Clinical negligence time limits

What is the usual clinical negligence time limit?

Clinical negligence claims for personal injury are generally governed by section 11 of the Limitation Act 1980.

The ordinary period is three years from whichever is later:

• the date on which the cause of action accrued; or
• the injured person’s date of knowledge.

This is often described simply as the ‘three-year rule’, but that shorthand can be misleading. The starting date is not necessarily the date of an operation, appointment, diagnosis or other treatment.

Does the three years always start when the treatment happened?

No.

Section 11 refers first to the date on which the cause of action accrued and then allows the later date of knowledge to be used where the statutory requirements are met.

In many clinical negligence cases the injury and the allegedly negligent treatment occur close together. In others, damage develops later or the patient does not discover the relevant connection until afterwards.

The correct starting date therefore depends on the legal and factual circumstances rather than simply the date written at the top of a medical record.

What is the ‘date of knowledge’?

Section 14 of the Limitation Act defines what date of knowledge means for this purpose.

In broad terms, the relevant knowledge includes knowledge of the facts that:

• the injury is significant;
• the injury is attributable, at least in part, to the act or omission alleged;
• the identity of the defendant is known; and
• where the alleged act or omission was committed by somebody other than the defendant, the relevant identity and additional facts supporting the claim against that defendant are known.

The legislation expressly says that knowledge of whether the acts or omissions amount to negligence as a matter of law is irrelevant.

What counts as a significant injury?

Section 14 gives ‘significant’ a specific legal meaning.

The question is broadly whether the injury would reasonably have been regarded as sufficiently serious to justify bringing a claim for damages against a defendant who did not dispute liability and was able to satisfy a judgment.

This means the legal concept of significance is not simply a medical label and is not determined solely by whether the patient knew the final diagnosis.

How much does someone need to know about what went wrong?

The claimant does not normally need a complete expert reconstruction of the case before time can start to run.

The courts have repeatedly distinguished between knowing the essential facts and knowing all of the evidence needed eventually to prove negligence.

In Ministry of Defence v AB, the Supreme Court examined section 14 and emphasised that the statutory question concerns knowledge of the specified facts, including that the injury was attributable in whole or in part to the act or omission alleged.

The precise application is fact-sensitive. A patient may know that a significant injury appears connected with particular treatment before knowing exactly which technical error occurred.

What is constructive knowledge?

Section 14 does not look only at what a person actually knew.

It also includes, in certain circumstances, knowledge that the person might reasonably have been expected to acquire:

• from facts that were observable or ascertainable; or
• with the help of medical or other appropriate expert advice that it was reasonable to seek.

This is commonly called constructive knowledge.

In Adams v Bracknell Forest Borough Council, the House of Lords considered when it is reasonable to expect someone to seek appropriate advice and therefore acquire further knowledge.

Can deliberate concealment affect the time limit?

Section 32 of the Limitation Act contains additional rules where an action is based on fraud, a fact relevant to the right of action has been deliberately concealed by the defendant, or the action seeks relief from the consequences of a mistake.

Where section 32 applies, the ordinary limitation period may be postponed until the claimant discovered the fraud, concealment or mistake, or could with reasonable diligence have discovered it.

Deliberate concealment has a specific legal meaning. The Supreme Court in Canada Square Operations Ltd v Potter confirmed that, for section 32(1)(b), concealment must be deliberate: the defendant must intend to conceal the relevant fact. Section 32(2) also contains a separate rule concerning the deliberate commission of a breach of duty in circumstances where it is unlikely to be discovered for some time.

When does time run for a child?

A different rule applies where the right of action accrued while the injured person was a child.

Under section 28 of the Limitation Act, the ordinary limitation period does not operate against a child in the same way while the disability of childhood continues.

For a clinical negligence injury occurring during childhood, this generally means the three-year period does not begin to run merely because the child or the child’s parents know about the injury. In the usual case, the child has until at least their 21st birthday to begin proceedings, because the relevant disability ends at 18 and the personal injury period is three years.

What if an adult lacks capacity to conduct legal proceedings?

The Limitation Act also contains special rules for a person who lacks capacity, within the meaning of the Mental Capacity Act 2005, to conduct legal proceedings.

Where the person was under that disability when the right of action accrued, section 28 can postpone the effect of the ordinary limitation period while the disability continues.

If the person later regains the relevant capacity, the personal injury limitation period will generally run from the end of that disability, subject to the other statutory rules.

A person who lacks litigation capacity does not have to wait to regain it before a claim can be pursued. CPR Part 21 provides for proceedings involving a protected party to be conducted through a litigation friend.

What happens to limitation if the patient dies?

Death introduces separate limitation rules, and it is important to distinguish different types of claim.

The deceased person’s surviving claim

Where the injured person dies before their own section 11 limitation period has expired, section 11(5) provides a special period for the cause of action that survives for the benefit of the estate.

That period is three years from whichever is later:

• the date of death; or
• the personal representative’s date of knowledge.

A claim under the Fatal Accidents Act 1976

Section 12 of the Limitation Act contains a separate limitation regime for claims brought for the benefit of dependants under the Fatal Accidents Act.

