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Under section 11 of the Limitation Act 1980 (the Act), a claim for compensation for personal injury for negligence must be issued by a court within three years of the date when the injury occurred or the date of knowledge of the person injured (if later). Date of knowledge generally is the date when the claimant knows (having made reasonable enquiry) they have the right to bring a claim. However, a claim that is statute barred by section 11 may still proceed if the claimant can persuade the court to exercise its discretion under section 33 of the Act.
In Rayner v Wolferstans (a firm) and Medway NHS Foundation Trust the court was required to determine preliminary limitation issues regarding the claimant’s negligence claims against Wolferstans (her former solicitors) and Medway NHS Foundation Trust (Medway).
The court found the claimant's knowledge ran from 22 July 2004, when she believed her injuries had been caused by the Trust’s negligence. The claim was therefore time barred.
However the court decided to exercise its discretion under section 33 of the Act and disapply section 11 and allow the claim against Medway to proceed.
Factors influencing the court’s decision:
The emphasis now therefore seems to be on the potential prejudice suffered by parties.
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