Before you dash off to court and issue proceedings, there's important groundwork to cover. Two things can completely derail a claim before it even starts: (1) missing the limitation deadline, and (2) failing to follow pre-action protocols. Get these wrong, and you could face professional negligence claims, costs sanctions, or have your claim struck out entirely.
This topic covers: LIMITATION PERIODS (how long you have to start a claim), PRE-ACTION PROTOCOLS (what you must do before issuing proceedings), GOVERNING LAW (which country's law applies), and WELSH LANGUAGE REQUIREMENTS (for proceedings in Wales). These are fundamental issues you must consider at the very outset of any dispute.
Examiners love testing: (1) Calculating when a limitation period expires and whether it has been extended by acknowledgement or part payment. (2) The consequences of failing to follow a pre-action protocol. (3) Determining which law applies under Rome I and Rome II. (4) The date of knowledge test for personal injury claims.
Limitation periods set time limits for starting court proceedings. Once time runs out, the claim is 'statute-barred' - the defendant can raise it as a complete defence and the claim will be struck out. Missing a limitation date is professional negligence territory. The Limitation Act 1980 (LA 1980) sets the main time limits for civil claims.
The primary purpose of limitation periods is to ensure that claims are brought within a reasonable time, while evidence is still available and memories are fresh. It promotes certainty and finality in legal affairs, preventing the threat of potential claims from hanging over people indefinitely.
Limitation dates are ABSOLUTE. The court has very limited discretion to extend them (s.33 LA 1980). If a claim is issued after the limitation period has expired, it will be statute-barred unless an exception applies. Calendar diarise limitation dates and check them regularly.
| Claim Type | Time Limit | Statute | Start Date |
|---|---|---|---|
| Simple Contract | 6 years | LA 1980 s.5 | Date of breach |
| Contract under seal | 12 years | LA 1980 s.5 | Date of breach |
| Tort (general) | 6 years | LA 1980 s.2 | Date damage occurred |
| Personal Injury | 3 years | LA 1980 s.11 | Date of knowledge (or injury) |
| Latent Damage | 3 years | LA 1980 s.14A | Date of knowledge (15yr longstop) |
| Defamation | 1 year | Defamation Act 2013 s.5 | Date of publication |
| Recovery of Land | 12 years | LA 1980 s.15 | Date right of action accrued |
| Human Rights Act claim | 1 year | HRA s.7(5) | Date of act (with court discretion) |
An action founded on a simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued. For most contracts, the cause of action accrues on the date of breach (when the other party failed to perform their obligations).
For simple contracts (most commercial contracts, services agreements, etc.), the limitation period is 6 years from the date of breach. This means from when the other party failed to do what they promised. For example, if goods were delivered on 1 January 2024 but payment was never made, the limitation period for claiming the debt expires on 1 January 2030.
Contracts under SEAL (now rare but still possible) have a 12-year limitation period. This is a historical distinction - sealed instruments were treated more formally. Modern contracts rarely use seals, but you might encounter them in property contexts or older documents.
Watch for CONTINUING breaches vs ONE-OFF breaches. A continuing breach (like ongoing failure to pay rent under a lease) gives rise to a new cause of action each day/period. But a one-off breach (like failing to deliver goods on a specific date) starts the clock running once and doesn't restart.
An action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued. For most torts, the cause of action accrues when damage is sustained (not when the negligent act occurred).
For most tort claims (negligence, nuisance, trespass, etc.), the limitation period is 6 years from when damage is SUSTAINED. This is different from when the negligent act happened. For example, a builder might construct a defective wall in 2018, but if the wall doesn't crack until 2022, the 6-year clock starts in 2022 when the damage occurs.
For limitation purposes, 'damage' means compensatable damage - something you can claim for. Mere upset or inconvenience isn't enough. There must be recognisable loss or injury. In pure economic loss cases, this can be tricky - the damage is often when the loss becomes quantifiable or discoverable.
The period for personal injury claims is 3 years from: (a) the date on which the cause of action accrued, or (b) the date of knowledge (if later) of the person injured. For minors (under 18), time doesn't run until they turn 18. For those lacking capacity, time doesn't run while capacity is lacking.
Personal injury claims have a SHORTER limitation period - only 3 years. This includes clinical negligence, road traffic accidents, accidents at work, and any other claims involving personal injury. The clock starts from the 'date of knowledge' - when the claimant KNEW (or reasonably should have known) that they had suffered a significant injury, it was attributable to an act or omission, and the defendant's identity.
| Element | What it Means |
|---|---|
| Significant Injury | Injury serious enough to justify legal action |
| Attributable Act | Knowledge that the injury was caused by someone else's act or omission |
| Defendant Identity | Knowing who is responsible (or sufficient info to identify them) |
| Knowledge of all Facts | Including knowledge that damage was significant and attributable |
[1997] 1 All ER 570
The House of Lords held that a claimant's 'date of knowledge' is when they knew the KEY facts, not every single detail. The test is objective - what a reasonable person in the claimant's position should have known, not what they actually knew.
