Lee Witcomb v J Keith Park Solicitors

For the extended limitation period under section 14A of the Limitation Act 1980, knowledge that a professional adviser’s act or omission caused loss requires awareness of a real possibility that the advice was flawed. Where necessary advice was omitted, time does not run until there is some reason to consider that the advice should have been given.

Knowledge that a settlement was final, carried a risk of undervaluation and was followed by unexpectedly serious deterioration does not necessarily establish knowledge that legal advice caused the resulting loss. Knowledge that damage is sufficiently serious to justify proceedings remains distinct from knowledge of attribution. A claimant need only prove that the latter knowledge arose within three years before proceedings; a precise date is unnecessary.

The claimant settled a personal injury claim for £150,000 on a full and final basis in 2009. His solicitors and counsel had not advised him about provisional damages or obtained a recommended plastic surgeon’s report. His condition deteriorated, and in January 2017 amputation was raised for the first time. After obtaining fresh legal advice, he issued professional negligence proceedings in December 2019.

Bourne J determined a preliminary limitation issue in the claimant’s favour. The solicitors appealed, contending that he had acquired the knowledge required by section 14A of the Limitation Act 1980 either at settlement or, at the latest, during 2016. The barrister’s separate appeal was compromised before the hearing. The central questions were when the claimant knew the material facts about his loss and when he knew that the loss was attributable to flawed legal advice.

1. Appeal dismissed. The claimant lacked knowledge of the material facts about the relevant damage in December 2009. The damage claimed was the loss resulting from the absence of a claim or settlement for provisional damages. His awareness that the settlement was final and might prove an undervalue was different from knowledge that the settlement lacked a form of protection which could have been sought. He knew nothing about provisional damages and could not know that he had not been advised about them.

2. Under section 14A(8)(a) of the Limitation Act 1980, time does not run merely because a claimant knows the adviser’s conduct and the resulting loss. The claimant must know there is a real possibility that the loss was caused by the act or omission alleged to constitute negligence. Where the essence of the complaint is wrong advice, the claimant must have some reason to consider that the advice may have been wrong. Where the complaint concerns omitted advice, the claimant must have some reason to consider that the necessary advice was not given. This does not require knowledge that the adviser owed or breached a legal duty, which remains irrelevant under section 14A(9).

3. The advice given and the advice omitted were two sides of the same coin. The claimant was advised that a lump-sum final settlement was his only option. He had no reason to suspect before 2017 that this advice was flawed. His worsening condition during 2015 and 2016 was consistent with the very risk of deterioration about which his advisers had warned him. It did not alert him to the possibility that provisional damages could have been pursued.

4. Knowledge that damage is sufficiently serious to justify proceedings does not establish knowledge that the damage is attributable to an adviser. Those statutory requirements are separate questions of fact. Nor was the claimant reasonably required to obtain another legal opinion when he had received apparently competent advice from both solicitors and counsel and had no reason to doubt it.

5. The claimant had to establish only that his knowledge of attribution arose within three years before proceedings. The judge was not required to identify its precise date. His finding that it arose no earlier than January 2017 was sufficient because proceedings were issued in December 2019. Thirlwall LJ gave the judgment; Baker LJ and Nicola Davies LJ agreed.

• Court of Appeal (Civil Division): By [2023] EWCA Civ 326, unanimously dismissed the solicitors’ appeal against the determination of the preliminary limitation issue.
• High Court, Queen’s Bench Division: Bourne J determined the preliminary issue in the claimant’s favour on 20 July 2021, holding that material-facts knowledge arose in 2016 but knowledge of attribution arose no earlier than January 2017. No neutral citation is stated.