Don’t get caught cold by the Limitation Freeze

Published 28 September 2020

When the UK Government introduced the first nationwide lockdown in March 2020 in response to the COVID-19 pandemic, the Association of British Insurers (ABI) moved quickly to agree a series of temporary measures in relation to personal injury claims (the Covid-19 PI Protocol). The list of signatories to the agreement extended to over 11 pages and included almost all of the leading insurers and law firms practising in this area.

The extension to the Personal Injury Pre-Action Protocol*, which was introduced on 24 March 2020 provided that “all limitation dates in all personal injury cases are frozen” for the period in time that the agreement took effect.

However, as both law firms and insurers adjusted to new ways of working in response to Covid-19, the temporary agreement came to an end on 30 June 2020. The net effect being that limitation dates were suspended for a period of 14 weeks in total.

The implications: What this means in practice is that personal injury practitioners will need to give consideration to how the revised limitation date will work in practice. By way of a worked example:

• Consider a claim to which the protocol applies that had 28 days to run until limitation expired on the date the Protocol first came into effect on the 24^th March 2020.
• The effect of the Protocol and its extensions is that limitation was effectively frozen for 14 weeks until the 30^th June when the clock again began to tick.
• The claimant therefore had 28 days from the 30^th June within which to bring their claim.  If they failed to do so, limitation will have expired.

Practical Advice: Whilst calculating the new limitation date may be a relatively straightforward exercise, one can see how it could very easily be missed or calculated incorrectly when you are running a busy personal injury practice with a large caseload, particularly when many practitioners continue to work from home in line with the current Government advice. Whilst most solicitors will diarise limitation at the very outset of a new matter, the 14 week limitation freeze introduces a further need to ensure that the revised limitation date is marked correctly and kept under review.

Practitioners should also be alive to the fact that there could be an added degree of complexity in cases whereby there are multiple Defendants; not all of whom signed up to the  Covid-19 Protocol. In which case, the original limitation date is still likely to apply to that aspect of the claim.

If limitation is due to expire, protective proceedings should of course be issued in the absence of putting in place an effective Standstill Agreement. It of course remains to be seen what approach both the Courts and insurers will take regarding limitation dates if proceedings are issued out of time and whether a short term temporary reprieve could still be secured by agreement with insurers and/or by the Court exercising its section 33 discretion.