Trainer v Cramer Pelmont (a firm)

For the extended limitation period under Limitation Act 1980, time runs only when the claimant has cumulative knowledge of the material facts about the damage, its attributability to the relevant act or omission, and the defendant’s identity. Knowledge of negligence as a legal conclusion is unnecessary.

Knowledge that a substantially better outcome was possible and that something had gone wrong may suffice for material-facts knowledge. The claimant need not know every contractual or factual detail. Constructive knowledge may arguably derive from facts known or ascertainable before the cause of action accrued, and an investigation beginning with one potential defendant may lead to knowledge of another.

The claimant brought negligence and other claims arising from the renegotiation and completion of the sale of matrimonial property. Cramer Pelmont was added as a defendant by amendment on 31 January 2018. It applied under CPR 17.2 to disallow the amendment, arguing that the negligence claims were statute-barred under section 14A of the Limitation Act 1980.

Deputy Master Bard held that Cramer Pelmont had no reasonably arguable limitation defence. The firm appealed. The appeal concerned the meaning of cumulative knowledge, including material-facts knowledge, constructive knowledge from pre-damage facts, and whether an investigative trail concerning other parties could lead to knowledge of Cramer Pelmont’s alleged responsibility.

1. Appeal allowed. The appeal court’s task was to review whether the master was wrong to conclude that there was no reasonable argument that the claims were time-barred. It was not appropriate to determine the ultimate limitation issues or conduct a rehearing.
2. Under section 14A, the claimant must have knowledge of the material facts about the damage, knowledge that the damage was attributable in whole or in part to the relevant act or omission, and knowledge of the defendant’s identity. Knowledge that the act or omission amounted to negligence is irrelevant.
3. For material-facts knowledge, the shorthand that things “could and should have been different” must not be understood as requiring knowledge of fault. Once the claimant knows that a better outcome was possible and that something had gone wrong, the threshold may be met when it is reasonable to begin further investigation. Knowledge of every aspect of the damage, or of the contractual rights governing it, is unnecessary.
4. The court held that Cramer Pelmont had a reasonable argument that knowledge of the substantially more favourable apportionment received by the former husband would amount to material-facts knowledge. Whether the claimant actually read the relevant documents, or might reasonably have been expected to read them, required trial.
5. It was also reasonably arguable that constructive knowledge could derive from facts observable or ascertainable before the cause of action accrued. Section 14A(10) contains no express restriction to post-accrual facts. The issue was novel and was left for determination at trial.
6. Applying Gravgaard v Aldridge & Brownlee (a firm), it was reasonably arguable that an investigative trail beginning with allegations against another party could ultimately reveal Cramer Pelmont’s responsibility. The court would not pre-judge the factual questions concerning actual or constructive knowledge.
7. The issue concerning knowledge acquired during bankruptcy did not arise because Cramer Pelmont had reasonable arguments that cumulative knowledge may have been acquired before bankruptcy. The court also declined to determine the effect of the claimant’s allegedly misleading conduct at the interlocutory stage. Consequential orders were left for agreement.

• High Court (Queen's Bench Division): appeal from the order of Deputy Master Bard dated 17 September 2018 allowed.
• Deputy Master Bard: refused Cramer Pelmont’s application under CPR 17.2 to disallow the amendment adding it as a defendant, finding no reasonably arguable limitation defence.