Biggs & Anor v Sotnicks (A Firm) & Ors

Section 32 of the Limitation Act 1980 cannot revive a negligence claim that has already become statute-barred. In a deceit claim, permission to appeal may be appropriate where it is sufficiently arguable that the claimant lacked knowledge of the defendant’s dishonesty within the relevant period. The absence of a file does not necessarily prevent proceedings being commenced if other evidence provides a sufficient basis for pleading dishonesty. A conveyancing clerk’s apparent authority is not automatically excluded merely because the clerk acted for both sides of a transaction.

The claimants appealed from an order of His Honour Judge Anthony Thompson QC, sitting as a deputy High Court judge in the Queen’s Bench Division, dismissing their claims against a former firm of solicitors, its partners and an employee as statute-barred. The claims arose from a 1986 transaction in which the claimants transferred their home to their son and alleged negligence and deceit by the defendants. They contended that the limitation period was postponed because they discovered the relevant dishonesty only after obtaining the conveyancing file in 1997.

The application was a renewed application for permission to appeal. The central issues were whether section 32 of the Limitation Act 1980 could revive the negligence claim and whether the deceit claim was sufficiently arguable to justify permission.

1. Permission threshold. The court’s task was to decide whether the proposed appeal had a real prospect of success. Permission should be refused where an appeal was bound to fail.
2. Negligence claim. The primary limitation period began when the claimants signed the transfer in 1986. The later correspondence in 1992, even if misleading, could not use section 32(2) of the Limitation Act 1980 to resuscitate a claim which had already become time-barred. Permission was therefore refused on this issue.
3. Deceit claim. The claim was based on the alleged participation of the employee, Mr Froud, in the original negotiations, with the other defendants potentially liable vicariously. It was arguable that the claimants did not possess sufficient knowledge of Mr Froud’s dishonesty before April 1993. The conveyancing file might have been obtained earlier, but its absence did not necessarily prevent proceedings being started if other evidence was sufficient to plead dishonesty.
4. The court rejected the submission that the claimants necessarily had to obtain the file before suing. The transfer recorded the name of the solicitors’ firm, and the claimants knew that Mr Froud had invited them to instruct him. It was also not established that a conveyancing clerk acting for both sides was outside the scope of ostensible authority. The principle discussed in Armagas Ltd v Mundogas SA (The Ocean Frost) [1986] AC 717 was not unqualified, as illustrated by First Energy (UK) v Hungarian International Bank [1993] 2 Lloyd’s Rep 194.
5. Lady Justice Arden would grant permission on the deceit claim only. Lord Justice Sedley agreed. The application for permission to appeal was granted accordingly.

• High Court, Queen’s Bench Division: His Honour Judge Anthony Thompson QC dismissed the action with costs on the ground that it was statute-barred.
• Court of Appeal (Civil Division): The renewed application for permission to appeal was granted on the deceit claim only and refused in relation to negligence.