Ross & Anor v Attanta Ltd

On an application for summary judgment or strike out, a limitation issue under section 14A of the Limitation Act 1980 should be determined summarily only where the claimant’s case is fanciful or unanswerable. Knowledge requires the claimant to know enough about the damage and its attribution to begin investigating a claim; knowledge that the conduct was negligent is unnecessary. In financial-advice cases, the characterisation of the alleged damage and the claimant’s understanding of the transaction may require a trial. Damages for unsuitable mortgage advice are compensatory. They do not ordinarily include repayment of capital which the claimant received and would have owed under the proposed non-negligent transaction. The appropriate loss may instead be the additional cost of borrowing, subject to any properly pleaded consequential loss.

The claimants alleged that Attanta Limited negligently advised them when arranging an interest-only remortgage in 2007. They alleged failures to advise on a suitable repayment vehicle, to recommend a capital repayment mortgage, and to explain that the mortgage term might not be extended beyond 2020. The primary limitation period had expired, so the claimants relied on section 14A of the Limitation Act 1980. Attanta applied for summary judgment under CPR 24.2 and, alternatively, strike out under CPR 3.4. The central issues were whether the claim was time-barred and whether the pleaded loss disclosed a viable claim.

1. Summary judgment and limitation. The court adopted the approach in Jago v Mortgage4You Limited [2019] EWHC 533 (QB). The claimants needed only to show that their proposed date of knowledge and resistance to constructive knowledge were not fanciful. The court must avoid a mini-trial and should hesitate to decide finally without a fuller factual investigation.
2. Section 14A knowledge. The relevant knowledge concerns material facts about the damage and the other facts required by section 14A(8), including attribution. Knowledge that conduct amounted to negligence is irrelevant under section 14A(9). Applying the broad, common-sense approach in Spencer-Ward v Humberts [1995] 1 EGLR 123 and Haward v Fawcetts [2006] 1 WLR 682, the claimants arguably had enough information to investigate earlier. However, it was also arguable that they did not know that they had suffered sufficiently serious damage under section 14A(7), particularly if they reasonably relied on an assurance that the mortgage could be extended. The limitation issue therefore required determination at trial.
3. Merits. The alleged contradictions in the claimants’ evidence were matters for cross-examination and trial. The claims were arguable, so summary judgment was dismissed.
4. Quantum and strike out. The pleaded claim for £250,995, representing the mortgage capital, was misconceived. The claimants had received and used the borrowed capital, and would have had to repay it under a capital repayment mortgage. The corresponding loss would principally be the difference in borrowing costs, subject to any properly pleaded consequential loss. The references to £250,995 in the particulars of claim and prayer were struck out, with permission to amend quantum and for the defendant to amend its defence.