Ten steps to seeking a limitation extension from the courts for filing a clinical negligence claim
Asking the court to extend the time limit under section 33 of the Limitation Act 1980 can be daunting. I would not suggest that you go down this road without proper legal advice. Still, here are 10 steps to help you navigate this process with your lawyer.
- Understand the Limitation Period
The primary limitation period for clinical negligence claims under the Limitation Act 1980 is three years from:
- The date of the alleged negligence, or
- The date you first had knowledge of the injury caused by the negligence (as per section 14 of the Act).
If this period has passed, you are still capable of proceeding with your claim. You can do this by asking the court’s permission to continue under section 33 of the Limitation Act.
- Know the Court’s Discretion Under Section 33
Section 33 of the Limitation Act 1980 gives the court the power to disapply the limitation period if it is deemed equitable to do so. This means the court will consider whether it is fair and just to allow your claim to proceed despite the delay.
- Prepare Evidence to Support Your Application
The court will not make its decision in a vacuum. You must offer admissible evidence to support your application. This includes:
- A statement from you (the claimant):
- Explain the reasons for the delay in bringing the claim.
- Include any personal circumstances.
- Mention challenges that contributed to the delay.
- Medical evidence:
- Provide documentation that supports your claim.
- Explain the nature of the injury or harm caused by the clinical negligence.
- Expert opinions:
- Obtain legal or medical expert advice to strengthen your case.
- Defendant’s conduct:
- If applicable, provide evidence.
- Show how the defendant responded to your requests for information.
- Explain how this conduct contributed to the delay.
- Tackle Key Factors the Court Will Consider
The court will assess the following factors under section 33(3) of the Limitation Act 1980:
- Length and reasons for the delay:
- Explain why the claim was not brought within the limitation period.
- Give any reasonable justification for the delay.
- Impact of the delay on evidence:
- Discuss whether the delay has affected the availability or reliability of evidence.
- If the defendant has lost or destroyed relevant evidence irresponsibly, this will weigh in your favour.
- Defendant’s conduct:
- Highlight any actions or inaction by the defendant.
- These may have hindered your ability to bring the claim earlier.
- Your actions:
- Show that you acted promptly and reasonably once you became aware of the potential claim.
- Disability:
- If you suffered from a disability that affected your ability to bring the claim, give evidence of its duration.
- Show how it affected your ability to bring the claim.
- Steps taken to seek advice:
- Show that you sought medical advice quickly.
- Additionally, seek legal or expert advice as soon as reasonably possible after becoming aware of the injury.
- Consider the Balance of Prejudice
The court will weigh the prejudice to both parties:
- Prejudice to the claimant:
- Explain how you would be disadvantaged if the limitation period is not disapplied.
- You might lose the opportunity to seek justice.
- Additionally, you could miss out on compensation for your injury.
- Prejudice to the defendant:
- Discuss whether the defendant’s ability to defend the claim has been significantly affected by the delay.
- Consider issues like the loss of evidence or witnesses.
- Be Prepared for the Court’s Broad Discretion
The court’s discretion under section 33 is broad and not limited to exceptional cases. Each case is assessed on its own facts. It is your job to show that it is fair to disapply the limitation period. But, this burden is not necessarily heavy and depends on the circumstances of your case.
- Seek Legal Advice
Clinical negligence claims are complex, and applications under section 33 need careful preparation. It is highly recommended to consult a lawyer who is experienced in clinical negligence cases. They can help you gather evidence, prepare your application, and show your case effectively to the court.
- Practical Points
- Examine prejudice:
- Carefully assess the potential prejudice to you if the limitation period is upheld.
- Also, evaluate the impact on the defendant if it is disapplied.
- Prepare witness evidence.
- Make sure you have statements from yourself.
- Include statements from the defendant if possible.
- These statements should tackle the key factors the court will consider.
- Review case law:
- Earlier decisions under section 33 can offer useful guidance, but remember that each case is fact-specific.
- Be Aware of Comparable Case Law
Clinical negligence cases are unique. However, reviewing similar cases can help you understand how courts have exercised their discretion under section 33. For example:
- In Horton v Sadler [2006]:
- The court emphasized that the discretion under section 33 is broad.
- It is not limited to exceptional cases.
- In Cain v Francis [2008]:
- The court highlighted that the defendant’s loss of a limitation defense is not a valid argument.
- The court emphasized that this loss is not always a reason against disapplying the limitation period.
- Conclusion
If you believe you have a valid clinical negligence claim, you may still have a chance to pursue justice. This is true even if you are outside the limitation period. Carefully prepare your application. Address the court’s considerations under section 33. Seek professional legal advice. By taking these steps, you can increase your chances of successfully obtaining an extension to the time limit.
