© strawberrywaffles 2025
Starting a civil claim
Burden of proof (on claimant): balance of probabilities
Parties
All parties jointly entitled to a remedy must be parties.
- Cannot add as claimant without consent
- If no consent is given, must add as defendant
- Partnerships: sue the partnership in its trading name, even if the breach was
committed by only one partner
Children & protected parties
- Children and protected parties (who lack capacity) represented by a litigation friend
- Any steps/applications taken before the child/protected party has a litigation friend
will be ineffective, unless the court orders otherwise
- MUST have a litigation friend
- Court can order proceedings to commence/continue without litigation friend
- Documents to be served on child/protected party must be served on litigation friend
o Exception: a claim form may be served on the child before a litigation friend is
appointed
- Requirements:
o Can fairly and competently conduct proceedings on behalf of the child or
protected party,
o No adverse interest to that of the child or protected party, and
o Where the child or protected party is a claimant, undertakes to pay any costs
which the child or protected party may be ordered to pay in relation to the
proceedings, subject to any right he may have to be repaid from the assets of
the child or protected party
- Appointments for a litigation friend: file and serve certificate of suitability that the
litigation friend meets the above criteria, at the time the claim is made or when the
child takes the first step in the proceedings as defendant
- Children and protected parties will be referred to as “Name (child/protected party,
litigation friend)”
o E.g. “Adam Black (a protected party by Kate Brown his litigation friend)”
,© strawberrywaffles 2025
Limitation periods: contract and tort
Date of knowledge = knowing:
1. That the injury was significant / material facts about damage
2. That the injury was attributable in whole/part to the wrongdoing
3. D’s identity
4. If it is alleged that the wrongdoing was done by someone other than D, the identity of
that person + additional facts supporting this
*Includes knowledge that C might have reasonably have been expected to acquire from
an expert or facts observable/ascertainable by them
*No need to know that they have a claim in negligence – knowledge of facts only.
Type of claim Limitation period
PI 3 years of (whichever is later)
- Date when cause of action accrued, or
- Date of knowledge of person injured
Fatal accident – employee dies at 3 years of (whichever is later)
work due to employer’s negligence → - Date of death, or
deceased’s dependents can claim - Date of dependent’s knowledge
Cannot claim if limitation has expired under
PI rules
Contribution (D1 claims contributory 2 years of the date when the right to recover the
negligence from D2) contribution arises
- Date of judgment against D1
- If no judgment but D1 agreed to pay, date
on which amount to be paid was agreed
Latent damage (negligence other than Whichever is later:
PI) - 6 years of when cause of action accrued
i.e. damage that is not immediately - 3 years from when C had requisite
obvious (e.g. building defects) knowledge and the right to bring a claim
NB: long-stop limitation period of 15 years
from date of the latest negligent act/omission
which caused all/part of the damage
Claim to enforce judgment & recover 6 years of when judgment became enforceable
interest
,© strawberrywaffles 2025
Tort and contract claims 6 years of
- Date of harm caused (tort)
- Date of breach (contract)
NOT date of knowledge of damage
Disability – i.e. under 18 or lacks Limitation starts from when disability ends (e.g.
mental capacity the date when C turns 18)
Limitation:
- Contribution: 2 years
- PI/fatal accidents: 3 years
- Most other cases: 6 years
Fraud Limitation period only starts to run when C
- Claim based on fraud discovers the fraud, concealment or mistake /
- D deliberately concealed any could have discovered it with reasonable
relevant fact about the diligence.
proceedings, or
- Action is for relief from
consequences of mistake
Extension of limitation period – ONLY FOR PI / FATAL ACCIDENT CLAIMS
- Court can extend limitation time if equitable (discretion)
- Prospective claimant must apply
- Factors for court:
o Conduct of the parties
o Reasons for the delay
o Effect of a late claim on the evidence
If solicitor is being instructed by client on the day of expiry of limitation period, can issue a
claim “protectively” to protect client’s interests and conduct preliminary investigations.
Note that any contractual limitation period (as long as it is reasonable under UCTA) will
override statutory limitation periods.
Limitation period expired = C can still bring claim, but D has a defence
, © strawberrywaffles 2025
Practice Direction – pre-action conduct
Purpose of pre-action conduct:
- Allow parties to understand each other’s positions
- Make decisions about how to proceed
- Try to settle issues without issuing proceedings
- Consider ADR to assist with settlement
- Support the efficient management of those proceedings
- Reduce the costs of resolving the dispute
Consequences of non-compliance:
- Party at fault pays costs of the proceedings, or a portion of the other’s costs
- Party at fault pays costs on an indemnity basis
- If party at fault is a claimant who has been awarded a sum of money, deprive that
party of interest or award interest at a lower rate
- If party at fault is D and the claimant has been awarded a sum of money, award
interest at a higher rate (max 10% higher) than without the non-compliance
- Court may stay the proceedings
- Court may ask for an explanation of non-compliance
When is non-compliance ok?
- Limitation period about to expire
o Parties normally need to apply for a stay of proceedings to comply with pre-
action procedure
- Need for urgent proceedings / element of surprise
o “without notice” applications
o A party can apply to court for a search order → unannounced revisit to the
opponent’s premises to search for documents (fear that opponent will destroy
documents → it would defeat the purpose of a search if a party was required
to write to the other side before applying to court)
- Minor issues e.g. statement of case served 1 day late
Pre-action protocol to be complied with BEFORE issuing proceedings
Starting a civil claim
Burden of proof (on claimant): balance of probabilities
Parties
All parties jointly entitled to a remedy must be parties.
