Sciortino v Beaumont

For limitation purposes, a negligent recommendation to pursue a hopeless appeal ordinarily gives rise to one cause of action when the appeal is commenced and loss is incurred through costs. Later advice which continues or confirms that recommendation does not create a fresh cause of action merely because it is separately requested, separately paid for, or causes further loss. The court must identify the substance of the pleaded negligence and the point at which actionable loss first occurred. A lawyer’s advice is assessed by asking whether no reasonably well-informed and competent practitioner would have given it, having regard to the advice’s context.

The claimant alleged that the defendant barrister negligently advised him in bankruptcy proceedings to pursue an appeal against an order for possession and sale of his home. The advice was given in April and May 2011 and repeated in written advice dated 26 October 2011.

The claim was issued on 25 October 2017. Master Teverson struck out the allegation concerning the October advice as statute-barred, holding that it formed part of the same continuing advice and cause of action. The claimant appealed. The defendant supported the decision on limitation and advanced an alternative case that the allegation had no real prospect of success.

1. Appeal dismissed. The allegation that the defendant negligently advised the claimant to pursue a hopeless appeal was statute-barred and was properly dismissed under CPR rule 3.4(2)(a) and/or CPR rule 24.2.
2. The relevant negligence was the advice to bring the appeal. Had competent advice been given, the appeal would not have been commenced and the related costs would not have been incurred. The cause of action accrued when the appeal was filed and costs were incurred, which occurred before the six-year limitation period preceding issue of the claim.
3. The advice formed a continuous pattern from April 2011 through 26 October 2011. The later written advice did not create a new cause of action merely because it was an independent piece of work, was requested for legal-aid purposes, considered further material, or led to further costs. The question was when the cause of action accrued, not when later loss occurred.
4. St Anselm Development Company Limited v Slaughter and May (A Firm) [2013] EWHC 125 (Ch) was distinguishable because the solicitors had been separately instructed in respect of two different leases. The present case concerned one appeal and one continuing course of advice. The reasoning in West Wallasey Car Hire Ltd v Berkson & Berkson (A Firm) [2009] EWHC B39 Mercantile was more closely analogous.
5. For completeness, the court accepted that the applicable negligence test was whether the alleged error was one that no reasonably well-informed and competent member of the profession would have made, as stated in Saif Ali v Sydney Mitchell & Co [1980] AC 198. The issue would also require consideration of the advice in its factual context, but it was unnecessary to determine the merits because the claim was statute-barred.
6. The court held that the LSC Funding Code was not evidence for the purposes of Ladd v Marshall [1954] 1 WLR 1489. The defendant could therefore make submissions on it, although the limitation conclusion would have been the same without it.

The parties were directed to file an agreed draft order, or written submissions on consequential matters, within 14 days.

• High Court (Chancery Division): Sciortino v Beaumont [2020] EWHC 189 (Ch) dismissed the appeal.
• Master Teverson: on 29 April 2019, struck out the allegation concerning the 26 October 2011 advice as statute-barred.