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A reminder that limitation is a defence: Richards v McKeown & Another [2017] EWCA Civ 2374

By Katherine Sage


The recent Court of Appeal judgment in the case of Richards v McKeown & Another serves as a reminder that limitation is not an issue for summary judgment in personal injury claims. It is a defence, to be pleaded as such.

The Decision

The Claimant, originally acting in person, issued a claim against her original solicitors for financial losses consequent on their alleged professional negligence. Before serving the claim form, she amended to add a claim for damages for personal injury, namely stress. The personal injury claim was out of time, pursuant to section 11 of Limitation Act 1980.

The Defendants applied for an order that the claims against them be struck out, or there be summary judgment for the Defendants. Alternatively, that the amendments, which included the claim for personal injury, be disallowed because that element of the claim was statute barred.

At first instance, HHJ Halbert dismissed the claim on the limitation point alone. He held that the whole claim was subject to the three-year time limit in section 11 of the Limitation Act and that section 33 did not apply to “mixed” claims.

Holroyde J, on appeal, decided that section 33 did apply to “mixed” claims, but that the Claimant had not made a section 33 application nor an application to amend her claim to delete the personal injury elements and therefore, her whole claim should fail because it was time barred. He also found that the personal injury element was so “closely intertwined” with the remainder of the claim that it could not have been deleted.

The Court of Appeal disagreed.

In allowing the Claimant’s appeal it considered the following issues relevant:

  • That the Defendant’s original application in respect of the personal injury element had not been for strike out of the whole claim, but just to disallow those amendments and, therefore, that HHJ Halbert was wrong to deal with the section 33 issue summarily at the hearing of that application;
  • That the Claimant did not have to make a section 33 application. The normal course would be for section 33 to be pleaded in reply, if limitation was raised as a defence, and thereafter the matter should be dealt with as a preliminary issue or at trial.
  • That in this case, the personal injury element could be deleted from the pleadings and so severed from the remainder of the claim. There was no difficulty in disentangling it from the financial claim, which was in time.


The Court of Appeal’s judgment serves as a reminder of how limitation in personal injury claims should be dealt with. It is for the Defendant to raise as a defence in a statement of case, the Claimant can then plead section 33 in reply and the matter can be dealt with as a preliminary issue or at trial. It is not a matter which can usually be dealt with summarily, nor that requires a separate “section 33 application” by the Claimant. That said, to make good on a section 33 reply, a Claimant will ordinarily need to call witness evidence and Defendants will need to consider answering with evidence of their own.



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