5.2 Limitation, Pre-Action Conduct and Applicable Law

Parties and causes of action come first

Limitation and pre-action work are wasted if you sue the wrong person or plead the wrong cause of action. Identify who owed the duty or made the promise, in what capacity, and which facts complete each cause of action. A claim against “the garage” when the contracting party was a limited company, or a negligence claim where the only real complaint is late delivery under a contract, will fail on parties or on law even if issued in time.

Typical party issues at this stage: is the defendant a company, an LLP, a partnership sued in the firm name, or an individual trading under a business name (PD 7A paras 7–9)? Has a cause of action against a deceased person been framed against the estate or personal representatives? If a child or protected party is involved, a litigation friend will be needed (CPR 21) and any settlement will need court approval. If several people are jointly entitled to a remedy, CPR 19.3 generally requires them to be parties unless the court orders otherwise.

Each cause of action has its own accrual rule. In simple contract, time usually runs from breach, even if loss is suffered later. In the tort of negligence, time usually runs from damage, because damage is an ingredient of the cause of action. Trespass to the person is actionable per se, so time runs from the act. Get accrual wrong and a six-year calculation is worthless.

Calculating Limitation Act 1980 periods

Section 14 date of knowledge is the date the claimant first knew, or ought reasonably to have known, four facts: (a) that the injury was significant; (b) that it was attributable in whole or in part to the act or omission complained of; (c) the identity of the defendant; and (d) if the act was another person’s, that person’s identity and the additional facts supporting a claim against the defendant. Knowledge that the act involved negligence as a matter of law is irrelevant. Constructive knowledge includes facts observable by the claimant and facts ascertainable with reasonable expert help (s.14(3)). An injury is significant if the claimant would reasonably have considered it serious enough to justify proceedings against a solvent defendant who did not dispute liability (s.14(2)).

Worked contract example. A written (non-deed) supply contract is made on 1 March 2018. The seller delivers non-conforming goods on 10 June 2020, which is the date of breach. The six-year period in s.5 runs from 10 June 2020. The claim must be brought by 10 June 2026. “Brought” for Limitation Act purposes is the date the court issues the claim form or, if earlier, the date the claim form was received in the court office (PD 7A paras 6.1–6.4). Service can, and often does, occur later; missing the four-month service window is a service problem, not a limitation problem, provided issue was in time.

Worked personal injury example. A factory worker is exposed to a substance in 2019 but first has significant symptoms, and first reasonably attributes them to the employer’s system of work, on 4 September 2023. Under s.11 the three-year period runs from that later date of knowledge, so the last day to bring the claim is 4 September 2026, subject to s.33 discretion and to disability. If the worker was 16 at the date of knowledge, s.28 suspends time until majority: the three years start when they turn 18.

Section 33 allows the court to disapply the s.11/s.12 time limit in personal injury and death claims if it would be equitable, balancing the prejudice to each party and having regard to the statutory checklist (length of delay, reasons, effect on evidence, the claimant’s conduct, and so on). Do not treat s.33 as a substitute for issuing in time; it is a discretion, not a second limitation period.

Latent damage to property in the tort of negligence (not personal injury) has a separate regime in ss.14A and 14B: six years from accrual or three years from knowledge, with a fifteen-year longstop from the negligent act. The FLK1 headline periods remain six / three / twelve as in the table; use 14A only when the facts are delayed-damage property negligence.

Pre-action correspondence does not stop time. PD Pre-Action Conduct paragraph 17 is explicit: the PD and the protocols do not alter statutory time limits. If you must issue to beat limitation before the protocol is finished, issue, serve as required, and apply for a stay so the parties can complete the protocol steps.

Practice Direction – Pre-Action Conduct and Protocols

Where a specific protocol applies (personal injury, clinical disputes, construction, professional negligence, judicial review, disease, housing conditions, possession, dilapidations, low-value RTA and EL/PL, and the RTA small-claims PI protocol, among those listed in paragraph 18), the parties should follow that protocol. Where none applies, the Practice Direction – Pre-Action Conduct and Protocols itself governs.

Paragraph 3 objectives: exchange enough information to understand each other’s position; decide how to proceed; try to settle; consider ADR; support efficient case management; and reduce costs. Paragraph 4 forbids using the PD as a tactical device. Disproportionate pre-action costs may be irrecoverable.

