Ellen Kay v Martineau Johnson (A firm)

For negligence claims involving latent damage, actual knowledge requires awareness of the material damage and its attribution to the defendant’s alleged act or omission. In professional-advice cases, a disadvantageous transaction alone is insufficient where the advice remains apparently sound and reliable; something more must prompt inquiry into possible fault. Constructive knowledge under section 14A(10) of the Limitation Act 1980 is mainly objective and asks what a reasonable person in the claimant’s situation would have done. Impecuniosity will rarely affect the inquiry and requires detailed evidence. A claimant who delays obtaining appropriate advice through lack of prioritisation cannot rely on the statutory proviso. The claim was therefore time-barred.

Ms Kay sued her former solicitors in negligence, alleging inadequate advice in connection with a divorce financial settlement, including failures to investigate finances and advise about a nominal spousal maintenance order. The High Court determined a preliminary limitation issue in the respondents’ favour and dismissed the claim: [2024] EWHC 2451 (Ch). The appeal concerned whether actual or constructive knowledge under section 14A arose in 2008–09, whether the statutory proviso protected Ms Kay after she sought advice from her former solicitors, and whether impecuniosity delayed constructive knowledge in 2018–20. The central issue was when she first had the knowledge required to bring the negligence claim.

The appeal was dismissed unanimously. The judges differed on whether constructive knowledge arose in 2009, but all agreed that the claim was statute-barred.

1. Actual knowledge. Newey LJ held that Ms Kay did not have actual knowledge by the end of 2009. Her settlement had proved unsatisfactory, but the advice remained apparently sound and reliable. There was no additional feature sufficient to put her on inquiry that the solicitors’ advice might have been defective. Males LJ approached the issue by stressing that actual knowledge required Ms Kay actually to appreciate the possibility of flawed advice, although certainty was unnecessary. Lewis LJ agreed with that conclusion.
2. Constructive knowledge in 2009. Newey LJ considered that Ms Kay could rely on the proviso to section 14A(10) because it was reasonable for her to ask her former solicitors whether the settlement could be challenged and to rely on their unqualified answer. Males LJ, with whom Lewis LJ agreed on this issue, considered that after receiving that advice she ought reasonably to have sought separate advice on whether the reason for her predicament was negligence by the solicitors. Their difference did not affect the result.
3. Constructive knowledge in 2018–20. Section 14A(10) imposes a mainly objective inquiry. Impecuniosity might be relevant only in rare cases and must be supported by detailed evidence showing how it prevented the claimant obtaining advice. Ms Kay’s evidence did not meet that standard. The evidence indicated lack of prioritisation rather than lack of funds, and she had not explored pro bono or conditional-fee assistance.
4. Disposition. Ms Kay had constructive knowledge by the end of 2018 at the latest, more than three years before issuing proceedings on 6 March 2023. The claim was therefore statute-barred and the appeal was dismissed.

1. Court of Appeal (Civil Division) dismissed the appeal and held that the negligence claim was statute-barred: [2026] EWCA Civ 224 .
2. High Court of Justice, Business and Property Courts in Bristol Business List (ChD) determined the preliminary limitation issue in favour of Martineau Johnson and dismissed the claim: [2024] EWHC 2451 (Ch) .