I recently spoke to a personal injury practitioner who had some potential issues with limitation. It turned out that the issues probably weren’t issues, or if they were they were easily remedied. Quite often litigators (and on occasions, myself) have a real panic mode when situations arise which appear to be the be all and end all. Here are some tips about personal injury limitation.
Limitation is preserved on the date the Court receives the Claim Form, not the date it is issued
Many practitioners would have seen over the last few years that the date the claim form was received and the date of issue became further and further apart. Understandably the number of claims issued increased dramatically and there was a back log. Whether the new Civil National Business Centre will be better and coping is yet to be know.
Contrary to what has been suggested in the past, PD 7A is quite clear:-
6.1 Proceedings are started when the court issues a claim form at the request of the claimant (see rule 7.2) but where the claim form as issued was received in the court office on a date earlier than the date on which it was issued by the court, the claim is “brought” for the purposes of the Limitation Act 1980 and any other relevant statute on that earlier date
The date is preserved once the claim is received. However the issue is when the date issued does not tie in with the date sent to the Court.
If you can prove the date the Court received the Claim Form on the notice of issue is wrong, rely on that or ask the Court to amend the Notice of issue.
The Notice of Issue is not deciding factor on when the claim form was received. It is common place that when a claim form is being sent for the purposes of limitation it is sent via recorded delivery.
If the recorded delivery confirms receipt by the Court before limitation you can ask the Court to amend the Notice of Issue under the slip rule amendment (although some will as for an application). Alternatively, advise the Defendant you intend to rely on the recorded delivery evidence which is more accurate. If the Defendant wants to rely on the limitation defence, then they need to establish the Court did not receive the claim form before limitation. You can then rely on that recorded delivery evidence.
Limitation defence is precisely that… a defence!
The many times I have had discussions about limitation with Defendants. They are not compelled to rely on the limitation defence. It is a statutory defence open to them. If they forget to plead the Defence, they cannot rely on it. If they plead it, it’s because they have chosen to rely on it.
I once had a Defendant attempt to argue limitation at a stage 3 oral hearing because the Solicitors issued Part 8 after the expiration of the personal injury limitation but before the credit hire’s limitation. They had signed the acknowledgment of service to say they did not dispute the Order for costs, but just the amount. I argued that this was the opportunity to object and say that they needed to rely on the Defence of s11 Limitation Act 1980. They decided not to pursue the argument at the adjourned hearing (unsurprisingly).
If the claim form was received a few days after limitation and the Defendant agrees not to rely on the limitation defence, it’s becuase they realise the futile nature when it comes to limitation in a personal injury claim.
Claimant’s can ask the Court to disapply the effect of limitation.
s33 Limitation Act 1980 gives the discretion for the Court to disapply the effect of s11 Limitation Act 1980 so that even if the claim is received after limitation, the action can continue.
There are factors the Court will need to consider but needless to say, if the delay was a few days or weeks then the Defendant’s position to object to the reliance of s33 will be seen as opportunism. Nevertheless, whilst not a heavy burden to prove- maybe avoid needing to rely on s33?
s33 isn’t dealt with by an application, but as a preliminary issue
This is something that I wasn’t aware of for some time. An application isn’t required because it is a Defence and therefore is a matter for trial (or, where feasible, at a preliminary hearing – KR v Bryn Alyn Community (Holdings) Limited (In Liquidation) EWCA Civ 85).
What practitioners should do is ensure a reply to defence indicates the Claimant’s desire to evoke s33 Limitation Act 1980 and for the Court to exercise its discretion to disapply s11 Limitation Act 1980 to the claim. The practitioner should address the factors that the Court will rely on as per s33(3) Limitation Act 1980. The Court should then consider whether the issue should be dealt with at trial.
For example, if you have a claim where there is more than one Claimant and their claims aren’t ‘statute barred’ (such as a child) then it would seem silly to have a preliminary hearing as a trial will be needed regardless. However, if costs incurred will be significant then it’s worth listing for a preliminary hearing.
It does not apply to Montreal and Athens Convention claims
The Montreal Convention and Athens Conventions will have prescribed limitation periods. If you do not issue within the two year periods for claims subject to these conventions then you are statued barred and s33 does not apply.
Don’t forget to adduce evidence in support of the s33(3) factors
Sounds obvious but there will need to be evidence to support those factors being in the Claimant’s favour. Quite often there are some failures or oversights by the solicitors (it happens, we are human) but you need to adduce evidence to support that, rather than the Claimant causing the issue.
It is likely that most personal injury proceedings issued slightly late will be forgiven by Defendants by not pleading the s11 Limitation Act 1980 defence. Whilst the initial error is likely to be the Claimant, the Defendant needs to consider whether the Court will find it is equitable to disapply s11 and not risk aggravating the Court.
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.
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