Limitation Pressure and the Personal Injury Protocol
Your client, Maya, slipped on a wet floor in a supermarket on 15 June 2022, injuring her back and suffering a depressive episode. You sent a letter of claim under the Pre-Action Protocol for Personal Injury Claims on 2 September 2024. The defendant's insurer replied on 20 December 2024 denying liability, alleging that Maya was contributorily negligent because she wore smooth-soled shoes, and saying that its expert will need 16 weeks to report. Maya has a pre-existing degenerative back condition. The three-year limitation period expires on 15 June 2025. It is now 6 January 2025. The insurer has offered £4,000 without prejudice, which Maya has not accepted. Your principal asks whether you should issue proceedings now, and what to do about the protocol and the expert evidence. The client is anxious about costs and wants to know whether she can wait for the expert.
1. Should you issue proceedings now? Explain the limitation and procedural consequences, and any costs risks.
Read the worked answer
Issue now. The limitation period for a personal injury claim is three years from the date of the accident (Limitation Act 1980 s.11). It expires on 15 June 2025. A pre-action protocol does not suspend limitation, and there is no reliable way to agree a standstill that binds the court. Waiting for the defendant's expert beyond the limitation date would be negligent. Issue the claim form before 15 June 2025, even if proceedings are otherwise premature.
Procedure. Issue in the appropriate County Court. Serve the claim form within four months of issue (CPR 7.5) and the particulars of claim within 14 days after service (CPR 7.4). Notify the defendant that proceedings have been issued solely to protect limitation and invite a stay to complete the protocol.
Costs. Issuing before the protocol period has expired can attract a costs sanction under PD Pre-Action Conduct para 17, but the court is unlikely to penalise a claimant who issues to avoid limitation and then cooperates. Make a written request for a stay while the protocol is completed. Preserve costs by making a claimant's Part 36 offer at a realistic figure; the £4,000 offer is low on the medical picture described.
2. The defendant refuses to provide its expert report until 16 weeks from now. What applications or steps should you take, and can you rely on your own expert report at trial?
Read the worked answer
Expert evidence. The defendant's 16-week timetable is not a reason to delay protecting limitation. You can obtain your own expert report, but you must not incur disproportionate cost; a report on liability and causation is justified. At trial, expert evidence is not admissible without the court's permission (CPR 35.4). A pre-action report can be used for settlement, but the court will case-manage expert evidence.
Steps. After issue, apply for directions and ask the court to timetable a single joint expert or sequential reports. If the defendant refuses to disclose its report, apply for specific disclosure once proceedings are issued. Do not apply for an unless order before the defendant is in default. Write a protocol-compliant reminder and propose a joint expert.
Client care. Advise Maya that her pre-existing condition may reduce damages on causation but does not defeat the claim. The £4,000 offer should be assessed against the medical evidence. Consider a Part 36 offer at a realistic figure and explain the costs consequences of beating or failing to beat it.