For children (under 18), limitation doesn't start running until they turn 18, giving them until 21 to claim. For protected parties (those lacking mental capacity), time doesn't run while they lack capacity. However, if a protected party recovers capacity and then waits 3 years, they're time-barred. If they never recover capacity, there's no time limit.
Some injuries don't appear until years later - think asbestos-related diseases, structural defects in buildings, or environmental pollution. This is 'latent damage' - damage that exists but isn't discoverable until later. Section 14A provides special rules for these cases.
For latent damage cases: (1) The 3-year period runs from the date of knowledge (as in s.11). (2) There is a LONGSTOP of 15 years from when the damage occurred, after which NO claim can be brought regardless of date of knowledge. This 15-year longstop cannot be extended.
The 15-year longstop is harsh. Even if you couldn't possibly have discovered the damage within 15 years, you're time-barred. For example, if a building was defectively constructed in 2010 but the defect only becomes apparent in 2028, a claim in 2028 would be statute-barred (15-year longstop expired). This is a key SQE1 exam point.
Examiners love testing the 15-year longstop. Remember: (1) The date of knowledge could extend the 3-year period, but (2) The 15-year longstop is ABSOLUTE - no exceptions. A claim after 15 years is dead, even if the claimant only just discovered the damage.
An action for defamation must be brought within one year from the date of publication. The court may extend this period if there is a good reason, but this is discretionary and not commonly granted. Publication date is when the statement was first published.
Defamation claims have the SHORTEST limitation period - just 1 year from publication. Publication means when the defamatory statement was made available to others. For online articles, each 'publication' (upload, access, republication) potentially starts a new limitation period, but this is complex and still developing in the courts.
The limitation clock can be restarted by ACKNOWLEDGEMENT of the debt or right, or by PART PAYMENT. If either occurs, a new limitation period starts running from that date. This can save a claim that would otherwise be time-barred, or it can create problems if your client accidentally acknowledges an old debt.
If a person acknowledges a debt or acknowledges any right in respect of which the action exists, a new limitation period runs from the date of acknowledgement. The acknowledgement must be: (1) in writing, (2) signed by the debtor, and (3) clear and unambiguous.
Acknowledgement must be IN WRITING and SIGNED by the debtor (or their agent). It must be clear and unequivocal - saying 'I'll see what I can do' isn't enough, but 'I owe you £5,000 and will pay when I can' is. The acknowledgement can be in a letter, email, or even text message - as long as it meets the requirements.
Payment on account of a debt or of any liquidated demand, before the expiration of the limitation period, extends the period for recovering the balance of the debt or demand. A fresh 6-year period runs from the date of payment.
Part payment works for DEBTS and LIQUIDATED DEMANDS (claims for a fixed sum). It doesn't work for unliquidated damages (like personal injury or general tort claims). The payment must be made BEFORE the limitation period expires, and must be genuinely on account of the debt - not a gift or for another reason.
Remember: (1) Acknowledgement must be in writing AND signed. (2) Part payment only works for debts/liquidated demands. (3) Either restarts the FULL limitation period from the date of acknowledgement/payment. (4) If limitation has already expired, acknowledgement/part payment CANNOT revive the claim.
Generally, limitation periods are absolute. However, the court has discretion to extend time in PERSONAL INJURY cases under s.33, and there are special provisions for those with disabilities under s.28. These exceptions are narrow and shouldn't be relied upon.
In personal injury cases, if it would be equitable to do so, the court may disapply the limitation period. Factors include: length of delay, reasons for delay, extent of prejudice to the defendant, effect of delay on evidence, and the conduct of the parties after the cause of action arose.
Section 33 only applies to PERSONAL INJURY and DEATH claims. It does NOT apply to contract claims, general tort claims, or property claims. Even for personal injury, the discretion is exercised sparingly. Long delays are very difficult to justify.
Before issuing court proceedings, parties are expected to exchange information and consider settlement. This is called 'pre-action conduct'. The purpose is to encourage early settlement, clarify issues, and potentially avoid court altogether. Failure to follow pre-action protocols can lead to costs sanctions, stays of proceedings, or adverse inferences at trial.
The Practice Direction sets out the expected standards of pre-action conduct. Parties should: exchange sufficient information to understand each other's position, consider ADR (especially mediation), and settle if possible. The letter before claim should set out the claim clearly, include key documents, and propose ADR.
The letter before claim is your formal notification to the prospective defendant that you have a claim against them. It sets out the basis of your claim, what you're seeking, and gives them an opportunity to respond and settle. A good letter before claim can lead to early settlement and avoid court altogether.