- Cannot add as claimant without consent
- If no consent is given, must add as defendant
- Partnerships: sue the partnership in its trading name, even if the breach was
committed by only one partner
Children & protected parties
- Children and protected parties (who lack capacity) represented by a litigation friend
- Any steps/applications taken before the child/protected party has a litigation friend
will be ineffective, unless the court orders otherwise
- MUST have a litigation friend
- Court can order proceedings to commence/continue without litigation friend
- Documents to be served on child/protected party must be served on litigation friend
o Exception: a claim form may be served on the child before a litigation friend is
appointed
- Requirements:
o Can fairly and competently conduct proceedings on behalf of the child or
protected party,
o No adverse interest to that of the child or protected party, and
o Where the child or protected party is a claimant, undertakes to pay any costs
which the child or protected party may be ordered to pay in relation to the
proceedings, subject to any right he may have to be repaid from the assets of
the child or protected party
- Appointments for a litigation friend: file and serve certificate of suitability that the
litigation friend meets the above criteria, at the time the claim is made or when the
child takes the first step in the proceedings as defendant
- Children and protected parties will be referred to as “Name (child/protected party,
litigation friend)”
o E.g. “Adam Black (a protected party by Kate Brown his litigation friend)”
,© strawberrywaffles 2025
Limitation periods: contract and tort
Date of knowledge = knowing:
1. That the injury was significant / material facts about damage
2. That the injury was attributable in whole/part to the wrongdoing
3. D’s identity
4. If it is alleged that the wrongdoing was done by someone other than D, the identity of
that person + additional facts supporting this
*Includes knowledge that C might have reasonably have been expected to acquire from
an expert or facts observable/ascertainable by them
*No need to know that they have a claim in negligence – knowledge of facts only.
Type of claim Limitation period
PI 3 years of (whichever is later)
- Date when cause of action accrued, or
- Date of knowledge of person injured
Fatal accident – employee dies at 3 years of (whichever is later)
work due to employer’s negligence → - Date of death, or
deceased’s dependents can claim - Date of dependent’s knowledge
Cannot claim if limitation has expired under
PI rules
Contribution (D1 claims contributory 2 years of the date when the right to recover the
negligence from D2) contribution arises
- Date of judgment against D1
- If no judgment but D1 agreed to pay, date
on which amount to be paid was agreed
Latent damage (negligence other than Whichever is later:
PI) - 6 years of when cause of action accrued
i.e. damage that is not immediately - 3 years from when C had requisite
obvious (e.g. building defects) knowledge and the right to bring a claim
NB: long-stop limitation period of 15 years
from date of the latest negligent act/omission
which caused all/part of the damage
Claim to enforce judgment & recover 6 years of when judgment became enforceable
interest
,© strawberrywaffles 2025
Tort and contract claims 6 years of
- Date of harm caused (tort)
- Date of breach (contract)
NOT date of knowledge of damage
Disability – i.e. under 18 or lacks Limitation starts from when disability ends (e.g.
mental capacity the date when C turns 18)
Limitation:
- Contribution: 2 years
- PI/fatal accidents: 3 years
- Most other cases: 6 years
Fraud Limitation period only starts to run when C
- Claim based on fraud discovers the fraud, concealment or mistake /
- D deliberately concealed any could have discovered it with reasonable
relevant fact about the diligence.
proceedings, or
- Action is for relief from
consequences of mistake
Extension of limitation period – ONLY FOR PI / FATAL ACCIDENT CLAIMS
- Court can extend limitation time if equitable (discretion)
- Prospective claimant must apply
- Factors for court:
o Conduct of the parties
o Reasons for the delay
o Effect of a late claim on the evidence
If solicitor is being instructed by client on the day of expiry of limitation period, can issue a
claim “protectively” to protect client’s interests and conduct preliminary investigations.
Note that any contractual limitation period (as long as it is reasonable under UCTA) will
override statutory limitation periods.
Limitation period expired = C can still bring claim, but D has a defence
, © strawberrywaffles 2025
Practice Direction – pre-action conduct
Purpose of pre-action conduct:
- Allow parties to understand each other’s positions
- Make decisions about how to proceed
- Try to settle issues without issuing proceedings
- Consider ADR to assist with settlement
- Support the efficient management of those proceedings
- Reduce the costs of resolving the dispute
Consequences of non-compliance:
- Party at fault pays costs of the proceedings, or a portion of the other’s costs
- Party at fault pays costs on an indemnity basis
- If party at fault is a claimant who has been awarded a sum of money, deprive that
party of interest or award interest at a lower rate
- If party at fault is D and the claimant has been awarded a sum of money, award
interest at a higher rate (max 10% higher) than without the non-compliance
- Court may stay the proceedings
- Court may ask for an explanation of non-compliance
When is non-compliance ok?
- Limitation period about to expire
o Parties normally need to apply for a stay of proceedings to comply with pre-
action procedure
- Need for urgent proceedings / element of surprise
o “without notice” applications
o A party can apply to court for a search order → unannounced revisit to the
opponent’s premises to search for documents (fear that opponent will destroy
documents → it would defeat the purpose of a search if a party was required
to write to the other side before applying to court)
- Minor issues e.g. statement of case served 1 day late
Pre-action protocol to be complied with BEFORE issuing proceedings
