What do I do if my solicitor misses a limitation date?

There are strict time limits for bringing legal action. One of the first matters to consider when investigating a claim is whether you are still within time to bring a claim. This is known as “Limitation”. If your solicitor misses a limitation date and you are no longer entitled to pursue your claim, then you may well be able to pursue a professional negligence claim against your legal adviser for the loss you have suffered in being able to pursue your original claim.

When does time start to run for your claim?

The limitation clock usually starts ticking on the day on which your right to a claim starts.
Professional negligence claims can arise where a professional has a contractual duty and/or statutory duty and/or tortious duty to you.
Whilst we do not propose to set out each and every limitation period for each and every type of claim, broadly, most contractual or tortious claims have the following limitation periods (please note these limitation periods do not apply to all claims, including personal injury claims):

1. In most contractual claims, you will have six years from the date of the breach of contract.
2. In most tortious claims you will have six years from the day on which the cause of action occurs, by that we mean, you will have 6 years from the date that the damage is suffered.
3. In tortious claims, you may also have three years from the date of knowledge.

A professional negligence claim in contract will arise where a professional breaches specific express or implied terms in a contract between you and the professional. However, even where a contract does not exist, it may be possible for you to bring a claim against a professional in tort. A claim in tort will arise where a professional fails to perform their responsibilities to the required standard or breaches a duty of care. For example, a financial adviser may have failed to provide you with proper advice on tax relief, or a surveyor may fail to identify significant structural problems with a property.

For limitation purposes, a claim is “brought” when the court receives a claim form, not the date the claim is issued.

What can a defendant do if you have missed the limitation period?

If the limitation period has expired, the defendant, is likely to have a comprehensive defence to a claim (unless a valid exception can be shown such as concealment) if a defendant can show that your claim is out of time, they may chose to:

1. Make an application under the Civil Procedure Rules (“CPR”) to have your claim struck out.
2. File a defence to your claim and then seek, normally at case-management stage, to have the limitation point tried as a preliminary issue, with a view to obtaining summary judgment.

If the defendant pleads to the defence of limitation, the burden is on you to prove that time has not expired.

Before issuing a claim at court, parties will need to comply with any relevant Pre-Action Protocol set out in the Civil Procedure Rules. The protocols are a set of steps that must be followed before a claim is issued at court. The aim of the protocols is to notify all parties involved of the potential claim, the allegations made and to allow for a response, identifying as many issues as possible with the objective to attempt to resolve the issues without the need for court involvement.

If there is insufficient time to comply with the relevant protocol due to a looming limitation date, a claimant should immediately contact the defendant to see if they will agree to enter into a standstill agreement. A standstill agreement is an agreement between the parties that time will effectively stand still for the purposes of limitation, whilst the parties investigate the matter further. The claimant should then look to comply with any relevant protocol during the standstill period and before issuing proceedings.

So, what do you do if your solicitor has missed limitation:

(a) Take urgent legal advice

It is recommended that you seek advice at the earliest possible opportunity, any delay in the initial stages may affect your actions and decisions as the matter progresses. Seeking advice at the outset will provide you with Information which will allow you to understand

1. The merit of any claim you may have; the strengths and weaknesses of the your claim(s) against your former solicitor;
2. Proportionality issues ; if the loss claimed is of a relatively low value, it could be the case that pursuing any action would be disproportionate to the value of the overall claim. If parties are likely to incur substantial costs in bringing and defending that claim which could outweigh the overall value;
3. The Realistic value of your claim; taking into account the losses that you may seek to recover from your former solicitor;
4. The best strategy moving forward; advice as to how to progress the matter, strategies moving forward and the likely timescales involved.

(b) Consider pursuing a professional negligence claim

Professional negligence occurs where a professional fails to perform his/her responsibilities to the standard that is reasonably expected and that negligence results in you incurring a financial loss. If a limitation period has been missed, then it is likely this would be considered to be negligent.

There are three basic requirements that must be proven on a balance of probabilities in order to pursue a claim for professional negligence:

1. The solicitor either owed a duty (either in contract or tort or both).
2. The solicitor has breached that duty owed; and;
3. That breach has caused a loss.

Before issuing claim, parties should ensure that they have carried out the actions set out in the Pre-Action Protocol for Professional Negligence (unless limitation is a serious issue – please see above).

The Pre-Action Protocol for Professional Negligence (“the Protocol”) is set out in the Civil Procedure Rules (“the CPR”). The Protocol was designed to set out a code of good practice for parties pursuing court action. The Protocol sets out the steps parties should follow before issuing court proceedings. The court places great weight on the Protocol and, if parties deliberately fail to adhere to its rules, they the court can award costs against the party that is seen to have deliberately failed to comply with the court rules.

The Protocol makes it clear that prior to issuing proceedings you should prepare a detailed Letter of Claim to send to the solicitor. This letter should set out the following information in relation to your claim;

• the identity of any other parties involved in the dispute or a related dispute;
• a clear chronological summary of the facts on which the claim is based. Key documents should be identified, copied and enclosed;
• any reasonable requests for documents relevant to the dispute which are in your solicitor’s possession;
• the allegations against your solicitor;
• an explanation of how the alleged negligence or error has caused the loss claimed;
• an estimate of the financial loss you have suffered and how it is calculated;
• confirmation of whether or not an expert has been appointed;
• a request that the Letter of Claim is immediately referred to the solicitor’s insurers, where applicable.

The Letter of Claim should be acknowledged in within 21 days of receipt and a Letter of Response should be received within 3 months of the letter of acknowledgement.

The Letter of Response should reasonably answer the allegations set out in the letter of claim, setting out whether these allegations, if any are admitted and clearly detail which allegations are admitted and which are denied.

The Protocol also sets out the aims of any Letter of Settlement as parties are encouraged to engage in forms of Alternative Dispute Resolution (“ADR”) before issuing court proceedings.

Usual forms of ADR include (but are not limited to):

1. Mediation.
2. Arbitration.
3. Early neutral evaluation.
4. Adjudication

Mediation involves a third party facilitating a resolution, parties discuss their disputes with the aid of an impartial third party who is instructed to assist parties in reaching a settlement.

In arbitration, parties present their arguments and evidence to a dispute resolution practitioner (an arbitrator). The arbitrator then makes a determination on the basis of the arguments and evidence presented.

Early neutral evaluation (“EVE”) involves the appointment of an impartial evaluator who will assess or evaluate the merits of the claim and their views on the likely outcome at trial. The evaluator’s views are presented on a without prejudice basis and have no binding effect.