Schumann & Anor v Wasbrough

For limitation purposes, a claimant need not know that professional advice was negligent. It is sufficient to know the material damage, the act or omission said to have caused it, and the defendant’s identity. Actual or constructive knowledge may suffice.

A solicitor or barrister advising on another person’s claim owes no contractual or tortious duty to a family member unless there was a retainer, an assumption of responsibility, or circumstances making it fair, just and reasonable to impose a duty. Professional negligence is assessed by the standard of the reasonably competent practitioner.

The claimants alleged that Veale Wasbrough, solicitors, and Karen Rea, barrister, negligently advised Ms Chinnock not to pursue a wrongful-birth claim against an NHS Trust. They claimed damages after the claim form expired.

The actions were managed and tried together as preliminary-issue proceedings. The court considered limitation, whether duties were owed to Mr Schumann, and whether either defendant had breached duties owed to Ms Chinnock or Mr Schumann.

1. Limitation. The claims were statute barred. By August 2001 the claimants knew that the NHS Trust claim would not be pursued and that the loss was attributable to the advice given at the conference. They also knew the defendants’ identities. Under section 14A of the Limitation Act 1980, knowledge that the advice was legally negligent was irrelevant. The later discovery that there might be a claim against former professional advisers did not provide the required knowledge.
2. Mr Schumann’s alleged duties. Neither defendant owed Mr Schumann a contractual or tortious duty. He had not retained either defendant and made no payment or use of legal-aid funding. The documents showed an interest as Bethany’s father, but did not establish that advice had been given to him or that either defendant had assumed responsibility to him. It would not be fair, just and reasonable to impose a duty in the circumstances. The court followed the approach of the Court of Appeal in Whitehead v Searle [2008] EWCA Civ 285.
3. Breach. Applying the standard of the reasonably competent professional, neither defendant was negligent. The experts’ attendance by telephone was justified by timing and funding constraints. Dr Weston’s attendance was unnecessary because he had completed his relevant input. The experts had been adequately briefed, and the questioning at the conference was appropriate and professional. The evidence did not establish that the allegedly undisclosed risk figure or the radiologist’s suspicion required a different conclusion.
4. The court refused permission to make substantive late amendments because they would prejudice the defendants; any genuine clarification could be achieved through submissions. The claims were dismissed.