Section 11 v Section 33

Naturally the Defences were raised, replies to defence were filed and subsequently there was a battle of the applications (ours for s11 to be disapplied under s33 and their application to strike out our claim).

What I learned was that the advice my colleague received those many years ago was not in keeping with Clerk & Lindsell on Torts which suggests that “where feasible a judge should decide the limitation point by a preliminary hearing by reference to the pleadings and written witness statements and the extent and content of disclosure“.

Both the Partner of the Claimant law firm and the Judge knew this (and now that I have a copy of Clerk & Lindsell, I do too) so the matter is due to be heard at a preliminary hearing in August (which the partner of the firm will be conducting).

For obviously reasons, I cannot go into specifics about the facts of dispute but I was advised that even the Judge was giving strong judicial indication that the Defendant would have a hard time convincing the court that s33 should not prevail.

It seemed that those acting for the Defendant are convinced there is prejudice and, what was more disconcerting, they insinuate that they were compelled to rely on s11.

The statutory defence is just that, a defence

One can understand how it is possible to misinterpret a claim as being statute barred with a claim being extinguished. It has always been my understanding from experience that a limitation defence was just that, a defence. Clerk & Lindsell is quite clear in that “a Defendant who wishes to rely on the defence of limitation must plead specifically that the action is out of time and the Act confers no right on him other than to plead the defence if he chooses to do so“.

It is also clear that there are certain cases where a claim is extinguished. For example, a claim under the Montreal Convention (for an accident on an aircraft), under the Athens Convention (on a sea vessel) and claims under the Consumer Protection Act 1980 (which has a long stop of 10 years for product liability claims). These particulars claims do not have the ability to be remedied by s33. The Defendant however must still plead it for it to be effective.

The ability to disapply s11 with s33 is a discretionary one. It is on the Claimant to prove and the Court needs to consider it equitable to do so. It will consider the following factors:-

(a)the length of, and the reasons for, the delay on the part of the Claimant

(b)the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the Claimant or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 [F7, by section 11A] [F8, by section 11B] or (as the case may be) by section 12;

(c)the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the Claimant for information or inspection for the purpose of ascertaining facts which were or might be relevant to the Claimant’s cause of action against the defendant;

(d)the duration of any disability of the Claimant arising after the date of the accrual of the cause of action;

(e)the extent to which the Claimant acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;

(f)the steps, if any, taken by the Claimant to obtain medical, legal or other expert advice and the nature of any such advice he may have received.

Economical decision to contest

It is completely understandable why most Defendants will not plead the statutory defence if it is spelled out why the court may adhere to s33 and disapply s11 to the claim.

I can also understand a situation where the Defendant’s first knowledge of a claim is after limitation expires when a claim form is issued. Can a Defendant really compare with that situation when they have been in communication during the pre-action protocol which commenced not so long after the cause of action?

There comes a point where it has to be accepted that although one can exercise a defence or a step to challenge the other party, the real life consequences are usually that unless there is a real prejudice, a remedy is likely to succeed.

I will of course post about the actual case once the preliminary hearing has taken place (with the law firm’s permission). Missing limitation in a personal injury claim is not the end of the world.

Information

AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026.

From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.