The Court’s power to exclude the limitation period (Section 33 of the Act)
The court, in given circumstances, does have the power to exclude the limitation period, and allow claims for personal injury, including those for medical negligence, to continue, even if the 3 year limitation period has passed.
Our team of solicitors that specialise in medical negligence matters, have never had to request the court’s permission to exclude the limitation period. The court often uses its powers to refuse such applications, and Instances of applications to the court, requesting the court to use the powers bestowed upon them, usually arise when an injured person has failed to file court proceedings at court, within the given 3 year period; or 3 years from their deemed date of knowledge.
That said, the grounds on which the court will allow the limitation period to be excluded, can be stated as follows:
If an injured person has not issued a Claim Form to the court in time, then he or she may seek a discretionary exclusion of the limitation period.
Section 33(1) states that if it appears to the Court that it would be equitable to allow an action to proceed, the Court may direct that those provisions shall not apply.
When applying its discretion, the Court must have regard to the degree of prejudice which suffered by the Claimant and the Defendant.
Section 33(3) states that the Court shall have regard to all the circumstances of the case and in particular to:
The length of, and the reasons for, the delay.
The extent to which evidence adduced is likely to be less cogent than if the action had been brought within the time allowed by Section 11 [or Section 12].
The conduct of the Defendant after the cause of action arose, including the extent to which he responded to requests reasonably made by the Claimant for information or inspection for the purpose of ascertaining facts which were or might be relevant to the Claimant’s cause of action against the Defendant.
The duration of any disability of the Claimant arising after the date of the accrual of the cause of action.
The extent to which the Claimant acted promptly and reasonably once he knew injury/circumstances might give rise to an action for damages.
The steps taken by the Claimant to obtain medical, legal or other expert advice and the nature of any such advice he may have received.
If you are thinking of pursuing a claim for medical negligence compensation, then the advice of our solicitors specialising in medical negligence claims is that you should contact our offices, as soon as possible. Our solicitors will offer you advice, at no cost to yourself, and with no obligation to instruct. If you do wish to instruct, and we feel that you have a viable claim for personal injury compensation, then our personal injury solicitors will accept your claim, on a No Win No Fee basis. Get in touch today, and our friendly team will be happy to assist.