Su v Clarksons Platou Futures Ltd & Anor

For negligence claims, the special limitation regime in the Limitation Act 1980, s 14A, does not require certainty that the defendant was negligent or that liability will be established. Relevant knowledge arises when the claimant knows enough about the damage, its possible attribution to the alleged act or omission, and the defendant’s identity to make investigation reasonable. Attribution requires a real, not fanciful, possibility of causation; probability is unnecessary. The test is objective, and a later judgment establishing liability is not required. Here, the claimant had the necessary knowledge by July 2012, so the negligence claim issued in November 2015 was time barred.

The claimant alleged that the defendants had negligently or contractually caused him to become personally liable under a freight forward agreement. Teare J granted summary judgment for the defendants, holding that the claims were time barred: the causes of action accrued in July 2008 and, alternatively, the claimant had the knowledge required by s 14A of the Limitation Act 1980 by 18 July 2012. The Court of Appeal granted permission only on the date-of-knowledge issue. The central question was whether the relevant knowledge arose only when a later trial judgment established personal liability, or earlier when the claimant knew that liability was asserted and that there was a good arguable case against him.

1. Disposition. The appeal was dismissed. Teare J was not only entitled but right to conclude that there was no real prospect of the claimant establishing at trial that he acquired the relevant knowledge less than three years before issuing the claim.
2. Statutory framework. Section 14A of the Limitation Act 1980 applies only to negligence actions. It permits the later of six years from accrual or three years from the earliest date when the claimant had both the knowledge required for an action concerning the relevant damage and a right to sue. It cannot assist a claim for breach of contract.
3. Meaning of knowledge. Applying Haward v Fawcetts [2006] UKHL 9, reported at [2006] 1 WLR 682, knowledge does not require certainty. Vague and unsupported suspicion is insufficient, but reasonable belief ordinarily suffices if the claimant knows enough to investigate further. Knowledge that damage is attributable to an alleged act or omission requires a real possibility of causation, not a fanciful possibility or proof of probability. Halford v Brookes [1991] 1 WLR 428 and Nash v Eli Lilly & Co [1993] 1 WLR 782 were referred to in that guidance.
4. Application. By July 2012, the claimant knew that Lakatamia asserted he was personally liable, and knew that two High Court judges and the Court of Appeal considered there to be a good arguable case that he was liable for a substantial sum. He also knew that the defendants had negotiated and agreed the relevant contract. Those matters were sufficient to make investigation reasonable and to establish a real possibility that his loss was attributable to the defendants’ acts. Section 14A(7) required the seriousness of the damage to be assessed on the assumption that liability would not be disputed and judgment could be satisfied.
5. The later trial judgment, the addition of another party, payments by companies controlled by the claimant, comments by a defendant’s managing director, and the claimant’s undisclosed legal advice did not alter the objective assessment. The relevant knowledge existed at the latest on 18 July 2012, so the negligence claim issued on 4 November 2015 was time barred.

• Court of Appeal (Civil Division): In [2018] EWCA Civ 1115, Kitchin LJ, with Henderson LJ agreeing, dismissed the appeal on the s 14A date-of-knowledge issue.
• High Court, Queen’s Bench Division, Commercial Court: Teare J granted summary judgment for the defendants, holding the claims time barred, in [2017] EWHC 337 (Comm).