Learning Outcomes
After studying this article, you will be able to: explain the main statutory limitation periods for contract and tort claims; identify the purpose and operation of pre-action protocols; assess the consequences of failing to comply with required pre-action steps; and apply these rules to practical scenarios when preparing or advising on a civil claim, as required for the SQE2 assessment.
SQE2 Syllabus
For SQE2, you are required to understand the initial procedural considerations in civil litigation before a claim is issued. In your revision, focus on:
- the calculation and significance of statutory limitation periods in contract, tort, and related actions
- the objectives and practical steps under pre-action protocols and the Practice Direction on Pre-Action Conduct
- the potential sanctions for non-compliance with pre-action requirements and protocols
- risk factors a solicitor should identify pre-action, including jurisdiction, merits, funding, and the real defendant
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- A client seeks to sue for a contract breach from events 7 years ago. What are the key limitation issues, and how should you advise?
- What is the purpose of a pre-action protocol, and what may follow if parties fail to comply?
- Which initial factors should a solicitor always assess before deciding to issue a civil claim?
- True or false: Failing to comply with a pre-action protocol can result in your client being unable to recover full litigation costs, even if successful.
Introduction
Before commencing court proceedings, solicitors must advise on and address several essential preliminary considerations. These include ensuring the claim is not time-barred, following the correct pre-action protocol and Practice Direction on Pre-Action Conduct, and weighing practical risks and funding issues. Failing to identify and act on these issues can result in a loss of claim, professional negligence, or adverse cost consequences.
Limitation Periods
Limitation periods restrict when a civil claim can be brought. Calculating the correct limitation date is essential for every case.
Key Term: limitation period
The statutory timeframe in which a claim must be commenced. A claim outside limitation may be struck out as 'statute-barred'.
Primary Limitation Rules
- Contract claims: 6 years from the date of breach (s.5, Limitation Act 1980).
- Simple tort claims: 6 years from date damage occurs (s.2, Limitation Act 1980).
- Personal injury: 3 years from the date of injury or knowledge of injury (s.11, Limitation Act 1980).
- Latent damage: For certain negligence claims involving property damage (but not PI), 6 years from damage, but also 3 years from discovery (s.14A, Limitation Act 1980), with a 15 year longstop.
- Deeds: 12 years from breach (s.8, Limitation Act 1980).
Key Term: statute-barred
A claim brought after expiry of the relevant limitation period. The defendant may raise a complete defence; the court will dismiss the claim.
Practical Application
Limitation is an absolute bar unless an exception (e.g., fraud, concealment, deliberate mistake) applies. Legal advisers who miss a limitation date may face a negligence claim.
Worked Example 1.1
A client instructs you on 2 January 2024 regarding a property damage event from 10 December 2017. The claim is in common law negligence but is not related to personal injury. Is it in time?
Answer:
The primary 6-year period begins from the date damage occurred: 10 December 2017. Limitation expires on 10 December 2023, so a claim started in 2024 is out of time and statute-barred, subject to any latent damage or exceptional circumstances.
Pre-Action Protocols and Practice Direction
Civil procedure rules require early exchange of information and documents to encourage settlement and minimise expense before litigation—litigation should be a last resort.
Key Term: pre-action protocol
A set of procedural requirements governing parties' engagement and information exchange prior to a particular type of civil claim.Key Term: Practice Direction – Pre-Action Conduct and Protocols
A procedural guide setting out the steps required pre-action where no specific protocol applies.
Protocols apply to personal injury, clinical negligence, professional negligence, construction disputes and more. If no protocol applies, the Practice Direction must be followed.
Protocol Aims
- Settle disputes without litigation if possible
- Ensure exchange of evidence and key information
- Encourage parties to consider ADR
- Identify issues and narrow the case for trial
Protocol Core Steps
- Letter of claim: Send to the defendant outlining the basis, facts, and remedy sought.
- Letter of response: Defendant responds, indicating admissions, denials, and reasons.
- Disclosure: Key documents are shared to clarify the dispute.
Litigation should not be commenced until reasonable attempts to follow the protocol are completed, except in urgent circumstances (e.g., imminent expiry of limitation, pressing injunction).
Key Term: alternative dispute resolution (ADR)
Any process (including mediation and negotiation) for resolving civil disputes outside court proceedings.
Consequences of Non-Compliance
The court may impose the following sanctions for unjustified failure to comply with applicable protocols or the Practice Direction:
- Stay (suspend) the claim until steps are completed
- Order the non-complying party to pay costs
- Order costs on an indemnity basis
- Adjust, reduce, or increase interest recovered
Worked Example 1.2
You issue court proceedings immediately, ignoring the relevant pre-action protocol. The claim proceeds to trial, and your client wins. The defendant applies to vary the costs order based on your non-compliance. What is the risk?
Answer:
The court may reduce or disallow your client’s recoverable costs or order you to pay some of the defendant’s costs, because you failed to follow pre-action protocol, in line with the CPR and Practice Directions.
Other Preliminary Considerations
A solicitor must assess several other key factors before commencing proceedings:
- Jurisdiction and merits: Is the English court the proper forum? Is there a valid cause of action?
- Correct parties: Identify the right claimant and real defendant, especially if involving companies, partnerships, or insolvency situations.
- Funding and costs: Assess how litigation will be funded (private, insurance, conditional fee, public funding), and inform the client of possible adverse costs.
- Evidence and risk: Are the facts provable? Are there documents or witnesses available and reliable?
- ADR suitability: Is it more appropriate to mediate or seek another dispute resolution method before issuing proceedings?
Key Term: cause of action
The legal basis for bringing a claim against a defendant, based on alleged facts.Key Term: indemnity costs
Costs awarded on a higher basis against a party, usually for misconduct or non-compliance.
Exam Warning
Failing to calculate limitation properly or identify the correct defendant can result in a lost case and potential professional negligence. Always check the facts and explain the risks to the client.
Revision Tip
Always document your file with your limitation calculation. Record why the client or a potential defendant was or was not chosen. This is commonly reviewed in the SQE2 practical evaluation.
Key Point Checklist
This article has covered the following key knowledge points:
- The significance and strict rules of limitation periods for different civil claims under the Limitation Act 1980
- The structure, purpose, and application of pre-action protocols and the Practice Direction
- Sanctions for non-compliance with required pre-action steps
- The essentials of early identification of proper parties, case merits, funding issues, and risk
- The strategic use of ADR and the expectation that litigation is a last resort
Key Terms and Concepts
- limitation period
- statute-barred
- pre-action protocol
- Practice Direction – Pre-Action Conduct and Protocols
- alternative dispute resolution (ADR)
- cause of action
- indemnity costs