Three Weeks After the Limitation Date

1. Preserve the truth of the file. The partner must not backdate a file note or create a document suggesting a decision that was never made. A note made today should record the discovery on 2 April, who discovered it, what was known and what was not. Backdating is dishonest, would be disclosable in any claim, and may amount to professional misconduct and an offence. The original associate's note and the file should be preserved untouched.

2. Tell the client promptly. The three-year limitation period for a personal-injury claim under the Limitation Act, 1972 (NRCD 54) expired on 12 March 2025. The client is entitled to know that no writ was issued and that the firm missed the date. 'Under review' is misleading and breaches the duty of candour. The partner should write a clear letter, invite the client to a meeting, and explain the consequences in plain language.

3. Advise independent advice. The firm's interest is now adverse to the client's. The client should be told to take independent legal advice on whether she has a claim against the firm and on any residual claim against the driver or another party. The firm should not advise her on that claim itself.

4. Check for a residual claim. Is there any extension, any claim not yet time-barred, or any other defendant? That requires a fresh limitation analysis, not an assumption. If a claim can still be saved, act immediately; if not, say so.

5. Notify the insurer. Do this immediately after the client is told, or in parallel, and keep a record of the notification.

Notify now. The policy is claims-made and notification is a condition of cover. A claim or circumstance that might give rise to a claim must be notified as soon as the firm becomes aware of it. Waiting until the client sues, or until the firm has 'investigated', risks the insurer declining cover or reducing it for prejudice.

What to send. A factual notification: the retainer date, the accident date, the limitation date, the failure to issue, the client's position, the steps taken, the file reference and the identity of the partner handling the matter. Attach the relevant documents but do not alter them. Ask the insurer for a coverage position and for authority on communications with the client.

Do not mislead the insurer. The notification must not blame the departed associate alone if the partner also failed to supervise. The firm should give a complete account, including the absence of a diary system and the partner's failure to review the file.

Cooperation and privilege. The insurer may appoint solicitors. The firm must cooperate, preserve documents and avoid admissions to third parties without advice. But the duty of candour to the client is not suspended by insurance: the firm can tell the client the facts and that it accepts responsibility for investigating the matter, while taking advice on the legal characterisation of liability.

Risks of late notification. The insurer may decline indemnity, reserve rights, or cover only part of the loss. The firm may then face the claim from its own resources. Late notification can also compound the disciplinary consequences because it suggests concealment. If the firm is unsure whether a circumstance is notifiable, it should notify and let the insurer decide.

Continuing to act

The firm's interest is adverse to Ms Mensah's: she may have a negligence claim against it. A lawyer should not act where there is a conflict between the client's interest and the lawyer's own. The firm may continue only in a limited, protective role, with her informed consent, to preserve her position and hand over the file; it should not advise her on the negligence claim or negotiate a settlement of it. Best practice is to cease acting, help her instruct another firm and transfer the file promptly. If a court deadline is imminent, the firm may need to take a protective step, but it must tell her and the new lawyer exactly what it has done.

The file

• Preserve the original file, the associate's note and all correspondence. Do not rewrite, remove or destroy anything.
• Provide a complete copy to the client or her new lawyers, subject to any lien for unpaid fees; a lien must not be used to withhold documents needed to protect her claim.
• Record the handover in writing.

Procedures

• Introduce a central diary with dual entry for every limitation date, reviewed by a partner.
• Require a partner to sign off every new personal-injury file within 48 hours, confirming the limitation date.
• Run a monthly limitation audit across all files.
• Train all fee-earners and secretaries; make limitation misses a reportable internal incident.
• Review supervision: the partner cannot delegate responsibility for diarying and reviewing.
• Consider whether the firm should report the matter to its insurer and, if there is dishonesty or a cover-up attempt, to the General Legal Council. Negligence alone may not require self-report, but concealment would.