Ellen Kay v Martineau Johnson (A Firm)

For limitation purposes, a claimant has trigger knowledge when she knows enough about the damage and its possible attribution to the defendant’s act or omission to justify investigating a claim. She need not know the precise legal duty, the full particulars of negligence, or the name of a particular alternative remedy. Constructive knowledge under section 14A(10) is assessed objectively. Personal characteristics and financial circumstances which are peculiar to the claimant cannot postpone the limitation period. A claimant who acquires sufficient knowledge cannot delay investigation and later rely on that delay. Section 32(1)(b) requires intentional concealment of a fact relevant to the claimant’s right of action. Mere negligence, or failure to appreciate that advice may have been negligent, is insufficient.

The claimant brought a professional negligence claim against her former solicitors concerning advice given in ancillary relief proceedings and a clean-break settlement reached in 2008. The claim was issued on 6 March 2023. The defendant relied on the expiry of the primary six-year limitation period.

The claimant relied alternatively on section 14A and section 32(1)(b) of the Limitation Act 1980. She contended that she acquired the necessary knowledge only in 2020, after specialist family-law advice, and that the firm had deliberately concealed facts relevant to her cause of action. The preliminary issue was whether the claim was statute-barred.

1. Section 14A. The claimant had actual trigger knowledge by no later than the end of 2009. She knew that the settlement was disadvantageous, that the clean break prevented further recourse to her former husband, and enough to justify investigating whether that position was attributable to fault in the legal advice. Ignorance of a specific remedy, such as a nominal spousal maintenance order, did not prevent trigger knowledge.
2. The claimant’s later advice in 2020 did not create knowledge of a wholly new or latent claim. It confirmed the possible negligence inherent in the earlier settlement and advice. The reasoning in Haward v Fawcetts and Witcomb v Keith Park Solicitors was applied.
3. Alternatively, the claimant had constructive trigger knowledge by the end of 2018. Section 14A(10) imposes an objective test. Personal circumstances, including distress, relationship difficulties, delay caused by an assisting solicitor, and impecuniosity, could not justify postponing the date when appropriate expert advice should reasonably have been sought. The claimant had not taken all reasonable steps to obtain that advice.
4. The distinction in Henderson v Temple Pier Co Ltd was material. That case concerned a solicitor’s delay in discovering a fact which the claimant could ascertain without expert assistance. Here, the claimant’s informal investigations showed that specialist advice was required, but the delay in obtaining it was unjustified.
5. Section 32(1)(b). Following Potter v Canada Square Operations Ltd and Cave v Robinson Jarvis & Rolf, concealment required an intentional decision to hide or withhold a fact relevant to the right of action. There was no evidence that the defendant’s solicitor had the necessary state of mind. Good-faith advice discouraging an attempt to reopen the settlement did not amount to deliberate concealment.
6. The preliminary issue was decided for the defendant. The claim was barred by the Limitation Act 1980. Consequential matters and the time for appealing were reserved for further order.

The judgment itself records that District Judge Brown ordered on 8 February 2024 that the limitation issue be tried as a preliminary issue. The High Court determined that issue in favour of the defendant.