Pre-Action Considerations — SQE1 FLK1 Dispute Resolution

In June 2007 a structural engineer designed the steel frame of a distribution warehouse. The design was negligent: the connections were under-specified. The building opened in March 2008 and the connections began failing the moment the frame was loaded. Nobody could have found the defect without stripping out the cladding, and nobody did until a survey in February 2024. The company issued a claim that November. Is it in time? No.

It has not been in time since June 2022. Fifteen years from the negligent design, and that deadline runs whether or not anybody could have known. Two things derail a claim before it even starts. Missing the limitation date, and skipping the steps you are expected to take before you issue. Pre-Action Considerations. Keep that warehouse in mind.

Here is the route. Limitation first, because it is the one that ends careers: the periods, when the clock starts, and what stops it. Then the ways time can be restarted or postponed. Then pre-action conduct, the letter before claim, and what happens if you skip it. Then governing law for cross-border disputes. And last, the Welsh language.

Start with why limitation matters more than anything else here. Limitation periods set the time limits for starting proceedings. Once time runs out the claim is statute-barred, the defendant raises it as a complete defence, and the claim is gone. In most cases there is no discretion to save you. Missing a limitation date is professional negligence territory. Diarise it, and check it.

The periods you need cold, and they are almost all in the Limitation Act 1980. Simple contract: six years, section 5, from the date of breach. A contract made by deed, a specialty: twelve years, section 8. Tort generally: six years, section 2, from the date the damage was sustained.

Personal injury: three years, section 11, from the date of knowledge. Latent damage: three years from knowledge under section 14A, with a longstop we will come back to. Defamation: one year, section 4A, from publication. Recovery of land: twelve years, section 15. And a claim under the Human Rights Act 1998: one year, section 7(5).

Contract first, and the trigger is the date of breach. A builder finishes an extension on 30 June 2018 and the final instalment of £15,000 falls due that day. The homeowner refuses to pay. Six years from 30 June 2018, so the claim must be issued by 30 June 2024. Not from the date the contract was made. And not from January 2024, when the homeowner finally came into money. Limitation is not postponed because suing would have been pointless.

Watch for continuing breaches. A one-off breach starts the clock once. But rent under a lease falls due instalment by instalment, and each unpaid instalment is its own cause of action. Section 19 gives six years for arrears of rent, so a landlord who does nothing for years recovers only what fell due in the six years before the claim. Everything older has gone.

Tort next, and the difference matters. Time runs from when damage is sustained, not from the negligent act. A contractor builds a retaining wall badly in July 2016. It looks sound for years. After heavy rain in March 2022 it cracks and collapses, wrecking a patio. Six years from March 2022, not from 2016. There was no cause of action in 2016, because no damage had yet happened.

Personal injury is different again. Three years, from the later of the accrual of the cause of action and the claimant's date of knowledge. Knowledge means three things. That the injury was significant. That it was attributable to the act or omission complained of. And the identity of the defendant. Knowing that what happened amounted in law to negligence is irrelevant.

Work one through. A woman has abdominal surgery in February 2019 and makes a full recovery. No symptoms of any kind until August 2022, when she gets a sharp pain at the site. A scan on 20 August 2022 shows a surgical clip left inside her. When does her clock start? August 2022. She had no reason to seek advice sooner, so her claim must be issued by August 2025.

But there is an objective limb. Section 14 adds the knowledge you might reasonably have been expected to acquire, including from advice it was reasonable to seek. That limb is judged objectively, not by your particular character. Forbes v Wandsworth Health Authority, from 1997. So a man exposed to asbestos who has no symptoms for over thirty years had no reason to seek advice. General awareness that a substance is dangerous is not knowledge of an injury.

Two special rules. Under section 28, if the claimant was under a disability when the cause of action accrued, time does not start until the disability ends. A child injured at twelve has three years from her eighteenth birthday, so until she is 21. Someone who lacked capacity at the time has three years from recovering it, and if capacity never returns there is no limit at all.

Note what section 28 does not do. It suspends time only where the disability existed when the cause of action accrued. A cyclist with full capacity at the time of her accident, who has a stroke the following year and loses capacity, does not stop the clock. It had already started running.

