Loopholes in the Limitation Act – when will the court finally stop the clock?
Think you're safe after the expiry of the statutory limitation period?
In the recent case of Kara Rayner v Wolferstans (A Firm), Medway NHS Foundation Trust  EWHC 2957 (QB) the Judge allowed the claimant to proceed with her personal injury claim 7 years after the statutory period expired, using his discretion under s.33 of the Limitation Act 1980 (the Act).
The Wolferstans case arose out of an alleged negligently performed epidural by the second defendant, Medway, on 5 January 2004. The claimant instructed Wolferstans solicitors to explore a claim against Medway. Expert reports were obtained but both experts were unable to support a claim in negligence without MRI evidence. Several MRIs were arranged but not successfully completed. Consequently, on 26 July 2007 Wolferstans advised the claimant to discontinue her claim. The claimant's symptoms persisted and in August 2010 an MRI scan revealed that the epidural had been negligently performed.
As the claim against Medway was statute-barred, she instructed new solicitors to pursue a claim against Wolferstans for breach of contract and professional negligence. Proceedings were issued on 2 September 2013.
The court was asked to consider as preliminary issues: (i) the claimant's date of knowledge for the purpose of s.11 of the Act (the 3 year period for personal injury claims); (ii) whether her claims against the solicitors were statute-barred; and (iii) if her clinical negligence claim was statute-barred, could permission be given under s.33 of the Act.
(i) the claimant's date of knowledge was 24 July 2004 (the date that she made her initial statement to Wolferstans for the purpose of obtaining legal advice), rendering her statute-barred from pursing a claim against Medway unless permission was granted under s.33.
(ii) the contractual claim against Wolferstans was also statute-barred. The breach occurred in July 2007, putting the claimant outside of the 6 year period as proceedings were issued in September 2013. However, the tortious claim for professional negligence was not statute barred because it accrued only when the loss occurred – the loss of a chance of suing the trust in September 2007 – and was just within the 6 year period. Crucially, the loss of a chance claim would inevitably involve her recovering less than her clinical negligence claim.
(iii) accordingly, the claimant had been prejudiced and so the Judge exercised his discretion under s.33 to allow the claim against Medway to proceed.
Section 33 is a discretionary power to exclude limitation periods which only applies to personal injury claims. This is a clear example of a judge assisting an "assiduous" claimant, who had suffered a severe injury, acted in accordance with legal and expert advice and was not responsible for time delays.
One interesting aspect of this case is the fact that the combined effect of the expiry of the limitation period against Medway and the contractual limitation period against Wolferstans meant she only left with a professional negligence action for loss of a chance. It would be impossible to recover the full amount that she could have claimed from Medway in this type of action as damages awarded would be discounted to reflect that she only had a "chance" of a successful claim. That was a factor taken into account by the Judge in exercising his discretion under s.33.
Finally, it is worth noting that s.33 is not the only provision in the Act that allows the normal limitation period to be disregarded. In cases involving fraud, time does not start running until the fraud has been discovered (s.32). However, the recent case of Kotonou & Anor v Reeves & Anor (2015) concerning an allegation that the claimant's solicitors had deliberately concealed facts relating to his right of action, demonstrates that this is a high threshold to meet.