Limitation Issues

Limitation Issues – When is a Claim Form Deemed Issued?

The following article by 9 Gough Square Barrister, Simon Brindle, was first written in November 2013 and proved popular when it appeared in Issue 7 of Inside Law magazine. So popular in fact, that we thought it worth bringing to the fore once again;

Many claims are now being issued out of the Northampton (CCMCC) or the Salford (CCMCC) County Courts.  When ‘limitation’ is looming large in a claim, the process can be stressful and full of uncertainty, to say the least.  For example, the Court is unable to inform litigants if it has even received the claim form to be issued for a week to 10 days after it was sent, and there are many stories of claim forms being returned unissued for minor, or sometimes imagined, transgressions.

The purpose of this article is to provide guidance on when a claim form is issued for the purposes of the Limitation Act 1980.

 

The Limitation Act 1980

As all practitioners will be aware, the Limitation Act 1980 ‘gives the ordinary time limits for bringing actions.’  Those ‘ordinary’ time limits can then be ‘subject to extension or exclusion in accordance with [Part II of the Act].’ (section 1 of the 1980 Act).

Part I of the Act sets out the primary limitation period for actions, effectively by dictating a period after which a claim ‘shall not be brought’.  So, for example, ‘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.’ (section 2 of the 1980 Act).

Part II then sets out various exceptions to the ‘primary limitation period’.

So, when considering limitation issues, practitioners need to bear two considerations in mind:

  1. When does a ‘cause of action accrue’ – so that ‘time starts running’; and
  2. What counts as the ‘bringing of an action’ – so that it can be said the claim is ‘brought’ within the relevant limitation period and ‘time stops running’?

When and how a cause of action accrues is, of itself, a topic worthy of a whole book.  It is beyond the scope of this article to consider the topic in any detail.

Instead, I will concentrate on when a claim is ‘brought’.

When is a Claim ‘Brought’ for the Purposes of the Limitation Act

There are two scenarios to consider.  The first is an ‘originating claim’ (my phrase) brought by, say, an injured worker for damages for personal injury or an aggrieved party in a contractual dispute.  This is the type of claim the vast majority of Claimants bring, and the scenario dealt with in this article.

The second scenario is ‘new claims’ brought in existing proceedings.  Examples of this type of claim are: Third Party Proceedings; the additional or substitution of new causes of action; the addition or substitution of a new party.  I will not deal with these.  In the main, ‘new claims’ are deemed to have been commenced on the same date as the originating claim.  The notable exception being Third Party Proceedings, which are deemed to have been brought on the date those proceedings were commenced.  Practitioners interested in this area should consider further section 35 of the 1980 Act.

Originating Claims

The 1980 Act does not define when a claim is ‘brought’.  At first sight, this omission seems rather strange.  It has, however, been left to the rules of Court to determine when a claim is ‘brought’.

CPR 7.2 states that,

(1)    Proceedings are started when the court issues a claim form at the request of the Claimant;

(2)    A claim form is issued on the date entered on the form by the Court.

The failure to use the word ‘brought’ by the rule makers is unfortunate.  However, the intention is clear.  The claim is ‘brought’ when it is issued because that it when proceedings are ‘started’.  So, ostensibly, a claim is ‘brought’ on the day it is issued by the Court and ‘time stops running’ then.

However, there is an exception to this in cases where limitation is an issueParagraph 5 of Practice Direction 7A states, so far as relevant:

5.1   …where the claim form as issued was received in the court office on a date earlier than the date on which it was issued by the court, the claim is “brought” for the purposes of the Limitation Act 1980 and any other relevant.

5.2   The date on which the claim form was received by the court will be recorded by a date stamp either on the claim form held on the court file or on the letter that accompanied the claim form when it was received by the court…

So, a claimant is ‘safe’ if the claim form was not issued in time, provided it was received in the Court Office before ‘time ran out.’

But does the court need to date stamp the claim form or covering later for time to stop running?

On one reading of the practice direction, it does.

However, in Barnes v St Helens MBC [2006] EWCA Civ 1372, Tuckey LJ gave guidance on the meaning of ‘brought’.  He stated that a claim is brought for the purposes of the 1980 Act when the ‘claimant ‘brings’ his claim form to the court with a request that it be issued’ to the Court Office.  There is no ‘transaction’ that must take place; all the Claimant need do is a unilateral act: the claim form simply has to be ‘delivered to the Court’.

It is therefore the unilateral act of a ‘request’ to issue the claim form that is of key significance.   That request need not be acknowledged by the Court.  Provided the request is made within the limitation period, the Defendant will have no ‘limitation defence’.  Since the ‘request’ is made when the claim form is received by the Court, the stamping of the claim form is irrelevant.

So, what happens if the Court loses the claim form and no stamp applied?

That happened in Page and another v Hewetts Solicitors and another [2012] EWCA Civ 805.  When hearing a second appeal against the grant of summary judgment in the favour of the Defendants, the Court of Appeal held that a party should not be prejudiced by the shortcomings of the Court (followed the principles established in Aly v Aly (1984) 81 LSG 283 and Riniker v University College London (The Times, April 17, 1999) in the process).  It was held that, if the party can prove on the balance of probabilities that they delivered the claim form with a request that it be issued within the limitation period, the proceedings would have be ‘brought’ in time.

Note, though, that the ‘exception’ only applies to issues to be determined under the 1980 Act.  This was emphasised by the Court of Appeal in Salford City Council v Garner [2004] EWCA Civ 364.  In that case, the issue was when proceedings had been begun for the purposes of the Housing Act 1996.  The Court held that that was the date of issue of the claim form, not the date the claim form was received by the Court.

It is good practice, therefore, for practitioners to keep a careful record of the date on which claim forms are sent to the Court for issue.  If limitation is likely to be an issue, I would suggest that the claim form be sent recorded delivery or similar.  However, provided it can be demonstrated that the claim form was received by the Court within the limitation period, that will be sufficient for the claim to have been ‘brought’ in time.

About The Author

Simon Brindle, 9 Gough SquareSimon Brindle is a Barrister with 9 Gough Square, practicing in the fields of personal injury and clinical negligence