The Limitation Act 1980 imposes strict time limits on claimants. If a claim is not issued within the relevant period, it becomes statute barred — the defendant acquires a complete technical defence and the claim cannot proceed.
From the outset, a solicitor must identify when the limitation period began and when it expires. Failure to issue proceedings in time exposes the solicitor to a claim in negligence.
- Contract — 6 years from the date of breach (day after breach)
- Tort (general) — 6 years from the date damage occurs
- Personal injury — 3 years from date of cause of action or date of knowledge; for children, time does not run until their 18th birthday
- Latent damage (negligence) — later of: (a) 6 years from cause of action; or (b) 3 years from date of knowledge. Overriding limit: 15 years from the negligent act
- Contractual clause — always check the contract; a shorter period specified therein takes precedence
Who is the defendant? All potential defendants must be identified at the outset. Key points:
- Where an employee commits a tort in the course of employment, both the employee and employer should be sued (vicarious liability)
- A consumer may have claims against both the retailer and manufacturer of a defective product
- The defendant must be sued in their correct capacity: individual, sole trader, partnership, LLP, or limited company
Children and protected parties must have a litigation friend to act on their behalf. The friend must be able to conduct proceedings fairly and have no adverse interest. Any settlement involving a child or protected party requires court approval.
Is the defendant worth suing? Checks should include: Companies House search; bankruptcy search; inquiry agent; internet searches. If the defendant is insolvent, pursuing the claim may not be viable.
- Specified claim — a fixed, calculable sum (e.g. a debt, invoice amount). The amount is known without the court needing to investigate.
- Unspecified claim — the court must assess the amount (e.g. loss of profits, damages). Even if figures are proposed by the claimant, the claim is unspecified.
A cause of action is the legal basis of a claim. The most common in civil litigation are:
- Contract — breach of express or statutory implied terms
- Tort (Negligence) — breach of duty of care causing loss
- Misrepresentation — untrue statement of fact inducing entry into a contract
To establish a breach of contract claim, five elements must be satisfied:
Before issuing proceedings, parties must comply with pre-action protocols annexed to the CPR. If no specific protocol applies, the Practice Direction on Pre-Action Conduct and Protocols (PDPAC) governs the case.
Purpose: to promote early exchange of information so parties can settle without litigation; and where litigation is unavoidable, to ensure proceedings run efficiently.
Core principles:
- Litigation is a last resort — ADR should be considered first
- Parties must exchange sufficient information to understand each other’s position and attempt settlement
- Steps taken should be reasonable and proportionate
- Before issuing, parties should conduct a stocktake to review positions and narrow issues
- Claimant sends a letter before claim: concise details, summary of facts, amount claimed and how calculated, key documents
- Defendant responds within a reasonable time: 14 days (straightforward); up to 3 months (complex). Must confirm acceptance or reasons for denial; any counterclaim; key documents
- Parties then consider negotiation, ADR, and expert appointment
- Stocktake: before issuing, review positions and attempt to narrow or resolve remaining issues
Failure to comply may result in:
- Party at fault paying some or all of the opponent’s costs (potentially on the indemnity basis)
- Claimant deprived of some or all interest on damages recovered
- Defendant required to pay interest on damages at up to 10% above base rate
- Knowingly making a false statement in a pre-action letter may constitute contempt of court
Miko’s tip: The PDPAC is the safety net — it catches every civil claim that doesn’t have a specific protocol. A party cannot choose between the PDPAC and a specific protocol; the specific protocol applies where it exists.
Applies to business creditors claiming against an individual or sole trader debtor. Does not apply to business-to-business debts (unless the debtor is a sole trader).
The creditor must provide full information on the debt including: an up-to-date statement of account with interest and charges; how the debt can be paid; and the standard Reply Form, Information Sheet and Financial Statement.
The debtor has 30 days to respond (longer than under the PDPAC). Proceedings cannot be issued before this deadline. Extra time must be allowed for the debtor to seek legal or debt advice.
Applies where a claimant brings a negligence claim against a professional. Steps:
- Letter of Claim — full details and key documents; professional acknowledges within 21 days, then has 3 months to investigate and respond
- If the claim is denied and no settlement offered, the claimant may issue proceedings. Otherwise, parties negotiate for up to 6 months from the Letter of Acknowledgment
Miko’s tip: Key timing difference — debt protocol gives the debtor 30 days to respond; PDPAC gives 14 days (straightforward) to 3 months (complex).
Where a dispute has an international element, first determine the applicable law, then the jurisdiction. If the parties have agreed a governing law clause, that clause governs.
Contract — Regulation 593/2008 (in absence of agreement):
- Sale of goods — law of the country where the seller has their habitual residence
- Supply of services — law of the country where the supplier has their habitual residence
- Rights in land / tenancies — law of the country where the property is situated
Tort — Regulation 864/2007: the law of the country where the damage occurs or is likely to occur. Exceptions apply (e.g. product liability; tort manifestly more closely connected with another country).
Within the EU — Regulation 1215/2012 (incorporated by Civil Jurisdiction and Judgments Act 1982):
- Exclusive jurisdiction (Art 24) — e.g. land disputes: proceedings must go to the courts of the relevant State
- Agreed jurisdiction (Art 25) — if the parties have agreed on the courts of a particular Member State, proceedings must be taken there
- Basic rule (Art 4) — defendant must be sued in their local courts (domicile for individuals; registered office for companies)
- Contract (Art 7(1)) — proceedings may also be brought where the contract was to be performed: for goods, where delivered; for services, where provided
- Tort (Art 7(2)) — proceedings may also be brought in the State where the harm occurred
Outside the EU:
- Service within England & Wales — serving a defendant while present in England/Wales establishes jurisdiction, even briefly. Defendant may object on the grounds of a more convenient forum.
- Service outside England & Wales — court permission required. May be granted where: the contract was made/breached here or governed by English law; or in tort, the act or loss occurred here.
Miko’s tip: For sale of goods within the EU — applicable law follows the seller’s habitual residence (not the buyer’s); jurisdiction under Art 7(1) follows where the goods were delivered (not dispatched).