Written by Laura Zverev, Associate in our Dispute Resolution department, and Abigail Flanagan, Partner in our Dispute Resolution department.
If you have instructed a solicitor to bring a personal injury claim for an injury sustained whilst you were serving in the Military, there are strict deadlines within which your solicitor must issue court proceedings in your claim. This is known as limitation.
The Limitation Period
The limitation period will usually be three years from the date you sustained the injury. This period may be extended in some circumstances where your injury is not immediately apparent (for example, if you suffer hearing loss through exposure to loud noises such as machinery or explosions whilst serving in the military, the long-term effect of your injury may not become apparent until much later). In those circumstances, you will usually have three years to bring a claim from the date you first became aware of your injury.
Missed Limitation
If this limitation period is missed, your claim will become “statute barred”. This means that your opponent may have a full defence to your claim in being able to argue that you are out of time. In those circumstances, you will no longer be able to pursue your claim.
What can you do if your solicitor misses the limitation date?
If it becomes apparent that your solicitor has missed a limitation date, you may have a claim against your solicitor for professional negligence. In order to succeed in such a claim, you must be able to show that:
- Your solicitor owed you a duty of care.
- That duty of care was breached by your solicitor.
- The breach of the duty of care caused you to suffer a financial loss.
If you have entered into a contract with your solicitor instructing them to pursue a personal injury claim on your behalf, you will usually be able to show that your solicitor owed you a duty of care.
If a limitation date has been missed, and no advice was given to you about the limitation date in order for you to take steps to protect your position, you may also be able to show that the duty of care owed to you by your solicitor was breached.
In these situations, you can safeguard your position by taking specific actions. These actions may involve initiating court proceedings or negotiating a ‘standstill agreement’ with your opponent which is an agreement to pause the limitation clock for an agreed period of time A standstill agreement essentially halts the countdown of the limitation period for a mutually agreed-upon duration.
In order to establish a claim, you will also need to show that missed limitation has caused you to suffer a loss. You may also be able to establish this if you have been prevented from securing damages or compensation in your personal injury claim due to your solicitor failing to take action to protect your ability to continue to pursue a claim within the limitation period.
If your solicitor misses the limitation date, causing you to lose the opportunity to pursue a strong claim, remember that you need to demonstrate a genuine chance of success in your personal injury claim, rather than mere speculation. The evaluation of that chance will have an impact on the level of damages you are awarded. This is because the court will carry out an assessment of the chance of success of the personal injury claim. If the court determines, for example, that the chance of the personal injury claim succeeding was 60%, the court will award 60% of the value of your claim against your solicitor for the professional negligence claim, if this claim is successful.
Conclusion
If your solicitor misses the limitation date, there are steps you can take to protect your rights and potentially pursue a claim for professional negligence. Remember, demonstrating that your original personal injury claim had a genuine chance of success is essential.. If you believe your solicitor has missed the limitation date in your claim, don’t hesitate to reach out for professional guidance and support.
