1

I started working for a personal injury firm a few months ago and am responsible for filing civil lawsuits with the court.

In most cases, we filed them right before the statute of limitations is about to run out.

Is this a typical practice? It seems like a bad idea to me personally.

Suppose the complaint was rejected and the statute of limitations has expired. Can a law firm submit a corrected complaint and still have it be accepted even though time has run out?

4
  • 3
    You work for a law firm and are asking randos on the web for legal advice? Jul 19 at 22:42
  • 2
    To be honest, I am not worried about missing the deadline. What I really want to know is if waiting to the last minute is some tactic lawyers use that I just don’t understand. Jul 19 at 23:36
  • 3
    @BlueDogRanch I am glad they asked here because I am interested in the answer. If they had asked their coworkers then the site would be missing at least one question from its “library of detailed answers to every question about law”.
    – ColleenV
    Jul 20 at 13:15
  • 1
    This is not a question asking for specific legal advice, and it should not have been closed as such. It asks what the law permit (filing a corrected suit) and about typical legal practice. I am therefor voting to reopen Jul 21 at 0:15
1

Jurisdiction: England and Wales

Applicability: Courts governed by the Civil Procedure Rules

Suppose the complaint was rejected and the statute of limitations has expired. Can a law firm submit a corrected complaint and still have it be accepted even though time has run out?

This depends on what you mean by "rejected":

  1. If you mean that judgment was issued in favour of the defendant then under the principle of res judicata you will not be able to file a "corrected" complaint relating to the same cause of action. This is the case regardless of whether or not the limitation period hass expired. You would need to use the usual remedies available to a losing party (e.g. appeal, setting aside, varying, etc.). You may find it challenging to introduce new arguments at appeal which could have been raised in the first instance case but were not.

  2. If you mean that you made some procedural error in relation to the claim, then it will depend on which rule of court you contravened. Some rules permit the court to exercise its discretion while others do not. If the court has invalidated your claim without allowing you to fix the error then you will only be able to bring a fresh claim if you are still within the limitation period. A claim is "brought" when a request for the issue of a claim form is delivered to the correct court office during its opening hours (Barnes v St Helens MBC [2006] EWCA Civ 1372).

  3. If you mean that you have become aware that your statement of case contains errors or other content that you would like to change, then you can try to have it amended. If you have not yet served it on the other party then you can do so without the court's permission (CPR 17.1(1). If you have already served it then you will need either the other party's consent or the permission of the court (CPR 17.1(2)). CPR 17.4 provides that where a party applies to amend a statement of case and a limitation period has expired, "the court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings." Other rules apply in the case of changing the name of a party or altering the capacity in which the party brings the claim (CPR 17.4(3) and (4), 19.4, and 19.5).

More generally, bringing a claim at the last minute can have some disadvantages. If you are seeking interest on a money claim, the court may be reluctant to award it at the rate and for the period that you would have hoped for if it is not the defendant's fault that you delayed. There could also be cost implications based on your conduct before the proceedings (CPR 44.4).

The court will generally take a dim view of "tactical" use of a limitation period if doing so goes against the court's overriding objective and the duty of the parties to further that objective (CPR 1.1 and 1.3). There can also be cost implications if you have issued a last-minute claim without observing the practice direction on pre-action conduct and protocols. However this last point can be fixed by issuing the claim in time and then applying to court for a stay of proceedings while you comply with the pre-action PD (Pre-action PD paragraph 17).

Also, for some causes of action, the speed at which you bring a claim may be a factor in your chances of success. For example, the governing law for that cause of action might provide that it is a factor. Physical evidence can become lost or unavailable. Witness evidence may be less credible given the passage of time. Etc.

0

Like any other strategic decision, waiting until the eve of the SOL carries both risks and rewards, which need to be evaluated on a case-by-case basis.

As you noted, doing so runs the risk that the entire case dies simply because there was some technical deficiency in the complaint, because the clerk's e-file system goes down for routine maintenance, or because the lawyer got a flat tire on the way to the courthouse.

But there can also be advantages to waiting. Doing so extends the time available in which to negotiate pre-suit, to informally investigate claims and defenses, and strategize the overall case. There are also, as I understand it, several jurisdictions where doing so could limit the defendant's ability to bring counterclaims; some states will allow an out-of-time counterclaim arising out of the same facts as in the complaint, but I believe there are others where failing to file your own case would leave you without any viable counterclaim.

0

Is this a typical practice? It seems like a bad idea to me personally.

It is typical with respect to filing not only the complaint, but also [defendant's] responsive pleadings, responses to a party's request for admissions, claim of appeal, appellate briefs, and various other documents. Although lawful if within the SOL, a plaintiff's unnecessary/negligent delay in filing the complaint pleadings contradicts his interest in an expedited administration of justice with regard to his claims.

Can we submit a corrected complaint and still have it be accepted even though time has run out?

You did not specify your jurisdiction, and it is unclear what you mean by "the complaint was rejected", when that occurred, and why. That being said, in jurisdictions of the US it is possible to file a complaint after the statute of limitations has expired. In fact, the expiration of the SOL is frequently litigated in US courts.

If the SOL has expired, the defendant is most likely to invoke the doctrine of laches and/or the expiration of the SOL among, or in lieu of, other affirmative defenses. In some types of disputes, the court may sua sponte assess the SOL even if the defendant did not raise that defense. See Jackson v. Secretary for Dept. of Corrections, 292 F.3d 1347, 1349 (2002):

even though the statute of limitations is an affirmative defense, the district court may review sua sponte the timeliness of the section 2254 petition. [...] the district court possessed the discretion to raise sua sponte the timeliness issue.

By contrast, Wolverine Mut. Ins. Co. v. Oliver, 933 N.E.2d 568, 571 (2001) cites precedents from other jurisdictions concluding that "trial courts may not sua sponte inject the defense of the statute of limitations where the defendant has not pleaded or argued it", although the opinion also cited a case in the sense that "the trial court did not abuse its discretion in raising sua sponte the statute-of-limitations defense for a pro se defendant in order to bar the entry of default judgment in favor of the plaintiff".

If the complaint is rejected upon being entered, the plaintiff will need to establish the tolling of the SOL in order to avoid the dismissal of the complaint.

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.