The Limitation Act – when can a court exercise discretion to allow an otherwise time barred claim to continue?

Under section 11 of the Limitation Act 1980 (the Act), a claim for compensation for personal injury for negligence must be issued by a court within three years of the date when the injury occurred or the date of knowledge of the person injured (if later). Date of knowledge generally is the date when the claimant knows (having made reasonable enquiry) they have the right to bring a claim. However, a claim that is statute barred by section 11 may still proceed if the claimant can persuade the court to exercise its discretion under section 33 of the Act.

In Rayner v Wolferstans (a firm) and Medway NHS Foundation Trust the court was required to determine preliminary limitation issues regarding the claimant’s negligence claims against Wolferstans (her former solicitors) and Medway NHS Foundation Trust (Medway).

The court found the claimant's knowledge ran from 22 July 2004, when she believed her injuries had been caused by the Trust’s negligence. The claim was therefore time barred.

However the court decided to exercise its discretion under section 33 of the Act and disapply section 11 and allow the claim against Medway to proceed.

Factors influencing the court’s decision:

• It was only in April 2012, when expert evidence was received, that the claimant knew she had a good negligence claim against Medway;
• The claim against Wolferstans was not guaranteed to succeed as it would be on the basis of a lost opportunity (to pursue the claim against Medway) and was for substantially less than a claim against Medway. The claimant would therefore suffer prejudice if the time bar was allowed to stand; and
• The court considered the prejudice to the claimant outweighed any prejudice which may be suffered by Medway.

The emphasis now therefore seems to be on the potential prejudice suffered by parties.