Sciortino v Beaumont

The Court of Appeal considered when a cause of action in negligence accrues where a barrister gave advice on two separate occasions about the same litigation risk. It held that a later written advice, given and acted on within the six year limitation period, can give rise to a separate cause of action distinct from earlier advice given outside the limitation period. The court applied the Limitation Act 1980 s.2 (accrual of tort claims) and considered the scope of any continuing duty to review earlier advice, rejecting a rule that a later confirmatory advice must always be treated as part of a single cause of action. The court also held that the pleaded negligence arising from the October 2011 advice was not suitable for summary determination and should proceed to trial.

Background and parties: The appellant, Mr Sciortino, was the bankrupt proprietor of a dwelling which formed part of the bankruptcy estate. After a trustee pursued possession and an order made in March 2011, the appellant instructed the respondent barrister for advice about appealing. The appellant sued the respondent in negligence; part of the claim (paragraph 68) alleged negligent advice about an appeal, based on conferences in April/May 2011 and a written advice of 26 October 2011.

Procedural history: The defendant successfully applied below to strike out or obtain summary judgment on paragraph 68 on limitation grounds (Master Teverson and HHJ Jarman QC: [2019] EWHC 1046 (Ch); [2020] EWHC 189 (Ch)). The appellant obtained permission to appeal to the Court of Appeal.

Nature of the claim / relief sought: The appellant sought to resist strike out / summary judgment and to pursue a negligence claim limited to losses said to have been caused by the respondent's written advice of 26 October 2011 (noting that the appellant accepted any claim based on April/May 2011 advice was time-barred).

Issues before the court:

• Issue 1: Whether the cause of action in negligence based on the separate written advice of 26 October 2011 accrued at that date (and so fell within the six year limitation period), or whether it formed part of a single cause of action that accrued when the earlier April/May 2011 advice was given and acted on (in which case it would be statute-barred).
• Issue 2: Whether, even if not statute-barred, the paragraph 68 allegations should be dismissed summarily because they were not arguable on the merits.

Court's reasoning and conclusion: On Issue 1 the court held that where there are two separate negligent acts or omissions (here advice given in different circumstances and with different material available), the later negligent advice can give rise to a distinct cause of action which accrues when that later damage is suffered. The court distinguished authorities concerned with a single earlier breach giving rise to damage both inside and outside the limitation period (e.g. Khan v Falvey, Bell, Knapp) and followed the analysis in St Anselm Development Co Ltd v Slaughter & May that separate instructions and distinct steps can generate separate causes of action. On Issue 2 the court concluded that the merits of the October 2011 advice were not appropriate for summary judgment because the context, the reasons for the advice and questions of causation required trial evidence and cross-examination. The Court of Appeal therefore allowed the appeal on limitation and refused the respondent's invitation to dispose of the pleaded negligence on the merits at this stage.

Appeal allowed. The court held that the written advice of 26 October 2011, given in different circumstances and on the basis of materially different information, could give rise to a separate cause of action which accrued at that later date and was therefore not statute-barred. The court also held that the negligence allegations arising from that advice were not suitable for summary disposal and should proceed to trial.

The claim was the subject of interlocutory strike-out / summary judgment rulings by Master Teverson ([2019] EWHC 1046 (Ch)) and by His Honour Judge Jarman QC in the Chancery Division ([2020] EWHC 189 (Ch)). Permission to bring the second appeal to the Court of Appeal was given (Arnold LJ 7 December 2020) and the Court of Appeal allowed the appeal on 25 May 2021 ([2021] EWCA Civ 786).