A limitation defence refresher: what do you need to know?

Limitation continues to be one of the most powerful, and frequently contested, defences available for defendants. It is there so defendants are not continually exposed to potential claims. It is also an area which claimants are often willing to push back on with points being raised in relation to late awareness, continuing duties and deferred damage.  The recent decision of Memon v Rainer Hughes provides a useful reminder of some of the core principles, particularly around when the date of knowledge may have existed. It is therefore a good moment to revisit the statutory framework and the main pressure points for professional defendants when considering their potential defences.

Contractual claims
 
The ordinary limitation period for contractual claims runs from the date on which the cause of action accrues, subject to any statutory postponement or extension. In contractual claims, the primary period is six years from accrual for simple contracts and twelve years where the contract is executed as a deed (Limitation Act 1980, sections 5 and 8 respectively). For most contractual claims, the cause of action accrues at the date of breach, not when loss is discovered or suffered, with the result that time can expire before the claimant is aware of the claim.
 
Claims in tort
 
For claims in tort, section 2 of the Limitation Act 1980 imposes a six-year limitation period running from the date on which the cause of action accrued. In professional negligence claims, that usually means the date when duty, breach and damage first coexist. The difficulty, of course, lies in identifying when “damage” occurs.
 
The 15 year longstop date

Section 14B of the Limitation Act 1980 imposes an absolute 15 year cut-off. A claim cannot be brought more than 15 years after the defendant’s negligent act or omission. This is regardless of whether the claimant knew about the damage or not. This is why it is called a “longstop” — it sets a final deadline beyond which liability is extinguished.

There are, of course, exception to this, for example there is now effectively a 30 year longstop date in relation to certain claim under the Defective Premises Act 1972, that arises further to it being amended by the Building Safety Act 2022.
 
The date of knowledge defence

One of the most contested defences concerns the three year “date of knowledge” position advanced by claimants. Section 14A of the Limitation Act 1980 provides claimants with a potential escape route where the primary limitation period (six years) has already expired. It allows proceedings to be brought within three years of the claimant’s “date of knowledge”, subject to the 15 year longstop from the act or omission. Knowledge includes awareness of (i) the material facts about the damage, (ii) that the damage was attributable to the act or omission, and (iii) the identity of the defendant.
 
Two points are worth emphasizing. First, the threshold for knowledge is deliberately low. The claimant does not need to know that there was negligence, only that there was a real possibility that the damage was attributable to the professional’s conduct, making it difficult for claimants to rely on. Secondly, knowledge can often be inferred from documents already in the claimant’s possession: expert reports, adverse judgments, correspondence criticizing advice, or simply the incurring of unexpected costs. Claimants cannot delay the start of the three year period by sitting on information or seeking repeated advice.

The courts have also consistently emphasised that damage does not have to be the final or quantifiable loss. It is enough that the claimant is financially worse off in a real and measurable way. In Memon v Rainer Hughes [2026] 3 WLUK 262, the claimant alleged that his solicitors failed to advise him to pursue settlement but his date of knowledge was in 2018 when the trial took place (and the ultimate outcome was known). The County Court held that actionable damage was in fact suffered in 2016 when the claimant incurred and paid adverse costs which would not otherwise have been incurred (and when the opportunity to settle the claim arose). The court held once actionable damage had been suffered, the claimant could not revive the claim by pointing to later losses flowing from the same breach.

When assessing a date of knowledge, professionals should work forwards from the alleged breach and ask: when did the position first worsen in a way that was not merely speculative? They should not work backwards from the judgment, settlement date or final loss.

Continuing duty argument
 
A recurring claimant tactic is to argue that there has been a “continuing duty”, such that time does not begin to run until the retainer ends or the professional relationship concludes. The courts have repeatedly warned against over extension of this concept. A continuing duty is not the same as a continuing relationship. The key question is therefore whether there was a continuing obligation on professionals to review or correct earlier advice.

The 2026 case of Mendes v Slater & Gordon illustrates the point. The court rejected the suggestion that solicitors were under a continuing duty to revisit earlier advice without a specific trigger and that there was no rolling / ongoing limitation period (which the claimant argued there was). Similarly, in Memon v Rainer Hughes, the focus on limitation was on when loss first crystallised and not on when the litigation finally concluded.
 
However, cases such as Mitchell v Leigh Day [2025] EWHC 1081 (KB) show that earlier mistakes by professionals do not always equal actionable damage if those mistakes remain fixable. In this case, the actionable damage was from when the claim form had not been served in time, and not prior to this.
 
Professionals should therefore consider identifying discrete acts or omissions and asking whether there was any contractual or professional obligation to revisit them and whether any substantive right to complete something has already been lost.
 
Standstill agreements

It is also worth a reminder that standstill agreements are also available and an option when limitation is picked up, especially at a pre-action stage or where the parties wish to avoid the associated cost of litigation, explore settlement or avoid issue fees. The parties could instead enter into a standstill agreement before any time period expires. Such agreements are useful and allow the parties to extend or suspend the running of time for limitation purposes. Care should be taken to ensure existing defences remain intact.

Points to take away

For professionals, limitation remains a powerful defence and should always be considered from the on set.  It is a front loaded exercise and requires early identification of damage, careful analysis of a claimant’s knowledge, and scepticism about continuing duty arguments that can significantly narrow or defeat claims.
 
Professionals should:

• Identify the earliest point of real financial detriment, not the final loss
• Separate contract and tort analyses to limitation independently
• Scrutinise what the claimant knew based on documents and events
• Treat “continuing duty” arguments with caution and focus on the scope of the retainer

Used properly, limitation is not just a technical defence but a substantive one. Memon v Rainer Hughes is a helpful reminder that actionable loss often arises earlier than claimants would like to admit and that the clock may already be ticking.

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