Limitation periods are used to limit the time a potential claimant has to bring a legal action against a third party. In the UK, limitation periods apply to a number of different types of action, and most are found within the 1980 Limitation Act (the 1980 Act).
The 1623 Limitation Act first introduced a six-year limitation period for all 'tortious claims' (those relating to a loss or harm against an individual). It was 300 years later, in 1954, that the limitation period for personal injury claims was shortened to three years. In 1975, statute began to allow the courts the discretion to disapply the limitation restrictions where it was found 'equitable' or fair to do so.
The 1980 Act consolidated the existing framework. Though subject to subsequent amendments, its provisions have remained largely consistent. For personal injury claims, most claims must be issued at the appropriate court three years from the date of injury or three years from the date of knowledge. Once three years has passed, any potential claim will be 'statute-barred', meaning a claimant will no longer be able to bring that legal action without the court's prior permission.
These restrictions on access to justice have been justified on various grounds. Most relate to the availability and quality of evidence. As time passes, witnesses' memories can fade or be distorted, while recorded evidence can be deleted, overwritten or lost. As a result, it is often considered beneficial to encourage claims to be brought quickly.
Additionally, there is a right to finality for a potential defendant. They are entitled to have peace of mind that they can no longer be subject to litigation centred on an incident that occurred many years before, and without access to now-lost evidence.
Importantly, the societal and defendant interests must also be balanced with the interests of the potential claimant. They must be allowed fair time to recover, handle their affairs, access legal assistance and begin the complex pre-action process before issuing legal proceedings in time to avoid being statute-barred. The period immediately after an incident can be deeply traumatic and unsettling, and to demand immediate action would be detrimental to access to justice.
Limitation periods for different types of legal action vary considerably. Most tortious claims still have a limitation period of six years (personal injury being an exception). 'Simple' contract breeches have a limitation period of six years from the date of the breach but, where executed by a deed, this can extend to twelve years. Periods differ internationally too. When reviewing the 1980 Act in 2001, the Law Commission found that "the lengths of the various periods are to a large extend a matter of historical accident".
The 1623 Limitation Act applied a simple and fixed six-year limitation period for all actions, likely to prevent defendants having to deal with stale claims. The 1954 shift to three years for injury claims was because "evidence is fresh in the minds of the parties and the witnesses" during this period. Although true, this statement has universal application and isn't specific to personal injury claims.
In 2001, the Law Commission published its recommendations for change. They include a uniform three-year limitation period across all causes of action and additional changes to the wording of the statute. It also consulted on a 'long-stop limitation period' for personal injury claims and the removal of judicial discretion, but both were dropped from its final recommendations. Despite the government accepting, in principle, the Law Commission's final proposals in 2002, by November 2009 all plans to implement the changes were dropped.
The government was asked about reviewing the three-year implementation period as recently as October 2021, to which the Secretary of State for Justice confirmed: "The government believes the current three-year time limit... is fair and proportionate given the flexibility built into the legislation". There are no foreseeable changes to the current framework, but it is important to question whether judicial discretion sufficiently balances claimant, defendant and wider societal interests.
"The practice of the courts has been regularly to exercise the discretion in favour of the [claimant] in all cases in which the defendant cannot show that he has been prejudiced by the delay" says Lord Hoffman in Horton v Sadler . The court in that case went on to explain that the plea of limitation allowed to the defendant is often considered a windfall by the courts, and one which is deprived fairly.
It is right to allow the courts discretion to disapply the limitation restrictions on the claimant where a fair trial is still possible and there is a reasonable explanation for the delay. However, unmetered judicial discretion does significantly weaken the possibility of finality for the defendant and the speed of action for society.
Perhaps it is time for the government to review the provisions of the 1980 Act and the impact on the balance of consumer interest and access to justice. Simplification, detailed justifications for the time periods and an analysis of the effectiveness and appropriateness of judicial discretion would all be welcome steps.
Author: Daniel Bates, the Association of Consumer Support Organisations (ACSO) secondee and trainee solicitor at Minster Law.