Keep the letter before claim professional but not aggressive. The goal is to SETTLE, not to start a fight. Include enough detail to allow the defendant to properly assess the claim, but don't overload them with documents. Mention ADR explicitly - courts take this seriously.
Some types of claims have their own specific pre-action protocols with detailed steps. These protocols are more prescriptive than the general Practice Direction. Common protocols include: Construction and Engineering, Professional Negligence, Personal Injury, Clinical Negligence, Housing Disrepair, and Debt Claims.
| Protocol | Key Features | Time to Respond |
|---|---|---|
| Construction | Letter of claim, response, meeting, expert review | 14 days (extendable) |
| Professional Negligence | Letter before claim, detailed investigation | 21 days (extendable) |
| Personal Injury | Protocol for low-value and fast-track claims | 21 days |
| Clinical Negligence | Letter of claim, medical records exchange | 14 days to acknowledge |
| Housing Disrepair | Specific schedule of condition required | 14 days (extendable) |
| Debt Claims | Standard reply form for individuals | 14 days for reply |
The Construction and Engineering Protocol requires a detailed letter of claim followed by a response, with a mandatory meeting if the claim is disputed. It's designed to identify issues early, potentially using a neutral evaluator. Given the technical nature of construction disputes, this structured approach helps narrow the issues before proceedings.
For professional negligence claims (against solicitors, accountants, surveyors, etc.), the protocol expects a thorough letter before claim setting out the alleged negligence and losses. The professional has 21 days to respond (extendable by agreement). The protocol encourages early disclosure of relevant documents and expert reports.
Personal injury and clinical negligence claims have specific protocols designed for fast-track and low-value cases. For clinical negligence, there's a detailed process including obtaining medical records, a letter of claim, and often a condition that the claimant obtains independent medical evidence before proceedings.
Housing disrepair claims (tenants suing landlords for repairs) require a schedule of condition and a pre-action protocol letter. Landlords have a right to inspect the property. These claims are often fast-tracked given the impact on living conditions.
Debt claims have a simplified protocol using standard forms. Claimants complete a form, and defendants can use a standard reply form. This is designed for straightforward debt recovery where liability isn't really in dispute - the issue is non-payment.
If a party fails to follow pre-action protocol or the Practice Direction without good reason, the court has powers to sanction them. The court will look at whether the non-compliance caused delay, additional costs, or prevented settlement. Sanctions can include costs orders, stays of proceedings, and adverse inferences.
CPR rule 3.1(4)
The court has wide powers to stay proceedings where parties have not complied with pre-action protocols. The court can also order a party at fault to pay costs that the other party has incurred, and can draw adverse inferences from failure to follow proper procedures.
The court may accept NON-COMPLIANCE if there's good reason: urgent injunction needed, limitation period about to expire, or the defendant is evading service. But 'we couldn't be bothered' or 'we wanted to issue quickly' are NOT good reasons. If you need to jump pre-action steps, document your reasons carefully.
When a dispute has international connections (foreign parties, events abroad, or contracts with foreign elements), you need to determine which country's law applies. Rome I Regulation determines the governing law for CONTRACTS. Rome II Regulation determines the governing law for TORTS. Getting this wrong is a disaster - you might prepare your case using the wrong law.
Rome I determines which country's law governs a contract. The DEFAULT RULE is PARTY AUTONOMY - parties can choose the governing law in their contract. If they don't choose, Rome I provides default rules: for contracts for sale of goods, the law of the seller's country applies; for services, the law of the service provider's country; for property, the law of where the property is located.
Rome II determines which country's law governs tort claims (like negligence, nuisance, defamation). The DEFAULT RULE is the law of the country where the DAMAGE OCCURS. So if someone is injured in France by a British driver, French law likely applies. There are exceptions for product liability, unfair competition, and defamation.
For contracts: look for a GOVERNING LAW CLAUSE first. If none, apply Rome I defaults. For torts: Rome II usually applies the law where damage occurred, but check for exceptions (especially for product liability and defamation). The question will usually signal when this is an issue.
For proceedings in Wales, parties have the right to use the Welsh language. The Welsh Language Act 1993 and the Welsh Language (Wales) Measure 2011 give people the right to speak Welsh in court. The Practice Direction on Welsh Language in Civil Proceedings sets out how this works in practice.
If your client prefers to communicate in Welsh, respect that right. But be practical: if the other parties and court don't speak Welsh, you'll need interpreters and translations. Consider the costs implications and whether it's proportionate for the case value.
Pre-action failures are one of the most common sources of costs sanctions in civil litigation. Get the basics right: check limitation, send a proper letter before claim, follow the relevant protocol, consider ADR, and document everything. It's better to spend time on pre-action than to explain to your client why they're paying the other side's costs.