What are the time limits on making a Clinical Negligence claim?

In England and Wales, the law imposes strict time limits on anyone who wishes to bring a clinical negligence claim under the Limitation Act 1980.

The main reason for this is to prevent any potential defendant(s) from facing legal proceedings for actions that they performed many years earlier. This deadline also reflects that evidence and witness recollections can be lost or become less reliable over time.

In this article, we examine the standard time limits imposed on those wishing to make a claim, as well as instances where exceptions may apply.

What is the usual time limit on making a Clinical Negligence claim?

The standard time limit for a Clinical Negligence claim is three years. The three-year timer starts running from the date that the alleged negligence took place – or, from the date that the injured party discovered or would be expected to have discovered that a defendant caused them a ‘significant’ injury through an action or a failure to act.

Although there are some exceptions to the three-year rule, which are explored below, we would always advise a potential claimant to seek legal counsel at the earliest possible opportunity.

Unfortunately, if this deadline is missed, the claim is likely to fail except in exceptional circumstances. This is known as the claim becoming ‘statute barred’.

What are the exceptions to the three-year time limit?

There are two key exceptions to the three-year rule. These are for children (under the age of 18) and ‘protected parties’ – defined as those who lack mental capacity to conduct their own legal proceedings under the Mental Capacity Act 2005.

For children, the three-year timer only starts running from their 18th birthday. For practical purposes, this means that the deadline to bring a claim is their 21st birthday, even if the negligent treatment took place many years earlier.

In the event that the negligence caused a significant injury before the child’s 18^th birthday but this is only discovered after their 18th birthday, the normal rules apply and the three-year timer will begin from the later date instead.

For those lacking mental capacity, if they were incapacitated when the negligent action took place, the three-year timer will only start running from the date that they regain mental capacity. Should the individual never regain capacity, the three-year deadline is effectively paused indefinitely.

However, if the protected party only became incapacitated at a later date, this exception does not apply and the three-year timer will commence at the usual time.

When does the timer on making a claim stop?

The three year timer is stopped only when the claim is ‘issued’ or ‘brought’ in Court. This happens when a document known as a Claim Form is received and issued at a court office. This document identifies the parties to the claim, outlines the nature of the dispute and initiates civil legal proceedings.

This marks the formal beginning, rather than the end, of the claim – and any claimant should expect that their case may continue for several more months or years if it progresses to trial. However, many Clinical Negligence claims are concluded or reach an out-of-court settlement agreement long before trial becomes necessary.

If settlement is agreed before the limitation date, then the matter is considered to be concluded. The agreed sum will be paid by the defendant to the claimant, rendering the limitation deadline irrelevant as further claims cannot be brought for the same negligent treatment.

What should I do if I’m considering making a clinical negligence claim?

At Price Slater Gawne, we always advise clients who wish to make a claim to do so as soon as possible once they suspect negligent treatment. This reduces the risk of the three-year deadline being missed and affords them the peace of mind of knowing that their procedural position will be protected.

It is worth noting that the Court cannot extend the limitation deadline before it has expired and has only limited power to do so once it has passed.

For this reason, if you’re interested in bringing a claim forward, it’s important to seek expert advice at the earliest opportunity. Contact our experienced Clinical Negligence team today on 03333 058375 or email [email protected] for a free, no obligation discussion to explore your options. We’re here to help.