ENGLAND & WALES Law and Practice Contributed by: Damian Taylor, Olga Ladrowska, Lawal Ijaodola and Eleanor Higginson, Slaughter and May
3. Initiating a Lawsuit 3.1 Rules on Pre-action Conduct
3.2 Statutes of Limitations Claimants must bring their claims within the prescribed periods of limitation; otherwise, the claims become time-barred. Most limitation peri- ods for different causes of action are laid down in the Limitation Act 1980. The basic limitation rule for claims based on breach of contract, tort or breach of trust is six years. Other limitation periods include one year for defamation claims and 12 years for claims arising out of deeds. A claim to enforce an arbitral award is usually sub- ject to the basic six-year limitation rule. The limitation period usually commences when the cause of action arises. Therefore, in contract claims, the limitation period runs from the date of the breach of contract. In tort claims, the accrual of the cause of action will vary depending on the tort in question. In negligence claims, for example, the cause of action typically arises on the date on which the damage is suffered. How- ever, in certain circumstances, such as where the claimant could not reasonably have discov- ered their right to bring a claim due to fraud or deliberate concealment by the defendant, the commencement of the limitation period begins when the claimant becomes aware of the fraud or concealment, or when they reasonably could have become aware of it. The limitation period stops running when the claim form issuing pro- ceedings is received by the court. Litigants may also be able to suspend or extend a limitation period by agreeing a standstill agreement. 3.3 Jurisdictional Requirements for a Defendant The rules on jurisdiction have changed following the UK’s withdrawal from the EU. Generally, for civil or commercial proceedings initiated on or before 31 December 2020, the courts apply the rules in the Recast Brussels Regulation, while for proceedings initiated after 31 December 2020
Before commencing proceedings, litigants are expected to follow the guidelines on pre-action conduct. These rules are contained in pre-action protocols that apply to certain types of dispute (such as debt claims and professional negli- gence claims). There is also a general practice direction, called the Practice Direction on Pre- Action Conduct and Protocols, which applies if there is no specific pre-action protocol for a particular dispute. The requirements between the different proto- cols vary. Broadly speaking, the protocols require that the claimant is expected to provide written details of the claim to the defendant before com- mencing an action, including a summary of the relevant facts and the claimant’s desired rem- edy. The defendant is expected to respond to the claimant within a reasonable period, setting out which facts are accepted or disputed and any counterclaim the defendant wishes to bring. Claimants and defendants are expected to dis- close to each other any significant documents that are relevant to the dispute. The pre-action requirements seek to ensure that litigants have sufficient information to under- stand each other’s case and generally to sup- port efficient management of proceedings. They also encourage litigants to consider alternative dispute resolution options to achieve settlement. Although compliance with the pre-action proto- cols is not mandatory, there can be significant consequences for failure to comply. The court may take non-compliance with the protocols into account when awarding costs or interest rates on amounts due, or when considering case management directions.
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