Introduction
Limitation is a legal term that describes the period of time that a person has to issue a claim in the Court. This is not the same as sending a letter before action or a letter of claim over to the opposing party. Different limitation periods apply to different types of cases.
When does the limitation period start to run?
The general rule is that in dental claims, the 3 year time runs from the date of the event that causes you any damage or harm.
However, in some cases, such as dental claims and other clinical negligence cases it is not possible to know the specific date of the event that caused you harm as it can be blurred, in these cases the principal of “Date of Knowledge” applies.
Date of Knowledge
Your Date of Knowledge is the date that you knew or ought to have known that you had suffered damage or harm as a result of somebody else’s negligence and that you could bring an action against that person.
For example in many dental claims, this become apparent when you see a different dentist who then tells you that you may have a problem. Date of knowledge can be a very grey area.
This concept is particularly difficult to understand and you should always seek legal advice on this point.
Minor’s cases (under 18’s)
A minor is somebody who is under the age of 18. In a case that involves a minor the limitation period starts from when that person is 18 and so expires on their 21st birthday.
What happens if the Limitation Period is missed
If a claim is not issued in the Courts, prior to the expiration of the primary Limitation period, then a Claimant will be prohibited from bringing a claim, and in all likelihood the claim will fail.
The Defendants will, more than likely, refuse to negotiate and settle any claim.
Put simply, you lose your right to bring a claim.
Can the limitation period be extended?
Limitation can be extended in two ways:
Firstly, we can ask the opposing party to consent not to raise limitation as an issue and this happens in the majority of dental cases.
Secondly, we can make an application to the Court under s33 of the Limitation Act to ask the Judge to allow you to bring a claim out of time. This is not an ideal scenario.
Procedure upon issue of proceedings
In order to issue a claim, this called protective proceedings, as it is protecting your right to bring a claim. A claim form is required to be sent to the court with the appropriate fee.
The court will issue the claim by sealing the claim form and returning it for service. The time limit as regards limitation is then halted.
Once the claim has been issued, the court rules give us 4 months in which to send it over to the other side with all of the other necessary court documents such as the particulars of claim, the schedule of loss, the expert evidence along with a notice of funding.
Once all of these documents have been served upon the other side, then the claim will commence proper and the court will set a timetable for events.
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