Limitation In Claims Involving A Protected Party

Limitation is the legal deadline by which a claim needs to be brought and varies depending on what type of claim it is

The various provisions are set out in the Limitation Act 1980.

Very broadly, a civil claim must be brought within 6 years, but there are a number of caveats to this standard deadline

One of the variations is when the claim involves a protected party.

A protected party

A protected party is someone who lacks capacity (usually with reference to the Mental Health Act) to conduct legal proceedings.

Limitation

Section 28 (1) of the Limitation Act confirms that the limitation period does not expire for as long as the protected party remains under a ‘disability’

“Subject to the following provisions of this section, if on the date when any right of action accrued for which a period of limitation is prescribed by this Act, the person to whom it accrued was under a disability, the action may be brought at any time before the expiration of six years from the date when he ceased to be under a disability or died (whichever first occurred) notwithstanding that the period of limitation has expired.”

In the case of Headford (Suing by his Father and Next Friend Edward Lawrence Headford) v Bristol and District Health Authority (1995), the court were called upon to decide whether a claim issued 28 years later should be struck out as an abuse of process.

The court advised that it was not appropriate to strike out the claim for the following reasons:

As to the structure of the statute, it is to be noted, first, that section 28 contains no provision comparable to that in section 33 for the carrying out of a balancing exercise as to prejudice in relation to the disapplication of time limits prescribed by sections 11 and 12. Section 28 does not refer to prejudice at all.

Secondly, section 28(1) contains no provision comparable to that in section 28(4) for a timeous longstop or cut-off point. Thirdly, in permitting an action to be started within six years of the end of a disability, parliament has expressly contemplated, by section 28(1), that, in the case of one well-known and substantial group of persons under a disability, namely minors, an action may not be started until 24 years after the conduct of which complaint is made.

Are there in the present case such circumstances as point exceptionally to an abuse of process? In my judgment, there are not. The delay does not need explanation as the writ was issued within the time allowed by parliament. Prejudice arising to the defendants from the unavailability of evidence, or the change in their insurance arrangements, is immaterial. If parliament had intended prejudice to be material, it would have said so as it did elsewhere in this Act.

But what about Section 28(2) which goes on to state:

This section shall not affect any case where the right of action first accrued to some person (not under a disability) through whom the person under a disability claims.

What does this mean, especially if the protected party has a deputy/litigation friend who does have capacity and through whom a claim could be made?

This section covers a scenario where a protected party inherits a claim from someone who did have capacity.
Limitation would have already started and does not stop because the person who has inherited the action does not have capacity. If limitation never started, then it would not run if the person remains under a disability.

This is because a claim always belongs to the protected party rather than their deputy or litigation friend.

Final Words

Limitation is highly technical and is the subject of much litigation as it is so easy to get wrong and the consequences can be dire.

Don’t leave things too late so that limitation becomes an issue.

Get advice and assistance early on as to whether you have a claim or not. If you are getting close to limitation, consider seeking a moratorium or stay from the other side/court.

If limitation has already expired, consider whether you have the right to apply for a dispensation under section 33 (usually in personal injury and clinical negligence claims).

If you or a loved one is involved in a claim which concerns a protected party, it is important to seek specialist legal advice as early as possible. Limitation rules can be complex, and missing a deadline can have serious consequences.

Our specialist Dispute Resolution team is experienced in handling claims involving capacity issues and can guide you through every step of the process. Get in touch today on 0330 822 3451 to discuss your situation in confidence. Alternatively, request a callback at a convenient time.