The Two-Year Clock
You are counsel for Ms F in a personal injuries action against a supermarket. Ms F slipped on a wet floor on 14 June 2021 and fractured her wrist. She says she first realised the fracture had caused permanent loss of grip in April 2022, when her doctor told her the injury was not resolving. The file shows the PIAB application was made on 20 June 2023. The PIAB authorisation issued on 15 July 2023. On 10 June 2023, her solicitor sent you a brief to draft the personal injury summons. You drafted it, but the summons was not issued until 20 July 2023 because the solicitor was waiting for the PIAB authorisation. The defendant has entered an appearance but has not yet delivered a defence. At a case management conference on 5 March 2024, the judge asks whether there is any issue about the time limit. The defendant's counsel has not raised it. Your client is anxious to settle and has been offered €40,000 without prejudice. The solicitor asks you to 'focus on the offer' and not to 'open the limitation can of worms.' The trial is listed for 2 December 2024.
1. Advise on whether Ms F's claim is statute-barred, explaining the relevant law.
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The primary limitation period for personal injuries is two years from the date of injury or the date of knowledge, under the Statute of Limitations 1957 as amended by the Statute of Limitations (Amendment) Act 1991. The accident was on 14 June 2021, so the period expired on 14 June 2023 unless the date of knowledge is later. Ms F knew she had fractured her wrist on the day; the later discovery that the grip loss was permanent may not postpone the start of the period, because the test is knowledge of the injury, not its full extent. The PIAB application was made on 20 June 2023, after the two-year period. The Personal Injuries Assessment Board Act 2003 excludes time spent before PIAB, but it cannot revive a claim that was already barred when the application was made. The summons issued on 20 July 2023 is therefore prima facie out of time. The only arguable point is the date of knowledge in April 2022, but that is weak on the facts. You must advise the client and solicitor of this risk in writing.
2. The judge asks at the case management conference whether there is any issue about the time limit. What do you say?
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You must answer truthfully and not mislead the court. You cannot follow the solicitor's instruction to 'focus on the offer' and ignore the question. You should say: 'There is a potential limitation issue. The plaintiff's position is that the date of knowledge is April 2022, but the point has not been finally resolved.' You should not assert that the claim is in time if you do not believe it. You should not blame the solicitor or reveal privileged advice. If the defendant has not pleaded limitation, you are not obliged to plead the defence for them, but you cannot conceal a known problem when the court asks directly. Before the conference, you should advise the solicitor that you will answer candidly if asked, and that the client must be told the limitation risk affects the settlement offer. The duty to the court overrides the client's wish to avoid the issue.
3. Can you continue to act if Ms F instructs you to proceed without raising limitation?
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You can continue only if you can do so without misleading the court or asserting a false case. You may argue the date-of-knowledge point if the client gives instructions and there is a proper evidential basis. But you must not conceal the issue if the court asks, and you must not put pressure on the defendant to settle by implying the claim is certainly in time. If the client insists that you say nothing and the court is likely to be misled, you may have to withdraw. The settlement offer of €40,000 must be considered in light of the limitation risk; you should advise the client that the offer may be reasonable compared with the risk of losing entirely. You should not let the client's anxiety override your duty to give candid advice. If you withdraw, you must do so without disclosing privileged information.