Civil claim procedures - Preliminary considerations (limitat...

Learning Outcomes

This article covers preliminary civil claim procedures—limitation periods, pre-action protocols, and service deadlines—addressing:

• The principal statutory limitation periods for contract, tort, personal injury, latent damage, deeds, defamation, and contribution claims
• When time starts to run and how to calculate expiry dates across common claim types
• Exceptions, suspensions, and discretion (fraud/concealment, mistake, minors/protected parties, and s.33 for PI claims)
• Protective issuing and strict service deadlines under CPR r.7.5 and r.7.6
• The purpose and operation of pre-action protocols and the Practice Direction on Pre-Action Conduct
• Core protocol steps and proportionality (letters of claim/response, disclosure, experts)
• When pre-action disclosure under CPR r.31.16 is appropriate and the criteria for orders
• Sanctions for non-compliance (stays, adverse costs including indemnity basis, interest adjustments) and integrating ADR pre-action
• Applying these rules to realistic scenarios when preparing or advising on a civil claim for SQE2

SQE2 Syllabus

For SQE2, you are required to understand preliminary civil claim considerations, including limitation periods, pre-action protocols, and related pre-action risks, with a focus on the following syllabus points:

• 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.

1. 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?
2. What is the purpose of a pre-action protocol, and what may follow if parties fail to comply?
3. Which initial factors should a solicitor always assess before deciding to issue a civil claim?
4. 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.

The Civil Procedure Rules (CPR), introduced following the Woolf Reforms, embed the overriding objective: courts must deal with cases justly and at proportionate cost, including saving expense, ensuring parties are on an equal footing, and enforcing compliance with rules, practice directions and orders. Pre-action conduct and protocols sit within this framework and are designed to encourage early exchange of information, focused dispute resolution, and serious consideration of ADR. Litigation is expected to be a last resort.

Key Term: overriding objective
The CPR’s core principle requiring the court to deal with cases justly and at proportionate cost, including enforcing compliance with rules and practice directions.

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'.

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.

Primary Limitation Rules

• Contract claims: 6 years from the date of breach (s.5, Limitation Act 1980).
• Simple tort claims: 6 years from the date damage occurs (s.2, Limitation Act 1980).
• Personal injury: 3 years from the date of injury or date of knowledge (s.11, Limitation Act 1980).
• Latent damage (non-PI negligence): 6 years from damage, but also 3 years from date of knowledge (s.14A, Limitation Act 1980), with a 15-year longstop (s.14B).
• Deeds: 12 years from breach (s.8, Limitation Act 1980).
• Defamation and malicious falsehood: 1 year (s.4A, Limitation Act 1980, subject to limited discretion).
• Contribution claims: 2 years from judgment, award, or settlement fixing liability (s.10, Limitation Act 1980).

When Time Starts to Run

In contract, the clock starts at breach (not when loss is suffered). In negligence, the cause of action accrues when damage occurs; duty and breach alone are insufficient. For personal injury, the three-year period runs from the accident or the claimant’s date of knowledge (whichever is later). “Date of knowledge” is defined by s.14 LA 1980 and includes awareness of the injury, that it was attributable to the alleged act or omission, and the identity of the potential defendant.

Key Term: date of knowledge
For PI and latent damage, the date when the claimant first knew the material facts about the damage/injury, causation, and the identity of the defendant (or could reasonably have known), triggering the knowledge-based limitation period.

Exceptions, Suspension, and Discretion

• Fraud, concealment, mistake: Where the action is based on fraud, or any fact relevant to the claim has been deliberately concealed, or relief is sought from the consequences of a mistake, time runs from the date of discovery or when the claimant could with reasonable diligence have discovered it (s.32).
• Minors and protected parties: Time does not run while the claimant is under 18 or lacks capacity under the Mental Capacity Act 2005 (s.28). The limitation period begins on attaining majority or regaining capacity.
• Fatal accidents: Actions under the Fatal Accidents Act 1976 have a 3-year limit from death or the date of knowledge of the person for whose benefit the action is brought (s.12).
• Personal injury discretion: Courts may disapply limitation for PI and FAA claims if equitable (s.33). The court weighs prejudice to the parties, the length and reasons for delay, the extent to which evidence is likely to be less cogent, and the conduct of the defendant post-incident.
• Acknowledgment and part payment: For certain debt claims, a written acknowledgment or part payment can reset the limitation clock (s.29–s.30).