Which brings in the one real safety net. Section 33 lets the court disapply the three-year period where it is equitable to do so. The court weighs the length of and reasons for the delay, how much less cogent the evidence has become, the defendant's conduct, and how promptly the claimant acted. But read the boundary. Section 33 covers personal injury and claims under the Fatal Accidents Act 1976. Not contract. Not tort generally. Not property.

Now back to our warehouse. Latent damage is damage that exists but cannot be discovered. Section 14A gives three years from the date the claimant first had both the knowledge to bring an action and the right to bring one. That extension sounds generous. Then section 14B takes it away. No such action may be brought more than fifteen years after the negligent act or omission, whether or not the cause of action has even accrued.

So. Negligent design, June 2007. Longstop expires, June 2022. Survey, February 2024. Claim, November 2024. Dead, and dead before the company had any way of knowing there was a claim to bring. That is what a longstop is for, and it is where candidates stop reading.

Time can also be restarted, in two ways. An acknowledgement of the debt, which must be in writing and signed by the debtor. Or a part payment on account of it. Either causes the right of action to be treated as accruing afresh, so the full period begins again from that date. Saying you will see what you can do is not an acknowledgement. Writing that you owe £5,000 and will pay when you can, and signing it, is.

Two limits, and both are examinable. First, this works only for a debt or other liquidated claim, a sum you can count rather than assess. An insurer who pays £5,000 towards a personal injury claim restarts nothing, because damages for injury are assessed. Second, and this is the trap: an acknowledgement or payment made after the period has expired cannot revive the claim. Once it is dead it stays dead.

One more postponement. Under section 32, where the defendant has deliberately concealed a fact relevant to the claim, time does not begin to run at once. It begins when the claimant discovers the concealment, or could have discovered it with reasonable diligence. A builder who finds a cracked steel beam he has installed, boxes it in behind plasterboard and says nothing, has deliberately concealed it. When an electrician exposes it years later, the clock finally starts.

Second half. Before you issue, you are expected to have done things. The Practice Direction on Pre-Action Conduct requires the parties to exchange enough information to understand each other's positions, to consider ADR, and to try to settle. Some claims have their own protocols with detailed steps: construction and engineering, professional negligence, personal injury, clinical negligence, housing disrepair, debt claims.

The letter before claim carries the weight. A clear summary of the facts. The loss quantified. The legal basis of the claim. The remedy sought. The key documents. A reasonable time to respond, usually 14 days in a straightforward case and up to three months in a complex one. And a proposal for ADR. A letter that gives the facts and the figure and nothing else is not enough.

The specific protocols set their own clocks. Professional negligence: 21 days to respond, extendable by agreement. Construction: 14 days to acknowledge, 28 days for the letter of response, then a meeting to identify the issues and consider how to resolve them. Clinical negligence: 14 days to acknowledge. Debt claims: a standard form, and 30 days to reply.

Skip all of it and the court has powers. A stay of proceedings until the steps are taken. Costs, often on the indemnity basis. A higher rate of interest on damages. Adverse inferences. And in extreme cases, striking out. A company that issues a professional negligence claim with no letter of claim, no chance for the accountants to investigate, and years of limitation still to run? It gets exactly that. A stay, and the costs of the application.

There are good reasons to issue first. A limitation period about to expire. Urgent interim relief. A defendant evading service. Then you issue and apply for a stay so the steps can be taken. Not being bothered, or simply wanting to get on with it, is not. And take ADR seriously. Since Churchill v Merthyr Tydfil, in 2023, and the October 2024 amendments, the court can order parties to engage in it, and stay proceedings while they do.

Three practical points before we leave limitation. First, a claim is brought when the request for a claim form is received in the court office, not when the court gets round to issuing it. Hand it in with the fee on 5 June and keep the date-stamped receipt. It does not matter that the court issues on 11 June, or that the period ran out on the 9th.

Second, where limitation is close and the protocol is unfinished, the parties can agree a standstill: a written agreement that time will not run for an agreed period. No court order is needed, because limitation is a defence the defendant can agree not to take. Third, it has to be taken. Expiry bars the remedy, not the right, the court will not raise the point itself, and it must be pleaded.