The ordinary period is three years from whichever is later:

• the date of death; or
• the date of knowledge of the person for whose benefit the action is brought.

There is an important restriction: a Fatal Accidents Act action cannot ordinarily be brought if, when the person died, the injured person could no longer have maintained and recovered damages in their own injury claim because it was already barred. Section 12 contains detailed rules about this.

Does making an NHS complaint stop the limitation period?

No.

The NHS complaints process and a clinical negligence claim are separate processes. Making a complaint can produce useful explanations, records or investigation findings, but it does not by itself stop the statutory limitation period for court proceedings.

The same principle applies whether the complaint is being handled through the NHS complaints system in England or through the relevant NHS Wales process.

Does requesting medical records stop the limitation period?

No.

Requesting medical records is often an important step in investigating clinical negligence, but the request itself does not stop the statutory limitation period.

Nor does simply:

• asking for records;
• instructing a solicitor;
• obtaining an expert opinion;
• sending a Letter of Notification;
• sending a Letter of Claim;
• negotiating with the healthcare provider; or
• waiting for a complaint or investigation response.

Does the Clinical Disputes Protocol extend the deadline?

No.

The Pre-Action Protocol for the Resolution of Clinical Disputes expressly states that it does not alter the statutory time limits for starting court proceedings.

The Protocol normally gives a defendant four months to investigate and respond to a Letter of Claim. That four-month response period does not add four months to the limitation period.

Where limitation is approaching and there is not enough time to complete the normal pre-action process, the Protocol recognises that proceedings may need to be issued first. The parties can then ask the court to stay the proceedings while the outstanding pre-action steps are completed.

What actually protects a claim from an expiring limitation period?

The statutory time limit concerns the commencement of court proceedings.

Where the deadline is approaching, the Clinical Disputes Protocol expressly recognises that proceedings may have to be started before the ordinary pre-action process has been completed.

Parties can in some circumstances also make a clear agreement concerning reliance on a limitation defence, but the legal effect depends on the terms of the particular agreement.

Can the court allow a claim to proceed after the ordinary time limit?

Potentially, yes.

Section 33 of the Limitation Act gives the court a discretion in personal injury and death claims to direct that the ordinary section 11 or section 12 time limit should not apply where it would be equitable to allow the action to proceed.

This is generally called the section 33 discretion.

It is not an automatic extension. A claimant who is outside the ordinary limitation period cannot assume that the court will disapply it.

In Greater Manchester Police v Carroll, the Court of Appeal summarised the approach. The discretion is broad and is not confined to an exceptional residual category, but the court must consider all of the circumstances and balance the prejudice to the parties.

What does the court consider under section 33?

The Limitation Act directs the court to consider all the circumstances and specifically identifies matters including:

• the length of and reasons for the delay;
• whether the delay has made the evidence less reliable;
• the defendant’s conduct after the cause of action arose, including responses to reasonable requests for information;
• the duration of any relevant disability after the cause of action accrued;
• how promptly and reasonably the claimant acted once they knew the relevant act or omission might be capable of giving rise to a claim; and
• the steps taken to obtain medical, legal or other expert advice and the nature of any advice received.

The central exercise is one of fairness and prejudice. Delay can matter particularly where records have been lost, memories have faded, witnesses can no longer be found or the defendant’s ability to investigate the allegations has materially worsened.

Should someone rely on section 33 if three years may have passed?

No assumption should be made that section 33 will rescue an out-of-time claim.

Whether the discretion is exercised depends on evidence about the particular delay, the reason for it, the availability and quality of evidence, the conduct of the parties and the overall fairness of allowing the action to proceed.

A court can therefore allow one late claim to proceed and refuse another even where both are several years outside the ordinary period.

Why doesn’t RemedyBridge provide a limitation calculator?

Because the inputs cannot safely be reduced to the date of treatment and a three-year addition.

A proper limitation analysis may require consideration of:

• when the cause of action accrued;
• when significant injury was known;
• when the relevant causal connection was known or reasonably ought to have been discovered;
• actual and constructive knowledge;
• whether the claimant was a child;
• litigation capacity;
• death and the type of claim being pursued;
• the identity of the relevant defendant;
• whether proceedings have already been issued;
• any formal agreement affecting reliance on limitation; and
• whether section 33 might become relevant.

An automated date could therefore look precise while being legally wrong.

What if the deadline may be close?

Limitation should be treated separately from the merits of the clinical negligence allegation.

A person does not need to finish an NHS complaint, obtain every medical record or know whether a claim will ultimately succeed before recognising that the limitation position may need urgent attention.

Useful information to identify includes:

• the dates of the treatment or omissions being questioned;
• when the injury first became apparent;
• when there was reason to connect the injury with the care;
• the patient’s date of birth;
• whether the patient has or had capacity to conduct proceedings;
• whether the patient has died;
• any complaint or investigation dates;
• any previous legal advice; and
• whether court proceedings or any formal limitation agreement already exist.

Where there is uncertainty about an approaching deadline, legal advice on limitation itself may be needed even while the underlying negligence investigation remains incomplete.