Sciortino v Beaumont

A cause of action in negligence accrues when real actionable damage is sustained. Further loss caused by the same breach does not create a fresh cause of action or restart limitation. The position differs where a later, separate breach causes distinct loss that would not have occurred without it. There is no general rule requiring later negligent advice to relate back to earlier advice, although causation may fail where the claimant was already irretrievably committed. Claims against lawyers are ordinarily unsuitable for summary judgment because the retainer, context, instructions and advice may require detailed factual examination. An unsuccessful novel legal argument is not, by itself, professional negligence.

The appellant brought negligence proceedings against the respondent barrister concerning advice about an appeal against possession and sale orders made in bankruptcy proceedings. Advice in April and May 2011 led to the appeal being launched. A written merits advice dated 26 October 2011 led to an extension of legal aid and further costs. The appellant accepted that claims based on the earlier advice were statute-barred, but maintained a claim for losses caused by the later advice.

The Master and the High Court Judge treated the advice as part of one continuous cause of action and dismissed the claim as statute-barred. The respondent also argued that the negligence allegations should be summarily dismissed on their merits. The central questions were whether the later advice gave rise to a separate cause of action and whether the allegations were suitable for summary determination.

Appeal allowed. The Court of Appeal set aside the relevant limitation orders and declined to summarily dismiss the allegations concerning the advice of 26 October 2011.

1. Accrual and limitation. Under section 2 of the Limitation Act 1980, a negligence claim accrues when real actionable damage is sustained. Where one breach causes damage outside the limitation period and further damage later, the later damage does not create a new cause of action. The authorities including Bell v Peter Browne & Co [1990] 3 WLR 510, Knapp v Ecclesiastical Insurance Group Plc [1997] EWCA Civ 2616 and Khan v RM Falvey [2002] EWCA Civ 400 concerned that situation.
2. Separate breaches. Where separate negligent advices constitute separate breaches and the later advice causes distinct loss which would not otherwise have occurred, there are separate causes of action. The later claim does not relate back to the first advice. St Anselm Development Company Ltd v Slaughter & May [2013] EWHC 125 (Ch) supported that analysis. The claimant's position, causation and scope of liability remain material; a second advice will not cause further loss if the claimant was already irretrievably committed.
3. Application. The October advice was a full merits review undertaken with materially fuller information, after the original settlement strategy had failed and for the purpose of extending legal aid. It could have advised abandoning the appeal. On the pleaded assumptions, the advice caused further costs and a further hearing which would not have occurred otherwise. The claim for those later losses was therefore not statute-barred. No general continuing duty to review earlier advice was needed.
4. Summary judgment. Although expert evidence is ordinarily unnecessary in negligence claims against solicitors and barristers, summary disposal remains exceptional. The court must consider the retainer, instructions, context, advice, risk and the evidence of the professional involved. The allegations required factual investigation and possible cross-examination. The failure of the underlying legal argument did not itself establish negligence.
5. Other authorities and disposal. Re Davey [2014] NI Ch 2 concerned a different statutory issue, while R (George) v SoSHD [2014] UKSC 28 concerned a different statutory scheme. Neither assisted the respondent. The remaining negligence allegations required trial.

1. Court of Appeal (Civil Division): In Sciortino v Beaumont [2021] EWCA Civ 786, the appeal was allowed. The limitation ruling was set aside and the respondent's request for summary dismissal on the merits was refused.
2. High Court of Justice (Chancery Division): In Sciortino v Beaumont [2020] EWHC 189 (Ch), the Judge upheld the Master's conclusion that the claim concerning the later advice was statute-barred.
3. Master, Chancery Division: In Sciortino v Beaumont [2019] EWHC 1046 (Ch), the Master treated the advice as part of one cause of action and dismissed the relevant claim as time-barred.