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In Witcomb v (1) J. Keith Park (2)
Gregory the High Court considered the application of
section 14A of the Limitation Act 1980 to a
professional negligence claim against solicitors and counsel for
alleged under-settlement of a personal injury claim. The Court
considered the limitation point as a preliminary issue. The
judgment of Bourne J provides a useful guide to the difficulties in
applying section 14A to cases concerning professional advice.
An Outline of the Facts
The Claimant suffered serious leg and foot injuries in a road
traffic accident on 20th July 2002. He brought a claim
against a third party who admitted liability. That claim was
settled at a settlement meeting on 16th December 2009.
The First Defendants were the Claimant’s solicitors in those
proceedings. The Second Defendant was the barrister who represented
the Claimant at the settlement meeting.
It was common ground that the Claimant had been advised that
settlement of the case was on a ‘once and for all’ basis
and that there would be no opportunity to recover further damages
if it later transpired that his injury was more serious than had
been anticipated.
In the years following the settlement, the Claimant’s
symptoms worsened. He was advised that he might require a below the
knee amputation on 19th January 2017. This was carried
out on 24th July 2017. In summarising the factual
background of the case, the Judge held “(1) that in
mid-2016 the Claimant was experiencing serious problems which were
worse then, or were occurring earlier than, had been predicted, and
(2) that the suggestion of amputation in January 2017, for the
Claimant, came out of the blue.”1
The Alleged Negligence
The Claimant’s claim, in broad terms, alleged that it was
negligent for the Defendants to obtain a medico-legal report from a
plastic surgeon. Had such a report been obtained the Claimant
stated that it would have highlighted the risk of amputation in the
future. The second allegation of breach, which was consequent on
the first, was a failure to advise the Claimant to seek provisional
damages from the third party.
The Date of Knowledge
The Claimant contended that he did not have the relevant
knowledge required by section 14A until, at the earliest,
19th January 2017, when he was advised that he was
facing a possible amputation. He argued that there were later
possible dates at which he acquired the relevant knowledge, for
example in February 2017 when he sought advice from the First
Defendant about reopening his case against the third party or later
in 2017 when he took legal advice about a claim against the
Defendants. However, as all these dates would be in time for the
purposes of limitation that was not a matter that it was necessary
for the Court to delve into.
The Defendants argued that the Claimant either had the relevant
knowledge at the date of the settlement meeting itself, such that
section 14A did not extend the limitation period at all, or that he
acquired it by no later than mid-2016 when he had experienced a
severe deterioration in his medical condition.
As there was no factual dispute between the parties as to the
relevant chronology, the dispute was one of pure law; the question
for the Court being what the Claimant had to know in order to start
time running for the purposes of section 14A. Bourne J set out the
relevant authorities and highlighted the difficulties in applying
the requirements of the section to a case concerning professional
advice. At paragraph 28 of the Judgment the Judge referred to
Haward v Fawcetts2 and stated:
Lord Nicholls, it seems to me, put his finger on the difficult
problem which I have to resolve when he said:
“In many cases the distinction between facts (relevant) and
the legal consequence of facts (irrelevant) can readily be drawn.
In principle the two categories are conceptually different and
distinct. But lurking here is a problem. There may be difficulties
in cases where a claimant knows of an omission by say, a solicitor,
but does not know the damage he has suffered can be attributed to
that omission because he does not realise the solicitor owed him a
duty. The claimant may know the solicitor did not advise him on a
particular point, but he may be totally unaware this was a matter
on which the solicitor should have advised him. This problem
prompted Janet O’Sullivan, in her article ‘Limitation,
latent damage and solicitors’ negligence’, 20 Journal of
Professional Negligence (2004) 218, 237, to ask the penetrating
question: unless a claimant knows his solicitor owes him a duty to
do a particular thing, how can he know his damage was attributable
to an omission?”
Lord Nicholls went on to note in
Haward that unless the fact that the
advice was defective was plain to see, time would not start to run
until the claimant was put on inquiry. The relevant date was when
the claimant “first knew enough to justify investigating
the possibility that the advice was defective“.3
Bourne J reached the conclusion that:
. where the essence of the allegation of negligence is the
giving of wrong advice, time will not start to run under section
14A until a claimant has some reason to consider that the advice
may have been wrong.
