Time barred personal injury claim

k66yla

Hi, looking for information of how to deal with this.

I sustained an injury at work back in 2009. I've had solicitors dealing with this since then. Recently received a phone call/letter off the solicitor stating they had forgotten to add my name to the court list(?) and now my claim has become time barred. Meaning I will not beable to progress my claim through the courts.

They have suggested getting another firm of solicitors in who will then claim off their insurance assuring me that all paperwork will be forwarded on to the new solicitors.

Has anyone else had to deal with this issue and what was the outcome?

ps I'm still having treatment for the injury, so it not been a short term problem.

huckster

Speak to a solicitor who has a bit more knowledge. My understanding (but I am not an expert) is that under section 33 of the limitations act, is that it is possible for personal injury claims to be considered outside of the normal barring period. It would be up to a solicitor with expert knowledge to make the case in court.

huckster

Re Section 33 of limitation act, have a read of page 3 of this link.

http://www.guildhallchambers.co.uk/uploads/docs/section2/PISummer2006.pdf

Not saying that I totally understand the legal arguments. Just that there are cases that have been argued under S33 in regard to whether a claim is statute barred or not.

vaio

I think the normal outcome in this sort of case is that the negligent solicitor's insurance company pays what the OP would have got from the court had the solicitor lodged the court papers within time.

The appointment of a different firm to handle it is to avoid conflict of interest as the original solicitors are now in the dock (so to speak)

[Deleted User]

Yes I agree with the above, you still have time to claim, but they failed to follow the correct procedure - this was because you wen't so far and they stopped as such.

So yes just look for the next firm and get them to take the action, or make the claim from the other.

Hope you get this sorted, I would not be pleased at all with them, let us now who they are...

Crazy_Jamie

It's unclear what your solicitors mean by the fact that they have failed to add your name to the court list. That phrasing doesn't make sense. If this is a claim involving multiple claimants, it may well be that your name wasn't added to the list of claimants. Otherwise they simply haven't issued your claim. Both are mistakes on their part, but if dialogue has been ongoing between your solicitors and the third party insurers/solicitors, then it would still be a good idea to issue the claim or apply to have your name added to the litigation as a claimant at this stage.

Being outside the three years to make a claim does not mean that you cannot bring a claim. You still can; limitation amounts to a defence but does not prevent the claim being issued. Clearly the Defendant will argue that you are out of time, but as has already been stated the court as a discretion under s.33 Limitation Act 1980 to disapply the primary limitation period, which would allow your claim to proceed. Providing you are not too far outside the period, which you can't really be if the accident was in 2009, and there has been ongoing dialogue before now with the other side, you would have a decent shot at convincing the court to exercise that discretion.

If you are unsuccessful in that regard, you should then instruct another set of solicitors and pursue your original solicitors for professional negligence. Such an action would seem somewhat cut and dry, but I would not be taking that course of action at this stage. Pursuing the claim first and attempting to secure relief under s.33 should be the first move.

huckster wrote:

Re Section 33 of limitation act, have a read of page 3 of this link.

http://www.guildhallchambers.co.uk/u...Summer2006.pdf

Not saying that I totally understand the legal arguments. Just that there are cases that have been argued under S33 in regard to whether a claim is statute barred or not.

That link is not particularly helpful in the main, simply because it links to a Chambers newsletter that outlines a couple of recent decisions on the area of limitation. I daresay you likely came across it simply following a Google search. There's no real need to go into s.33 in any particular detail in this thread, though if anybody wants to know what the section actually says, you can find it in the link below;

http://www.legislation.gov.uk/ukpga/1980/58/section/33

Quentin

Crazy_Jamie wrote: »

......you should then instruct another set of solicitors and pursue your original solicitors for professional negligence....

It looks like that is the advice the OP's current solicitor was giving:

They have suggested getting another firm of solicitors in who will then claim off their insurance assuring me that all paperwork will be forwarded on to the new solicitors.

When they refer to "their insurance" I take it to mean their legal professional indemnity insurance.

rs65

Crazy_Jamie wrote: »

Pursuing the claim first and attempting to secure relief under s.33 should be the first move.

I don't doubt anything you say, but do you not think the solicitor would have explored all possibilities before making the admission that they have made a mistake?

Crazy_Jamie

Quentin wrote: »

It looks like that is the advice the OP's current solicitor was giving:



When they refer to "their insurance" I take it to mean their legal professional indemnity insurance.

It is, and I don't know the full facts of the matter to be able to comment on why that is. It may well be that they have already attempted to argue the limitation point and failed. It may well be that for whatever reason they don't fancy their chances of succeeding with that point, and would prefer to refer the OP on rather than risk the chance of pouring more hours into running that point and not recovering anything by way of costs for it (in other words, they want to cut their losses as to costs at this point). But my point is that even where a mistake is made by the solicitors such as this, they still have a duty to do the best by their client. Running and arguing the limitation point may still represent a perfectly viable method by which the OP's claim could continue, and therefore it should be explored before the OP is essentially advised to bring an action against the solicitors. But by all means if the OP has actually be advised by the solicitors to start proceedings against them, I hardly think that the court would be critical of him for doing what they say.

rs65 wrote:

I don't doubt anything you say, but do you not think the solicitor would have explored all possibilities before making the admission that they have made a mistake?

I would hope they would, and it may be that they already have done. But as stated above, that isn't necessarily the case. There is also something of an inherent danger in assuming that a solicitor has done everything they can when we already know that they have failed to do something as simple and straightforward as issuing proceedings on time. Such a frank admission of fault could perhaps be construed as unusual, but then again the fault is so clear that I don't really see how they could say otherwise.

k66yla

Quentin wrote: »

When they refer to "their insurance" I take it to mean their legal professional indemnity insurance.

Thats correct.

Just to clarify.......
According to the letter from the solicitors..........'We failed to issue Court Proceedings within the 3 years of the date of the accident', 'The strategy was to await the outcome of various test cases' and they 'recommend another panel solicitor be bought in to continue the claim'.

Spiderham

What they've done is usual protocol for when they miss a deadline and is what he Solicitors Regulation Authority say they should do. Recommend the client instructs other solicitors to deal with the claim. If you are still able to bring the injury claim then you will get it heard that way, otherwise you will have to claim against the solicitors who were negligent and missed the deadline (in turn their insurers will deal with the claim for them). I'd imagine your new solicitors would deal with this too, but check with them.