This case study is an anonymised composite based on publicly reported PI claim patterns. It is not actual Apex client data and does not constitute legal or insurance advice. Names, locations and identifying details have been changed. Apex Insurance Brokers Limited is authorised and regulated by the Financial Conduct Authority, FRN 724952.
A regional six-partner firm in the north of England, fee income around £3.4m, with a long-standing personal injury department running on a mix of CFA-funded RTA and EL/PL claims. Volumes had been declining for several years as RTA reforms bit; the department was operating at a leaner headcount than it had three years previously.
A new client, a self-employed electrician, instructed the firm in respect of a workplace fall sustained on a construction site at which he had been working as a sub-contractor. The accident date was clear: an entry on the site’s accident book, photographs taken on the day, and an A&E discharge summary all dated it precisely. The fall produced a complex tibial plateau fracture, surgery and a long rehabilitation; the client was off work for nine months and returned to lighter duties only.
The fee-earner who took the file was a senior paralegal supervised by an associate solicitor. A letter of claim was sent within three months to the principal contractor. Liability was disputed on the basis that responsibility lay with a labour-only sub-contractor. The file then drifted. A change of fee-earner occurred when the original paralegal left the firm; the file was reassigned without a structured handover and the new fee-earner mis-diarised the limitation date as three months later than it actually was, on the basis of a misread of the A&E note.
Protective proceedings were not issued. Twelve days after the true limitation date, the file was reviewed by the supervising associate, who spotted the discrepancy between the limitation diary entry and the underlying medical records. Counsel’s advice was urgently sought. The advice was unambiguous: a discretionary disapplication of limitation under section 33 Limitation Act 1980 was theoretically available but, on the facts, would be a long shot — the claimant had been demonstrably aware of his injury and its likely cause throughout, the defendants would point to prejudice from delay, and there was nothing exceptional in the file to take it outside the run of Cain v Francis [2008] EWCA Civ 1451 considerations.
The client was advised of the position. The firm offered to make a “lost litigation” claim against itself. The claim against the principal contractor was effectively dead.
The claimant instructed specialist professional negligence solicitors. The pleaded loss followed the Kitchen v RAF Association [1958] 1 WLR 563 “loss of a chance” framework, with the value of the underlying claim discounted for the prospects of success had it been litigated in time. The underlying claim was assessed by counsel at approximately £285,000 (general damages, loss of earnings during recovery, past and future treatment costs, an element of future loss reflecting reduced earning capacity). Prospects of success against the principal contractor had the claim been litigated in time were assessed at 55–65% net of liability risks, with the labour-only sub-contractor argument being live but answerable. After applying a notional 60% chance of success, plus interest, the headline claim was approximately £190,000 plus claimant’s costs.
The principle in Hugh James Ford Simey v Edwards [2018] EWCA Civ 1299 (and the Supreme Court’s subsequent confirmation) on the assessment of “lost litigation” claims was applied: the court evaluates the chance, it does not retry the case.
Notification went in on the day counsel’s advice was received — a circumstance notification under the firm’s MTC-compliant wording, framing the discovered limitation miss as a circumstance “which may give rise to a claim”. The wording of the notification was important. Under section 5 Insurance Act 2015 the obligation is one of reasonable prompt notification once the insured is aware of facts that may give rise to a claim, and we encourage firms to err strongly on the side of early notification — the Court of Appeal in Euro Pools plc (in administration) v Royal & Sun Alliance Insurance plc [2019] EWCA Civ 808 is a useful reference point on what does and does not constitute a notifiable circumstance, but the safer course is to notify early and in clear terms.
The £3m limit and the firm’s £20,000 excess applied. There was no series-loss or aggregation question: a single missed limitation date on a single file. The insurer instructed defence solicitors who confirmed the loss-of-a-chance framework and ran a quantum-focused defence. The matter was mediated, settling at approximately £162,500 plus a contribution to costs.
The settlement was paid. The firm reported the matter to the SRA under the regulatory obligations; the SRA investigated and accepted that the firm had introduced a revised limitation diarisation policy with twin-checking and an independent monthly audit. No regulatory finding was made beyond a recorded outcome letter. At renewal, the firm faced a meaningful but not unmanageable rate increase of around 18% and a tightening of its excess. One incumbent insurer declined; two alternatives were secured.
Diary discipline is the single most cost-effective claims-prevention investment a litigation firm can make. First, every file should have its limitation date calculated and verified by a second pair of eyes at file-opening and at any change of fee-earner — handovers are where these claims happen. Second, when limitation has been missed, the form and timing of the notification matters. Counsel should be involved in framing what is notified, when, and to whom; over-disclosure to the claimant before the insurer has been notified is itself a coverage risk. Third, the renewal disclosure following a missed-limitation claim is sensitive. Underwriters will want to see procedural change evidenced by independent audit, not promised on the proposal form. Fourth, when supervising paralegals on CFA-funded volume work, do not allow the supervising solicitor’s caseload to drift above what genuine review can support — half of all “missed limitation” claims involve a supervisory link that was nominal rather than real.
In our experience, the most common failure point on a missed-limitation claim is not the underlying error but the months that follow it. We would have worked with the firm to frame the section 5 notification on counsel’s advice, ensured the SRA touchpoint and the insurer touchpoint were sequenced correctly, and prepared the renewal narrative — including the audit evidence of process change — six months ahead of the renewal date. On the broking side, we would have approached the specialist solicitors’ PI markets that take a more nuanced view of one-off litigation errors than the generalist markets that price simply on the headline claim.
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