This article discusses practice in England and Wales. Legal tests and procedural rules may differ elsewhere. For UK, Republic of Ireland and selective international enquiries, see how to instruct.
Limitation is a legal question, not a clinical one, and nothing in this article should be read as legal advice. But limitation issues come up often enough in dental negligence enquiries that it is worth setting out, in general terms, where expert dental evidence tends to fit into the analysis, so that instructions can be timed sensibly. This article addresses the position in England and Wales; other jurisdictions differ, sometimes materially.
The basic position
For negligence claims involving personal injury, including many dental negligence claims, section 11 of the Limitation Act 1980 generally provides a three-year limitation period. For personal injury and clinical negligence claims, time generally runs from the date the cause of action accrued (broadly, when the damage occurred, which is not always the date of the treatment itself), or from the claimant's date of knowledge if later. Where the claimant was under 18 when the cause of action accrued, section 28 generally postpones the running of the personal injury limitation period until adulthood. The relevant point is accrual of the claim, which is not necessarily the date of the alleged negligent treatment. The interaction with date of knowledge and any other applicable provisions needs legal assessment.
Capacity to conduct proceedings
Separate rules apply where the claimant lacked capacity to conduct legal proceedings when the cause of action accrued. Sections 28 and 38 address this form of disability; a diagnosis or disability in everyday terms does not, by itself, establish litigation incapacity. Capacity, any recovery of capacity and the resulting deadline are matters for the legal team to assess. These rules should not be reduced to a general statement that every claim expires three years after treatment or after a claimant turns 18.
Date of knowledge
Date of knowledge is where most of the difficult limitation arguments arise. A claimant's date of knowledge is the date they first knew that the injury was significant, that it was attributable in whole or in part to the act or omission alleged to constitute negligence, and the identity of the defendant. The statutory test concerns knowledge of the relevant facts, including attribution of the injury to the act or omission alleged; knowledge that the care was legally negligent is not required. Section 14 also addresses knowledge that a person might reasonably have been expected to acquire. A second clinical opinion may clarify the facts, but it does not automatically determine the date of knowledge.
This difficulty is compounded in dentistry because much of the relevant pathology is silent. A root canal treatment may fail radiographically while the patient remains symptom-free for years; peri-implant bone loss can progress without pain or any sign the patient could detect; and a defective crown margin may only become apparent on a radiograph taken long after the treatment was provided. In such cases the point at which a claimant could reasonably have connected a poor outcome to the original treatment may fall considerably later than the point at which the treatment in fact failed.
This is where expert dental evidence sometimes becomes relevant to the limitation argument itself, not just to the merits of the underlying claim. Where the relevant knowledge is disputed, the surrounding clinical picture can help the legal team assess the evidence: what was visible on examination, what was or was not explained to the patient at the time, and what a patient in that position could reasonably have been expected to understand. This is distinct from the later question of whether the treatment actually amounted to a breach of duty, which is a separate issue. Clinical evidence may assist with both questions; limitation does not always have to be resolved before the merits are investigated.
Why early expert input can matter
Solicitors sometimes hold off instructing an expert until limitation is resolved, on the basis that there is little point commissioning a report on a claim that might be time-barred. That is often the right call, but it is worth being alert to cases where a preliminary expert view, even a screening review of the records rather than a full report, can usefully inform the limitation argument itself, particularly where date of knowledge is contested and the clinical picture bears on what the claimant could reasonably have known and when.
Where limitation is in genuine doubt, raising it early with whoever is being instructed, and being clear about what is needed at that stage, screening input on the merits, a view on date of knowledge issues, or a full report, helps avoid wasted work and keeps the case on a sensible timetable. The court retains a discretion under section 33 of the Limitation Act to allow a claim to proceed outside the primary limitation period, but this is decided on the specific facts and should not be relied upon as a default position.
This article is necessarily general. Specific limitation questions, including date of knowledge and any application under section 33, are legal matters for the instructing solicitor to advise on, informed where appropriate by expert dental evidence on the underlying clinical picture.