Similarly, where the essence of the allegation is an omission to
give necessary advice, time will not start to run under section 14A
until the claimant has some reason to consider that the omitted
advice should have been given. 4
Where an omission is concerned there is a distinction that must
be drawn between the knowledge that the omitted advice should have
been given and the knowledge that there was a legal duty to give
that advice. This is not a straightforward distinction.
In illustrating this point the Judge referred to the case of
Boycott v Perrins Guy Williams5 for
the proposition that it is not necessary for the claimant to be
advised that the defendant owed a duty to give particular advice;
this would fall foul of section 14A(9). In that case the claim
concerned the severing of a joint tenancy. The claimant there did
not need to know that the defendant had been under a duty to advise
that a joint tenancy was severable. He had already been advised
that the tenancy had been severed contrary to his understanding of
the agreement between the joint tenants. That advice was sufficient
to put the claimant in Boycott on inquiry
about the defendant’s earlier advice.
The Defendants’ contention was that the Claimant knew at the
date of the settlement meeting that he was going to undergo further
surgery with the concomitant risk of further symptoms and
treatment. He also knew that he would be unable to seek further
damages in respect of any such symptoms. It was contended that
section 14A did not extend the limitation period at all. The
relevant knowledge that the Claimant had to have was that he was
unprotected against the risk of further symptoms.6 He had this
knowledge at the settlement meeting.
In the alternative to this the Defendants argued that time had
started to run in mid-2016. At this point, the Claimant had
experienced symptoms that were significantly worse than those which
had been anticipated and for which the Claimant had been
compensated. Therefore, from this point onwards the Defendants
argued that the Claimant had cause to question the advice that he
had been given.
The Court rejected the Defendants’ contentions. Bourne J
held that in analysing the question of date of knowledge it was
important to identify that there were two elements of knowledge.
Firstly, knowledge of the damage. Secondly, knowledge that the
damage is attributable to an act or omission of the defendant.
Whilst these could merge into one another they remain distinct.7
In this case, knowledge of the damage was knowledge that the
Claimant was entering a full and final settlement with no provision
for deterioration in his future condition. The Claimant had this
knowledge at the date of the settlement meeting.8 In respect of the
second part of the test, the Claimant had no reason to suspect that
he had received flawed advice before 2017. As the Judge set
out:
In my judgment, the error in the arguments put forward by both
Defendants is to elide the two requirements of section 14A(6), by
equating knowledge of the “damage” (a lack of cover
against future risk) with knowledge that the damage was
attributable to an allegedly negligent act or omission by them.
On 16 December 2009, although he knew about the risk of
under-settlement, the Claimant had absolutely no reason to suspect
that that risk was caused by anything done or not done by his
advisers. On the contrary, those very advisers expressly advised
him that the risk existed, and reminded him to decide for himself
whether it was a risk he was willing to run. On the basis of the
advice given (that a settlement would necessarily be full and
final), he may have felt critical of the legal system for not
providing any alternative solution. But that was not a reason to
suspect that it was his advisers who were depriving him of that
solution. 9
The Claimant acquired the relevant knowledge when he sought
further legal advice and was told that he could have claimed
provisional damages. As a matter of fact, this was triggered by him
being told by his doctors that he may require an amputation. There
was no case advanced on constructive knowledge pursuant to section
14A(10) and the Judge commented that the Claimant could not have
been said to have acted unreasonably in not seeking legal advice at
an earlier juncture.10
Conclusion
This case demonstrates the practical application of section 14A
and highlights the complexity involved in ascertaining the relevant
knowledge where the alleged negligence concerns defective
professional advice. This complexity is even more apparent where
the allegation is one of an omission to provide relevant
advice.
It is not uncommon for clients to query professional advice some
considerable time after it was given. When considering whether
section 14A might assist a client who was given defective advice,
it is important to adopt a forensic approach to the facts of the
case. It will be necessary to ascertain what advice should have
been given and when the client was put on inquiry that advice that
was given was defective or that additional advice should have been
given.
Footnotes
1
Judgment, paragraph 17.
2 2006
UKHL 9
3
Judgment, paragraph 31, quoting paragraph 23 of
Haward.
4
Judgment, paragraphs 36-37.
5 2011
EWHC 2969 (Ch)
6
Judgment paragraphs 53-55.
7
Judgment, paragraph 70.
8
Judgment, paragraphs 73-4.
9
Judgment, paragraphs 81-2.
10
Judgment, paragraph 89.
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