Is three years really three years?
Victoria Gofton | 08/05/2008
Many people do not know that in personal injury claims, which includes dental and clinical negligence claims, you only have three years from the date of the injury, or the date from which you first knew or should have known about the injury, in which to bring a claim. There are a number of exceptions to this; however the standard rule followed by all lawyers is to abide by the three year period set down by statute. To fail to do so may mean that the Claimant is not able to bring a claim for compensation at all.
I have had a number of clients come to me recently where this three year date was about to expire and I have had to very carefully consider with them the risks to proceeding at all at this late stage. As a result it has caused me to question whether the three year period is really a three year period in practice.
As most people know, the majority of personal injury claims are funded by Conditional Fee Agreements, more commonly known as “no win, no fee” agreements. These are a great advantage for Claimants as it means that they do not have to pay my legal fees as the case progresses, which are generally met at the end of the case by the Defendant. However, expenses, known as disbursements, do still have to be paid and to ensure Claimants are not at risk of paying these out if they lose; we take out an insurance policy. This insurance also protects them against having to pay the Defendant’s costs should they lose.
This system works well if a client comes to see me three months after their accident, and even up to two-and-a-half years after, as there is no need for the Defendant to incur legal costs before court proceedings are started and insurance is generally easily obtainable at that stage. However when they come through my door with only a month to go until their limitation date expires, or worse, a week, or a day, it is much harder to offer them this protection, as the risks are far greater.
Please don’t misinterpret my position, if a client has reasonable prospects of succeeding it may still be possible to offer a “no win, no fee” agreement and proceed with their claim. The difficulty comes with getting insurance and protecting the client against the risk of losing and being out of pocket with expenses and the Defendant’s legal fees.
There is little protection that I can offer clients in this position who generally must first pay a court fee to keep their chance of bringing their claim alive. After that we have to consider what can be realistically achieved in the time left to investigate the prospects of succeeding in their claim. There is always the risk that these investigations cannot be completed before the Defendant starts incurring costs and that eventually a decision has to be made to drop the case, meaning the Claimant loses the money they have already paid out and might be ordered to pay the Defendant’s legal costs as well.
My advice is therefore that whilst you do have three years to bring a claim, the protection that I can offer you if you come to me when that time limit is about to expire, is unfortunately limited. If you wish to bring a claim for personal injuries howsoever caused, please try to consider doing so at least within the first 2 and half years of the accident if not before. I may still be able to help after that, and I would be happy to discuss the implications with you, but the risk for you will be far greater.
The information and options contained in this article are only intended as a general view of the subject concerned. Specific advice concerning individual situations should always be obtained from the usual contact at Griffith Smith Farrington Webb LLP. No part of the publication may be produced without the express written permission of the individual author.