Key Term: standstill agreement
A contractual agreement by the parties to suspend or extend limitation for a defined period, used to allow negotiations to continue. It does not alter statutory limitation but prevents a party relying on it contractually; it must be carefully drafted and time-limited.

Procedural Protection and Service Deadlines

If limitation is imminent, issue the claim form to protect time. CPR r.7.5 requires service within 4 months of issue within the jurisdiction (6 months for service out). Extensions to serve the claim form are strictly controlled (CPR r.7.6): the applicant must show they took all reasonable steps to serve and applied promptly. Deliberate delay or tactical issuing with no attempt at service risks refusal. Agreements between parties can extend time for service but do not extend limitation unless a valid standstill is in place.

Key Term: protective issue
Issuing a claim form close to limitation to secure the claimant’s position, typically followed by evidence gathering and ADR before service, within the statutory service window.

Practical Application

Limitation is an absolute bar unless statutory exceptions apply. Solicitors must calculate and record the limitation date on opening the file. Missing limitation is a classic professional negligence risk. Consider whether multiple causes of action arise (contract and tort) and whether the limitation dates differ. For latent damage, identify both accrual and knowledge dates and apply the longstop.

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.

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.

Worked Example 1.3

Limitation in a PI claim expired yesterday. The claimant had ongoing rehabilitation evidence issues. Can s.33 assist?

Answer:
Possibly. For PI and fatal accident claims, the court has a statutory discretion to disapply limitation if it is equitable. The court will consider the length and reasons for the delay, prejudice to the defendant, whether evidence is less cogent, and the conduct of both parties. If rehabilitation and medical reporting caused reasonable delay and the defendant suffers limited prejudice, the court may allow the claim to proceed.

Worked Example 1.4

A debt claim appears close to limitation. You issue protectively but do not serve within 4 months. Can you obtain an extension to serve?

Answer:
Only if you show good reason under CPR r.7.6 (all reasonable steps to serve and a prompt application). Tactical delay without attempts at service will usually fail. If refused, the claim will be struck out and limitation may prevent reissue.

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
• Support efficient case management and reduce costs

Protocol Core Steps

• Letter of claim: Send to the defendant outlining the basis, facts, and remedy sought, with key documents and a concise calculation if money is claimed.
• Letter of response: Defendant responds within a reasonable time—typically 14 days in simple matters and up to 3 months in complex cases—confirming admissions/denials, reasons, and any counterclaim.
• Disclosure: Key documents are shared to clarify the dispute and enable informed decisions.
• Experts and proportionality: Parties should consider single joint experts where appropriate and take only reasonable, proportionate pre-action steps.

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.

Courts expect evidence that ADR was considered. Unreasonable refusal to mediate or to engage meaningfully with pre-action steps can carry costs consequences.

Specific Protocols: Illustrations

• Debt Claims (PPDC): Applies where a business (including sole traders and public bodies) seeks payment from an individual or sole trader. The letter must include an up-to-date statement of account, interest and charges, ways to pay, and annexed protocol forms (Information Sheet, Reply Form, Financial Statement). Debtors have 30 days to respond, and proceedings should not be issued within that window; allow extra time if the debtor seeks debt advice.
• Professional Negligence: Parties use a preliminary notice to alert the professional and insurers, followed by a detailed Letter of Claim. The professional acknowledges within 21 days and has 3 months to investigate and respond with a Letter of Response and/or Letter of Settlement. If not resolved, parties undertake a stocktake to narrow issues and consider ADR before proceedings.

Key Term: stocktake
A pre-issue review where parties reassess their positions and seek to narrow remaining issues after protocol exchanges, often preceding a decision to issue.