Governing law now, for anything cross-border. Rome I for contracts, Rome II for torts, both retained in domestic law after the United Kingdom left the European Union. Rome I starts with party autonomy. The parties may choose, and the chosen law needs no connection with them or with the deal. A German seller and a French buyer can choose the law of England and Wales, and the English court will apply it.

With no choice made, Rome I supplies defaults. Sale of goods: the law of the seller's habitual residence. Services: the service provider's. So an English buyer of an Italian bottling line, with no governing law clause, is in Italian law, whatever the currency and wherever the machine was delivered. Rome II is different. The general rule is the law of the country in which the damage occurs.

Injured in France by a British driver? French law, even though the trial is in England. But there is one exception you must know. Where the person claimed to be liable and the person who suffered the damage were habitually resident in the same country when the damage occurred, that country's law applies instead. Two colleagues from England who crash a hire car in Spain are in English law.

Last, and it is a quick mark. In proceedings in Wales the Welsh language may be spoken by any party or witness who wishes to use it, under section 22 of the Welsh Language Act 1993. The court arranges interpretation and bears the cost. The right does not depend on the speaker being unable to speak English, and it does not depend on the other side agreeing.

A word on how SQE1 tests this. You will not be asked to name a case or quote a section number. You get a scenario, five answers, and one instruction: pick the best one. So learn the rules, and how they decide facts. The names in this episode are memory pegs, nothing more.

If you keep only three. The Limitation Act 1980, because almost every answer in this topic is somewhere in it. Forbes v Wandsworth Health Authority, for the objective limb of the date of knowledge. And Churchill v Merthyr Tydfil, because the court can now order you to the table, which makes ignoring ADR before issue an expensive habit.

Four traps the examiners set. One: the fifteen-year longstop. Candidates find the date of knowledge, extend the three years, and stop reading. Section 14B bars the action fifteen years after the negligent act whatever anybody knew, and there is no power to extend it.

Two: section 33 is not a general rescue. The discretion to disapply a limitation period is confined to claims for personal injuries and claims under the Fatal Accidents Act 1976. There is no equivalent in contract, in tort generally, or in property.

Three: acknowledgement and part payment work only for a debt or other liquidated claim. A payment towards a personal injury claim restarts nothing, because those damages are assessed rather than counted. And neither can revive a claim that has already expired.

Four: wanting to issue quickly is not a good reason for skipping the pre-action steps. A limitation period about to expire is a good reason, and so is urgent relief, or a defendant evading service. Then you issue, and you apply for a stay so the steps can be taken.

Quick check. A supplier delivered goods to a retailer on 30 days' credit, the invoice for £10,000 falling due on 31 May 2015. The retailer never paid, and never made a payment of any kind. On 12 June 2022 its managing director emailed the supplier: we accept that the 2015 invoice is owed, and we will settle it as soon as trading improves. The email was signed. The supplier issued a claim in December 2023.

Did that email revive the right to sue? Three candidate answers. One: yes, because it was a written acknowledgement signed by the debtor, which restarts the period. Two: no, because a promise to pay when trading improves is not a clear admission of the debt. Three: no, because the six-year period had already expired when the email was sent. Pause here if you want a moment.

The answer is three. The invoice fell due on 31 May 2015, so the six years ran out on 31 May 2021, and the email came more than a year late. A signed written acknowledgement does restart the clock, but only while the claim is alive. A right of action already barred is not revived by any later acknowledgement or payment.

Why the others fail. One states the general rule and ignores the timing, which is the whole question. Two reaches the right destination by the wrong route. This email admitted in terms that the invoice was owed, so the wording was not the problem. The date was.

Five things to take away. One: contract, six years from the breach. Tort, six years from the damage, not the negligent act. Personal injury, three years from knowledge. Defamation, one year from first publication.

Two: latent damage gets three years from knowledge, then section 14B ends it fifteen years after the negligent act. Three: an acknowledgement in writing and signed, or a part payment, restarts the clock on a debt, but only while the claim is alive. Four: before you issue, a proper letter before claim, the key documents, a reasonable time to respond, and an ADR proposal.

Five: cross-border, Rome I for contracts, party choice first, and Rome II for torts, the place of the damage. And our warehouse? Negligent in 2007, failing since 2008, dead in June 2022, before anyone knew there was anything to claim about. Check the longstop first. Next time, Commencing a Claim.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.