Dorne Mitchell v Leigh Day (a firm)

On a reverse summary judgment application concerning limitation in a professional negligence claim, the court held that the accrual of actionable damage in negligently conducted litigation is highly fact-sensitive. There are no exhaustive predictive criteria requiring the court to select an earlier date merely because a procedural failure may have made eventual failure likely. A claimant’s earlier breaches of duty do not necessarily establish earlier damage. Where a court-ordered deadline remained available and the pleaded case alleged that damage occurred when the position became irreparable on expiry of that deadline, factual investigation may be required. The claim therefore had a realistic prospect of overcoming the limitation defence. The overlapping contractual limitation issue was also unsuitable for summary determination.

The claimant sought damages for the loss of an opportunity to pursue a high-value clinical negligence claim after her former solicitors failed to serve proceedings within an extended period. The underlying claim concerned alleged wrongful birth and involved service in the UAE through the Foreign Process Section. The claimant alleged breaches occurring before the service deadline, but pleaded that actionable damage arose when the claim form’s validity expired on 10 December 2016.

The defendant applied under CPR 24.2 for reverse summary judgment, contending that the claim in tort was time-barred because damage had occurred earlier, when service had allegedly become impossible or the claim had materially diminished in value. The claimant relied on the continuing validity of the extension and the need for factual investigation. The court also considered the corresponding contractual limitation issue.

1. Application dismissed. The defendant failed to establish that the claimant had no real prospect of succeeding on the limitation issue or that there was no other compelling reason for a trial.
2. Under CPR 24.2, the applicant bears the initial evidential burden of showing that the claim has no realistic, rather than fanciful, prospect of success and that no compelling reason requires a trial. Summary judgment may determine a short legal or construction point, but is unsuitable where fuller factual investigation could affect the outcome.
3. The authorities, including Khan v Falvey, Hatton v Chafes, Polley v Warner Goodman & Street (a Firm), Cohen v Kingsley Napley, Berney v Saul and Holt v Holley & Steer Solicitors, establish that the timing of actionable damage in professional negligence claims arising from litigation is fact-sensitive. The court need not await a formal strike-out order, but neither is it required to bring limitation forward merely because earlier conduct created a risk that the underlying claim might fail.
4. The court declined to treat the claimant’s individual pre-deadline allegations of breach as allegations that damage occurred when each act or omission took place. The pleading could properly be understood as alleging a series of substandard acts culminating in damage when the position became irreparable at expiry of the extension. Whether earlier conduct had already caused actionable damage required factual enquiry.
5. The defendant’s argument that service had become impossible once the papers were delivered late to the Foreign Process Section was novel and depended on uncertain information about service times, the continued existence of the second extension, and the practical possibility of salvaging the claim. It could not be resolved summarily.
6. The contractual claim was governed by the six-year period running from breach under section 5 of the Limitation Act 1980. The alleged contractual obligation to serve by 10 December 2016, and the question whether any earlier breach was causative, overlapped with the tort issues and were best determined at trial. The argument based on anticipatory breach was unpersuasive because that principle ordinarily concerns treating the contract as discharged owing to unwillingness or inability to perform.