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 (including up to 10% above base rate against a non-compliant defendant)

Key Term: indemnity costs
Costs awarded on a higher basis against a party, usually for misconduct or non-compliance.

Costs sanctions can apply even where the non-compliant party is otherwise successful, if the court considers that proceedings could have been avoided or narrowed by proper pre-action conduct.

Pre-Action Disclosure

If a potential defendant refuses to disclose key documents necessary to appraise the dispute, an application under CPR r.31.16 may be made. The court must be satisfied that both applicant and respondent are likely to be parties, the requested material would fall within standard disclosure if proceedings had started, and pre-action disclosure would fairly assist resolution or save costs. Orders will specify documents/classes of documents and a timetable for disclosure and inspection.

Key Term: pre-action disclosure
A court order under CPR r.31.16 requiring disclosure of specified documents before issue where criteria are met to assist fair resolution or save costs.

Worked Example 1.5

A claimant believes the defendant’s maintenance records will determine liability in a public liability claim but receives refusals pre-action. What is the correct step?

Answer:
Consider an application under CPR r.31.16 for pre-action disclosure. Show that the parties are likely to litigate, the documents would be disclosable under standard disclosure, and pre-action disclosure will fairly assist resolution or save costs.

Worked Example 1.6

You act for a creditor chasing an individual debtor. What must be included with the pre-action letter, and how long must you wait before issuing?

Answer:
Include a detailed letter with the basis of the debt, up-to-date statement of account (interest and charges), how to pay, and annex the protocol forms (Information Sheet, Reply Form, Financial Statement). Allow 30 days for a response before issuing, with further time if the debtor is seeking advice.

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? Consider governing law clauses; if absent, identify applicable law and forum using domestic rules (and, where relevant, retained EU instruments for applicable law). Service on a defendant while present in England generally grounds jurisdiction. Where a foreign element exists, factor in the practicality and cost of enforcement abroad.
• Correct parties: Identify the right claimant and real defendant, especially if involving companies, partnerships, vicarious liability, or insolvency situations. Ensure any insurers or other potential defendants are properly engaged at the pre-action stage.
• Funding and costs: Assess how litigation will be funded (private, insurance, conditional fee, damages-based agreement, public funding), and inform the client of potential adverse costs and the reality that pre-action costs are usually irrecoverable unless agreed in settlement. Consider making or inviting Part 36 offers pre-action to shape costs outcomes.
• Evidence and risk: Are the facts provable? Are there documents or witnesses available and reliable? Take steps to preserve evidence and consider whether expert evidence will be necessary and proportionate.
• ADR suitability: Is it more appropriate to mediate or seek another dispute resolution method before issuing proceedings? Unreasonable refusal may have costs consequences.

Key Term: cause of action
The legal basis for bringing a claim against a defendant, based on alleged facts.

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. Where limitation is tight, issue protectively and manage service deadlines carefully. Do not assume extensions to serve will be granted.

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. Keep a pre-action checklist covering protocol compliance, ADR consideration, evidence status, and funding arrangements.

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 start date principles (breach vs damage), knowledge-based rules, and the longstop for latent damage
• Statutory exceptions/suspensions and discretion (fraud/concealment, mistake, minors/protected parties, s.33 for PI/fatal accidents)
• How to protect claims near expiry and the service rules/risks under CPR r.7.5 and r.7.6
• The structure, purpose, and application of pre-action protocols and the Practice Direction, including Debt and Professional Negligence protocols
• Sanctions for non-compliance with required pre-action steps, including indemnity costs and interest adjustments
• The availability and criteria for pre-action disclosure to assist settlement or save costs
• The essentials of early identification of proper parties, case merits, funding issues, ADR, evidence, and enforcement prospects

Key Terms and Concepts

• overriding objective
• limitation period
• statute-barred
• date of knowledge
• standstill agreement
• protective issue
• pre-action protocol
• Practice Direction – Pre-Action Conduct and Protocols
• stocktake
• alternative dispute resolution (ADR)
• pre-action disclosure
• cause of action
• indemnity costs