Page & Anor v Hewetts Solicitors & Anor

For the purposes of the Limitation Act 1980, an action is brought when the claimant delivers to the court office a request to issue, the claim form and the required fee. The claimant does not bear the risk that the court then delays, loses or fails to process those documents. The Civil Procedure Rules 1998 and their Practice Direction may assist in identifying delivery, but cannot alter that statutory construction. On summary judgment, the issue is whether there is a real prospect of proving timely delivery, not whether delivery has already been proved on the balance of probabilities.

The claimants, acting as administrators of their parents’ estates, alleged that the defendants had acted in breach of contractual, tortious and fiduciary duties when advising on the sale of estate property. They also alleged that the defendants had made a secret profit connected with the sale.

A Master gave summary judgment for the defendants on limitation grounds. A deputy judge in the Chancery Division dismissed the claimants’ appeal. The claimants appealed to the Court of Appeal. They did not challenge the finding that they had sufficient knowledge of the alleged sale at an undervalue by November 2000. The central issue was whether their claim for an account based on the alleged secret profit had been brought in time where an earlier claim form was said to have been delivered to the court but subsequently lost.

Disposition

1. The appeal was allowed in part. The concurrent finding that the claimants knew sufficient facts by November 2000 to start time running on the claims arising from the alleged sale at an undervalue was not challenged. Those parts of the pleading, whether framed in common law or equitable terms, had to be struck out.
2. As to the alleged secret profit, the unchallenged finding was that time began on 6 February 2003. Under section 23 of the Limitation Act 1980, the time limit for an action for an account is the time limit applicable to the underlying claim. The remaining issue was therefore when the action was brought.
3. Following Barnes v St Helens Metropolitan Borough Council [2006] EWCA Civ 1372, [2007] 1 WLR 879, the court held that the statutory word “brought” refers to the claimant’s delivery to the court office of a request to issue, the claim form and the fee. It does not depend on the later act of issue by the court. The claimant’s risk ends on delivery; delay, loss or other failure within the court is the court’s risk.
4. The contrary construction adopted below wrongly treated the wording of Practice Direction 7 as decisive. The Practice Direction was guidance for evidencing delivery and could not alter the proper construction of the Act. On a summary judgment application, the Master also applied the wrong test by asking whether delivery had been proved on the balance of probabilities. The question was whether the claimants had a real prospect of proving delivery, including through evidence reasonably expected at trial. Their solicitor’s evidence could not properly be rejected summarily.
5. The order below was set aside insofar as it dismissed the secret-profit claim as statute-barred. The court did not decide whether section 21(1) of the Limitation Act 1980 applied, and held that setting aside the order prevented any issue estoppel on that question.

• Court of Appeal (Civil Division) — allowed the appeal in part: [2012] EWCA Civ 805.
• Chancery Division — Ms Susan Prevezer QC, sitting as a deputy High Court judge, dismissed the claimants’ appeal from the Master and upheld summary judgment on limitation grounds.
• Master — gave summary judgment for the defendants on the basis that the claims were statute-barred.