Disability, fraud, concealment and mistake—sections 28 and 32 of the Limitation Act 1980

The following PI & Clinical Negligence practice note provides comprehensive and up to date legal information covering:

  • Disability, fraud, concealment and mistake—sections 28 and 32 of the Limitation Act 1980
  • Persons under a disability
  • Claimants under a disability
  • When does someone lack capacity?
  • What should you do if you have a client who may lack capacity?
  • What is the effect of a disability for limitation purposes?
  • What is the position where a cause of action accrues to someone and they subsequently lose capacity?
  • What is the position where the claimant (who is under a disability) inherited the claim from someone not under a disability?
  • Subsequent claimants each with a disability
  • What happens if the Limitation Act 1980 does not apply?
  • More...

Disability, fraud, concealment and mistake—sections 28 and 32 of the Limitation Act 1980

Persons under a disability

Claimants under a disability

For the purposes of the Limitation Act 1980 (LA 1980) a claimant is under a disability while they:

  1. are a child under 18 years of age, or

  2. lack capacity (as defined by the Mental Capacity Act 2005 (MCA 2005)) to conduct legal proceedings

When does someone lack capacity?

A person will lack capacity in relation to a matter if at the material time they are unable to make a decision for themselves in relation to the matter because of an impairment of, or a disturbance in the functioning of, their mind or brain.

A person will be unable to make a decision if they are unable to:

  1. understand the information relevant to the decision

  2. retain the information

  3. use or weigh up that information as part of the decision-making process

  4. communicate their decision (whether by talking, using sign language or any other means)

For further guidance, see Practice Note: Mental capacity in personal injury claims.

What should you do if you have a client who may lack capacity?

If you have a client whom you suspect may lack capacity, you should discuss the matter with your supervising partner, and consider:

  1. having them assessed by an appropriate medical expert (often, but not always, a consultant neuropsychologist), and

  2. appointing a litigation friend—see Practice Note: Procedural

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