Lawcovernotes August 2017

Claims arising from limitation issues, such as failing to diarise dates or manage calendars properly, or failing to determine or act within a specific deadline, constitute a high percentage of claims to Lawcover. In the past, these claims have largely arisen from a solicitor missing a limitation period on a personal injury compensation claim relating to a work or motor vehicle accident, or an accident occurring on premises. Now Lawcover is seeing an increase in missed limitation claims arising from contractual disputes, family law, family provision, rectification of wills, superannuation and employment law disputes. Identifying both the limitation period applicable to a matter and the commencement date of that period is imperative. Identification of the relevant limitation period can be done simply by referring to the legislation on the type of matter at hand. However, what is more difficult is identifying when a period commences. This is further complicated by the myriad of potential applicable legislation. For example, the commencement of the limitation period may vary from a defined date (such as the date of an accident or a death) to a descriptive date (such as when the cause of action arises or is discoverable). It also varies depending on the cause of action being pursued. A further complication which solicitors should bear in mind is that a client may have more than one cause of action arising from a loss. Solicitors need to exercise a high degree of care when identifying the commencement of the relevant limitation period as this will determine the expiry of the limitation period. Limitation period ‘time bombs’ have caught many solicitors unaware on the receipt of a transferred file. In these instances, the impending limitation periods were not identified prior to the solicitor accepting the retainer. Before taking on a matter a prudent solicitor should advise the client that enquiries must be undertaken. These may include conflict checks, assessment of the matter (and whether the practice has the required expertise and resources to handle it), whether the prior law practice’s fees have been paid and checks of the limitation periods. First a solicitor must undertake relevant enquires and correctly identify the relevant limitation period dates. Then they will have to implement systems to ensure compliance with those dates. This is best done through effective practice and diary keeping systems, which can help track deadlines and key dates. Such systems may include: ^ ^ Electronic diary and filemanagement ^ ^ Calendar reminders ^ ^ Systematic peer file reviews ^ ^ Periodic general file audits It is also important for the solicitor to advise the client of the impending expiration of a limitation period, particularly if the client is slow to respond to requests for instruction. Putting advice about limitations in writing can be the difference between successfully defending a claim and being forced to settle. The Schedule of Limitation Periods in Civil Matters in NSW is available on the Lawcover website. This is a helpful general guide. However, solicitors should remember that the Lawcover schedule does not include all limitation periods and checking it does not obviate the need for appropriate legal research and diligence. Tony Reynolds Claims Solicitor A lack of care and appropriate systems can result in claims regarding missed or unidentified limitation periods. 7.