Paragraph 6 steps in a non-protocol case usually include:

1. A letter of claim with the basis of claim, a summary of facts, the remedy sought, and, if money, how the sum is calculated.
2. A response within a reasonable time — 14 days in a straightforward case and no more than 3 months in a very complex one — saying whether the claim is accepted and, if not, why, which facts are disputed, and whether there is a counterclaim.
3. Disclosure of key documents relevant to the issues.

Paragraphs 8–11 require the parties to consider negotiation or another ADR process (the PD lists mediation, arbitration, early neutral evaluation and ombudsman schemes). Part 36 offers may be made before issue. If proceedings follow, the court may require evidence that ADR was considered.

Paragraph 12 expects a stocktake: review positions, narrow issues, and only then issue.

Consequences of non-compliance (paragraphs 13–16). The court looks at substance, not minor technical slips, especially if the matter was urgent (for example an injunction). Failure includes not providing enough information, missing a protocol time limit or a reasonable period, and unreasonably refusing ADR or failing to respond to an invitation. Orders can include relief from further compliance, a stay to complete the protocol, costs against the defaulting party (including indemnity costs), deprivation or reduction of interest for a successful claimant, or enhanced interest against a defaulting defendant (not exceeding 10% above base rate).

Applicable law for a claim issued in England and Wales

Jurisdiction (may this court hear the claim?) is not the same as applicable law (which country’s rules decide the merits?). For a contractual or tortious claim issued in the courts of England and Wales, functioning knowledge uses assimilated EU instruments.

Contract: Rome I (Regulation (EC) 593/2008) as assimilated direct legislation. Article 3 gives party autonomy: a chosen law governs, including a choice of English law in an international contract. Article 4 supplies defaults if there is no choice: a sale of goods is generally governed by the law of the seller’s habitual residence; a contract for services by the service provider’s habitual residence; a contract relating to a right in rem in immovable property, or to a tenancy of immovable property, by the law of the country where the property is situated, subject to the short-term tenancy exception. Articles 6 and 8 restrict choice in many consumer and employment contracts so that the weaker party does not lose mandatory protections of the law that would otherwise apply. Overriding mandatory provisions and public policy (Articles 9 and 21) can still bite.

Tort / non-contractual obligations: Rome II (Regulation (EC) 864/2007) as assimilated. The general rule in Article 4(1) is the law of the country in which the damage occurs, irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country in which indirect consequences occur. Article 4(2) prefers the law of common habitual residence if both parties have it. Article 4(3) displaces those rules where the tort is manifestly more closely connected with another country (for example a pre-existing contract between the parties). Article 14 allows a choice of law after the event, and, between commercially acting parties, in some cases before it. Defamation and some other wrongs sit outside Rome II; do not force Article 4 onto a claim the Regulation excludes.

Rome I and Rome II decide substance, including, in many cases, limitation (because they treat limitation as a matter of the applicable law, interacting with the Foreign Limitation Periods Act 1984). Procedure remains the lex fori: an English claim is still pleaded and served under the CPR even if French law governs the contract.

Welsh language: a preliminary consideration, not an afterthought

The Practice Direction relating to the use of the Welsh language in cases in the civil courts in or having a connection with Wales gives effect to the Welsh Language Act 1993 and the Welsh Language (Wales) Measure 2011: in the administration of justice in Wales, English and Welsh are to be treated on the basis of equality. It applies to civil proceedings in or having a connection with Wales. CPR 5.6 confirms that any document placed before the court in such proceedings may be in English or Welsh, and that a party or their representative must tell the court as soon as practicable if Welsh-language documents will or may be used.

Practical consequences at the pre-action and issue stage: ask the client whether they or any witness will use Welsh; record that on the directions questionnaire in due course; and notify the court early so listing, interpreters and a Welsh-speaking judge can be arranged. A hearing in Wales may be conducted entirely in Welsh without notice where all parties and witnesses then present consent. Failure to flag the issue is a case-management failure, not a reason to prefer litigation over ADR.

Exam traps. Do not run six years for a personal injury claim: s.11 is three years from the later of accrual and knowledge. Do not treat a deed as a simple contract. Do not assume a protocol letter “protects” limitation. Do not confuse the law governing the contract (Rome I) with the court that has jurisdiction to hear the claim (CPR 6 and any jurisdiction clause).