Limitation Periods in Professional Negligence.
Limitation in Professional Negligence: Practical Litigation Strategy
Limitation periods can determine the success or failure of a professional negligence claim. Even the strongest case can be lost if issued outside the relevant time limit. Conversely, a well-advised defendant may avoid liability entirely by relying on a limitation defence. For both claimants and defendants, early attention to limitation is essential.
This article sets out the key practical considerations that arise in professional negligence litigation. Drawing on current authority and procedural best practice, it is intended to assist solicitors, legal advisers and business owners navigating these disputes.
Why Limitation is Often Decisive
The law of limitation in England and Wales is governed primarily by the Limitation Act 1980. In most cases, the expiry of a limitation period bars the right to bring an action. The defendant must plead it, but once raised it offers a complete defence.
In professional negligence, the facts surrounding breach, damage, and knowledge can be complex. Yet, time often runs before the client is even aware they have suffered loss. As such, a key tactical consideration in professional negligence litigation is whether the claim is already time-barred—or whether a longer period under section 14A applies.
What Are the Relevant Limitation Periods?
- Contractual claims against professionals (e.g. solicitors or accountants) must usually be brought within six years from breach.
- Tortious claims (e.g. for negligent advice) also have a six-year period, running from the date when actual damage is suffered.
- If the client did not know they had suffered damage, section 14A of the Limitation Act may apply, giving three years from the date of knowledge, subject to a 15-year longstop.
- Claims involving fraud or deliberate concealment may benefit from further extensions under section 32.
- Contribution claims (e.g. between professional defendants) must be brought within two years from the date of payment or judgment.
When Does Time Start to Run?
In contract, time starts at the point of breach. There is no need for the client to know about it. In tort, time runs from when the client suffers measurable damage. In many professional negligence cases, this is the moment when a financial loss crystallises (for example, entering into a flawed settlement or missing out on a better result).
Where the claimant did not know they had suffered harm, section 14A applies. It provides three years from the date when the claimant had, or ought reasonably to have had, knowledge of the material facts. The leading authority remains Haward v Fawcetts [2006] UKHL 9, which confirms that time does not start to run until the claimant is aware there is a real possibility that their loss was caused by the act or omission complained of. This position was recently affirmed in Witcomb v J Keith Park Solicitors [2023] EWCA Civ 326.
Standstill Agreements: Suspending the Clock
Where time is close to expiring but parties are in negotiation or need further time to prepare, a standstill agreement can be used to pause the clock. These agreements are contractual and must be drafted with precision.
Common terms include:
- Suspension of the limitation period from a defined date
- One party giving written notice to restart time running
- An agreement not to plead limitation in future proceedings
These arrangements should be finalised well before time expires. Courts will not extend time unless a clear agreement is in place.
Issuing the Claim: Timing and Process
A claim is deemed to be “brought” for limitation purposes when it is received by the court office, not when it is processed or sealed. In St Helens Borough Council v Barnes [2006] EWCA Civ 1372, the Court of Appeal confirmed that receipt of the claim form is determinative—even if the issuing date falls after the limitation deadline.
This principle has particular significance when issuing online or close to midnight. In Matthews v Sedman [2021] UKSC 19, the Supreme Court clarified that where a cause of action accrues at the first moment of a day, that day is included for the purpose of calculating limitation.
Practitioners using CE-File should also take note of Citysprint UK Ltd v Barts Health NHS Trust [2021] EWHC 2618 (TCC), which held that minor filing errors or paying a slightly incorrect court fee did not invalidate the issue of the claim form—provided the claimant acted in good faith.
Similarly, in Butters v Hayes [2021] EWCA Civ 252, the Court of Appeal held that the underpayment of a court fee did not mean a claim had not been “brought” for limitation
Pleading and Defending Limitation
Defendants must plead limitation if they wish to rely on it. Once pleaded, the burden shifts to the claimant to establish that the claim is in time. This may involve reliance on section 14A or 32, which must be clearly pleaded. A failure to do so may result in the claim being struck out.
In Trilogy Management Ltd v Harcus Sinclair [2016] EWHC 170 (Ch), the court held that where a claimant relies on section 32 (fraud or concealment), they must plead that the breaches were committed with knowledge that they were wrongful.
Late pleading of limitation may lead to claims of waiver. However, in Vilca v Xstrata Ltd [2018] EWHC 27 (QB), the High Court allowed a late amendment to plead limitation, holding that silence and delay in raising the issue did not amount to waiver. The judgment confirms that under the CPR, even late-stage limitation defences may be permitted where no prejudice is caused.
Strategic Use of Limitation Defences
A well-founded limitation defence can be decisive. Defendants may apply:
- To strike out a claim that is plainly time-barred
- For summary judgment on limitation grounds
- To have limitation tried as a preliminary issue
Strategically, raising limitation early may prompt early settlement or lead to a swift dismissal. Conversely, failing to raise it promptly could lead to adverse costs consequences.
Conclusion
Limitation is not just a procedural detail—it is a central issue in professional negligence litigation. Timing mistakes, uncertainty over knowledge, or delay in issuing proceedings can be fatal to a claim.
Carruthers Law advises on all aspects of limitation law. Whether you are pursuing or defending a professional negligence claim, we can provide precise and strategic advice to protect your position.
Contact Carruthers Law on 0151 541 2040 or email info@carruthers-law.co.uk