Proposed Law Change may affect Veterans' Access to Justice
A recent Law Gazette article reports that junior defence minister Johnny Mercer insists he is not seeking to restrict veterans’ ability to make compensation claims for injuries that develop after their service on foreign tours. This comes in the wake of some criticism and debate that such time limits to make a claim will be restricted to a maximum of six years under part two of the Overseas Operations (Service Personnel and Veterans) Bill, which is currently being debated in the House of Commons.
The current position under the Limitation Act 1980, is that a claimant has three years from the date of the injury, or date of knowledge of the injury, to pursue a claim. Once that three-year period has expired, a defendant is then able to argue the claim is ‘statute-barred’ and should be struck out by the court. However, the Act does allow a court to exercise its discretion to allow a claim to proceed “if it appears equitable to do so”, taking into account a number of factors including the impact the delay has had on the defendant’s ability to defend the claim, the length and reasons for the delay, and the extent to which the claimant acted promptly and reasonably once they were aware of the act or omission which caused the injury. There is no time limit under which a claimant must ask the court to exercise its discretion.
In practice the threshold which must be achieved before the court will exercise its discretion is one that is not easily overcome. Generally speaking, a claimant needs to show an exceptional reason for failing to bring a claim within the three-year time limit and that this does not detract from the defendant’s ability to defend the claim. It is not good enough for a claimant to simply say they were unaware they could claim.
The proposed amendments would remove that discretion in claims brought by those injured in service from the point at which the cause of action (whether that be from the date of the injury, or the onset of the condition caused by negligence of the defendant) was over six years old. Accordingly, those who seek to bring a claim six years or more after the event will be completely barred from doing so should the Bill become law.
Commenting on the developments, Steve Green, Partner and Head of Personal Injury and Medical Negligence at Fosters Solicitors, said: “I am disappointed to learn of the proposed amendments. Whilst only a very small number of claimants may be affected, it will inevitably lead to cases of injustice, which a court could have prevented, if it were permitted to use its discretion. To ensure you are able to pursue a case, it is very important that you seek legal advice at the earliest opportunity to ensure you preserve your right to bring a claim.”
If you believe you may have a claim for personal injury and would like advice, please give one of our specialist team a call on 01603 620508.
This article was produced on the 11th August 2020 by our Personal Injury & Group Actions team for information purposes only and should not be construed or relied upon as specific legal advice.