Posted by Mark Hambleton, Senior Associate
Personal Injury Claims and the Limitation Period
A father/grandfather was given permission to add a personal injury claim to other claims arising from a fire in which his daughter and grandchildren had died even though this “new” claim was being added outside the limitation period.
This blog looks at the factors the Court takes into consideration in reaching a decision as to whether a Claimant, who seeks to bring a personal injury claim outside the limitation period, should be granted permission to do so within the existing proceedings rather than having to bring a separate action against his former solicitors for professional negligence for advising that he did not have such a personal injury claim.
The ruling we will be going on to look at arises from a tragic course of events. A father/grandfather was the Claimant in the action. His personal injury advisor brought proceedings on his behalf arising from a fire in which his daughter and grandchildren had died.
This action was brought as a dependency claim under the Fatal Accidents Act 1976 and as a claim by the Estate on behalf of the deceased under the Law Reform (Miscellaneous Provisions) Act 1934.
These personal injury proceedings were bought within the relevant time limit but unfortunately the Claimant’s personal injury solicitor failed to advise him that he also had a claim in his own right.
It was not until after the limitation period had passed that the Claimant was advised on a potential personal injury claim in his own right. His claim was for psychological injuries following the fire that killed his daughter and grandchildren. The question for the Judge was whether the Claimant could add his claim to the existing proceedings or whether, having missed the time limit, he should pursue a professional negligence claim against his previous solicitor.
The Judge did not accept the Defendant’s arguments that the Claimant had been advised to pursue a claim previously but had decided not to or that the Defendant would suffer a prejudice in their investigation and conduct of the claim if the Claimant’s claim was added.
The Court held that if the Claimant were allowed to add in this “new” claim to the existing proceedings there would be a minor prejudice to the Defendant. The Court found that if the Claimant’s request was refused there would be a significant prejudice to him because he would be restricted to a claim for professional negligence against his previous personal injury solicitors. The significant prejudice to the Claimant was threefold:
- He had returned to living in Brazil.
- He had stuck with the same solicitor who had moved between two previous firms who would be the Defendants in the professional negligence case.
- A professional negligence claim would be limited to the loss of a chance of bringing a personal injury claim which would be difficult to quantify and almost certainly achieve a lower figure than the personal injury claim.
The two main points for clients to take from this Judgment are that they should contact another firm of solicitors before Court proceedings are issued or before the matter is settled if they are unhappy with their existing solicitor’s advice.
Also, where clients subsequently receive advice that they may have been represented negligently by a previous solicitor they should contact a specialist firm of professional negligence solicitors and act promptly on becoming aware of the problem to increase the chances of the Court exercising its discretionary exclusion of the statutory time limit.
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