A LEADING LAW FIRM WITH A APPROACH Limitation Periods Clare Swinhoe

Agenda Limitation principles Specific limitation periods Extending the “primary limitation period” Accessing documents for litigation Disposal/litigation holds Data Protection issues Practical points

Limitation Principles A key consideration when bring or defending a claim Clock running on when a claim can be started Limitation operates as a defence Law contained in Limitation Act 1980 (the “Act”) –limitation periods for different causes of action –cases decided under the Act

Specific Provisions Contracts – s.5 –six years from the breach occurring Torts – s.2 –six years from the damage occurring –loss is an essential part of a tort claim so must be present –can be difficult to clearly define when time starts to run

Date of Damage - Torts Law Society v Sephton & Co [2006] HL –need a quantifiable or ascertainable loss –contingent liabilities not count as “loss” – so time will not start to run Shore v Sedgewick [2007] CA –negligent financial advice (pensions) –when was the claimant in a worse position as a result of the advice? –“transaction case” – loss when transaction entered into following the advice

Latent Damage Negligence claims (not PI) Three years from date on which C ought to have known: –material facts about the loss suffered; –identity of D; –cause of action 15 year longstop date

Latent Damage When did C know enough for the three year period to start? Haward v Fawcetts (a firm) [2006] HL –enough factual information about what happened and the damage suffered to make it reasonable to commence investigations about a claim –often contentious point

Specific Provisions Breach of trust – s. 21 –Six years from breach –BUT no limitation where fraud alleged –applies to claims against third parties as well as trustees Personal injury / death – s.11 –Three years from date of injury or knowledge (whichever later) –S. 33 – court discretion to extend date

Specific Provisions Mortgages – –twelve years to recover principal sum or charge on property start date depends on mortgage terms but often after 2 or 3 missed payments –six years to recover interest Runs from date interest becomes due

Specific Provisions Defamation/Malicious Falsehood – s.4A –one year from accrual of cause of action –Court discretion to extend Consumer Protection Act claims – s.11A –three years from accrual of cause of action or knowledge –subject to ten years from date of supply of defective product Recovery of land – s.15 –twelve years from date right of action accrued

Other Provisions Defective Premises Act 1972 s.1: –six years from completion of the dwelling or –six years in respect of any remedial work

Extending the time Standstill agreement –suspends time for the purposes of limitation Fraud, concealment and mistake – s.32 Act –time does not start running until C has discovered, or could reasonably have discovered –open ended

Effect of insolvency Liquidation –stops time running - claim stays live Administration –Clock keeps ticking

Other Issues If a claimant issues against the wrong party it may be able to bring a claim out of time against the correct party if the court allows, eg: –if new party has acquired the interest of the old –mistake as to name, not identity –mistake as to claimant as well as defendant

Documents in litigation Refers to paper and electronic documents, databases etc May be essential in proving or defending a claim No duty to preserve documents before litigation is contemplated Timothy Duncan Earles v Barclays Bank PLC [2009] –D failed to retrieve relevant documents –reduced D costs by 50% –no adverse inferences

Disposal / Litigation Holds When a claim or investigation is anticipated Stop destroying records that may be relevant to the claim Who can authorise a hold? Record date, reason and scope of hold Communication to all involved personnel Clearly define scope of hold Monitor when hold should be released CPR 31, PD31B

Data Protection Issues 5 th Principle –personal data to be kept for no longer than is necessary for the purposes for which the information was originally collected 7 th Principle –data controllers take appropriate measures against: Accidental loss or destruction of, or damage to, personal data

Practical steps Consider when retention periods should run from Decide whether best to:- –Keep all records for the longest time; –Divide records into categories and assign an appropriate destruction date Any exceptions? Procedure for a “hold” on destruction Keep in mind data protection principles A proportionate, balanced approach Consistently applied

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