Andreas Gledhill explains the pitfalls of using protective claims
Faced with the imminent expiry of a limitation period, litigators acting for a potential claimant often seek to safeguard their client’s position by issuing a protective claim. They may have only a partial understanding of the facts, and may not have worked out how to put the case: so they issue a generally indorsed claim form to stop limitation running while they try to find out more, but hold off serving the defendant in the meantime.
Until now, this practice has largely gone unchallenged. That is set to change in the light of Mr Justice Cooke’s recent decision in Nomura International plc v Granada Group Ltd [2007] EWHC 642 (Comm), [2007] All ER (D) 404 (Mar).
PROTECTIVE CLAIMS
The practice of issuing protective claims appears to have grown up in the 1960s. One of the earliest references in a reported case is Rowe v Tregaskes [1968] 3 All ER 447, [1968] 1 WLR 1475, where Lord Denning MR referred to the claimant’s issue of “....what was described as a protective writ, that is, a writ
