7.2The three-year clock

Mesothelioma claims, like other personal-injury claims, run on a three-year limitation clock. The headline rule is simple. The detail is where most of the practical questions live, especially when somebody has died, when there’s a previous benefits claim already on file, or when the family has come to the case years after the diagnosis. This chapter walks through the clock in the order it comes up.

The headline rule (England and Wales). Under section 11 of the Limitation Act 1980, you have three years to issue court proceedings in a personal-injury claim. The three years run from either the date the injury happened or the date of knowledge, whichever is later. For mesothelioma the date of knowledge is almost always the date of diagnosis — that’s when the patient first knew, in the legal sense, both that they had a significant illness and that it was attributable to asbestos.

‘Date of knowledge’ in plain words.Section 14 of the same Act sets out the test. The clock starts when the patient first knew, or could reasonably have been expected to know, four things: that the injury was significant; that the injury was attributable in whole or in part to the act or omission alleged to be negligent; the identity of the defendant; and any extra facts needed for that identification. In a mesothelioma case, all four are normally satisfied by the diagnosis conversation with the consultant. The patient isn’t expected to have read the case law; they only need to know that the cancer is from asbestos.

Section 33 discretion.Where the three years have already passed, the court has a discretion under section 33 to disapply limitation if it would be equitable to do so — balancing the prejudice to the claimant of refusing the claim against the prejudice to the defendant of allowing it after delay. The discretion is fact-heavy and isn’t a substitute for issuing in time, but it does mean a late claim is not automatically dead. Don’t self-diagnose missed limitation; ring a specialist solicitor and let them assess it.

When the patient dies. Two separate three-year clocks open up.

• The estate’s claimunder the Law Reform (Miscellaneous Provisions) Act 1934, for the patient’s own pain and suffering and any losses during life. The clock for the estate is three years from the date of death (or the personal representative’s date of knowledge), whichever is later.
• The family’s dependency claimunder the Fatal Accidents Act 1976, for the financial dependency and services lost when the patient died. The clock is three years from the date of death, or each dependant’s date of knowledge of the death and its cause if that is later.

Critically: if the patient never got around to issuing court proceedings before dying, the estate and dependants can stillbring claims after death, as long as the patient’s own original three-year clock had not already run out before the death. Don’t assume it’s too late if you’ve come to this after a bereavement.

Scotland.Scotland runs on the Prescription and Limitation (Scotland) Act 1973. The three-year period is broadly equivalent, with the clock running from when the patient (or now-deceased patient’s family) first knew the injury was sufficiently serious and attributable to the defendant’s act or omission. The court has a separate equitable discretion to extend time. The Scottish procedure differs from England and Wales — chapter 7.15 covers the route in detail — but the three-year headline is the same.

Northern Ireland. The Limitation (Northern Ireland) Order 1989 mirrors the English statute closely. Three years, date of knowledge, and a section 50 discretion to extend, equivalent to section 33 in England and Wales.

The DMPS clock. If the case routes to the 2014 Diffuse Mesothelioma Payment Scheme (chapter 6.10) rather than a civil claim, DMPS runs on its own three-year clock under the 2014 Regulations — calculated from the patient’s first diagnosis, with separate provision where diagnosis is confirmed at or after death. The scheme also has a discretion to extend for good reason. The civil and scheme clocks aren’t the same machinery; one doesn’t freeze the other.

The lump-sum clocks (1979 / 2008). The 1979 Pneumoconiosis Act lump sum (chapter 6.8) and the 2008 Diffuse Mesothelioma Scheme (chapter 6.9) run on a tighter twelve-month clock, not the civil three-year clock. Easy to miss. If either applies, prioritise it.

Practical advice.Don’t try to calculate this yourself for a real case. The civil three years, the post-death three years, the lump-sum twelve months and the DMPS three years can all be running at the same time on the same family, and the right move usually depends on which combination applies. A first conversation with a specialist asbestos solicitor (chapter 7.4) is free and will give you a clear answer in one sitting. Where the case has come to you after a bereavement, please ring before you assume.