In Witcomb v (1) J. Keith Park (2) Gregory the High Court considered the application of section 14A of the Limitation Act 1980 to a professional negligence claim against solicitors and counsel for alleged under-settlement of a personal injury claim. The Court considered the limitation point as a preliminary issue. The judgment of Bourne J provides a useful guide to the difficulties in applying section 14A to cases concerning professional advice.
An Outline of the Facts
The Claimant suffered serious leg and foot injuries in a road traffic accident on 20th July 2002. He brought a claim against a third party who admitted liability. That claim was settled at a settlement meeting on 16th December 2009. The First Defendants were the Claimant’s solicitors in those proceedings. The Second Defendant was the barrister who represented the Claimant at the settlement meeting.
It was common ground that the Claimant had been advised that settlement of the case was on a ‘once and for all’ basis and that there would be no opportunity to recover further damages if it later transpired that his injury was more serious than had been anticipated.
In the years following the settlement, the Claimant’s symptoms worsened. He was advised that he might require a below the knee amputation on 19th January 2017. This was carried out on 24th July 2017. In summarising the factual background of the case, the Judge held “(1) that in mid-2016 the Claimant was experiencing serious problems which were worse then (sic), or were occurring earlier than, had been predicted, and (2) that the suggestion of amputation in January 2017, for the Claimant, came out of the blue.”
The Alleged Negligence
The Claimant’s claim, in broad terms, alleged that it was negligent for the Defendants not to obtain a medico-legal report from a plastic surgeon. Had such a report been obtained the Claimant stated that it would have highlighted the risk of amputation in the future. The second allegation of breach, which was consequent on the first, was a failure to advise the Claimant to seek provisional damages from the third party.
The Date of Knowledge
The Claimant contended that he did not have the relevant knowledge required by section 14A until, at the earliest, 19th January 2017, when he was advised that he was facing a possible amputation. He argued that there were later possible dates at which he acquired the relevant knowledge, for example in February 2017 when he sought advice from the First Defendant about reopening his case against the third party or later in 2017 when he took legal advice about a claim against the Defendants. However, as all these dates would be in time for the purposes of limitation that was not a matter that it was necessary for the Court to delve into.
The Defendants argued that the Claimant either had the relevant knowledge at the date of the settlement meeting itself, such that section 14A did not extend the limitation period at all, or that he acquired it by no later than mid-2016 when he had experienced a severe deterioration in his medical condition.
As there was no factual dispute between the parties as to the relevant chronology, the dispute was one of pure law; the question for the Court being what the Claimant had to know in order to start time running for the purposes of section 14A. Bourne J set out the relevant authorities and highlighted the difficulties in applying the requirements of the section to a case concerning professional advice. At paragraph 28 of the Judgment the Judge referred to Haward v Fawcettsand stated:
Lord Nicholls, it seems to me, put his finger on the difficult problem which I have to resolve when he said:
“In many cases the distinction between facts (relevant) and the legal consequence of facts (irrelevant) can readily be drawn. In principle the two categories are conceptually different and distinct. But lurking here is a problem. There may be difficulties in cases where a claimant knows of an omission by say, a solicitor, but does not know the damage he has suffered can be attributed to that omission because he does not realise the solicitor owed him a duty. The claimant may know the solicitor did not advise him on a particular point, but he may be totally unaware this was a matter on which the solicitor should have advised him. This problem prompted Janet O’Sullivan, in her article ‘Limitation, latent damage and solicitors’ negligence’, 20 Journal of Professional Negligence (2004) 218, 237, to ask the penetrating question: unless a claimant knows his solicitor owes him a duty to do a particular thing, how can he know his damage was attributable to an omission?”
Lord Nicholls went on to note in Haward that unless the fact that the advice was defective was plain to see, time would not start to run until the claimant was put on inquiry. The relevant date was when the claimant “first knew enough to justify investigating the possibility that [the] advice was defective”.
Bourne J reached the conclusion that:
“… where the essence of the allegation of negligence is the giving of wrong advice, time will not start to run under section 14A until a claimant has some reason to consider that the advice may have been wrong.
Similarly, where the essence of the allegation is an omission to give necessary advice, time will not start to run under section 14A until the claimant has some reason to consider that the omitted advice should have been given.”
Where an omission is concerned there is a distinction that must be drawn between the knowledge that the omitted advice should have been given and the knowledge that there was a legal duty to give that advice. This is not a straightforward distinction.
In illustrating this point the Judge referred to the case of Boycott v Perrins Guy Williamsfor the proposition that it is not necessary for the claimant to be advised that the defendant owed a duty to give particular advice; this would fall foul of section 14A(9). In that case the claim concerned the severing of a joint tenancy. The claimant there did not need to know that the defendant had been under a duty to advise that a joint tenancy was severable. He had already been advised that the tenancy had been severed contrary to his understanding of the agreement between the joint tenants. That advice was sufficient to put the claimant in Boycott on inquiry about the defendant’s earlier advice.
The Defendants’ contention was that the Claimant knew at the date of the settlement meeting that he was going to undergo further surgery with the concomitant risk of further symptoms and treatment. He also knew that he would be unable to seek further damages in respect of any such symptoms. It was contended that section 14A did not extend the limitation period at all. The relevant knowledge that the Claimant had to have was that he was unprotected against the risk of further symptoms. He had this knowledge at the settlement meeting.
In the alternative to this the Defendants argued that time had started to run in mid-2016. At this point, the Claimant had experienced symptoms that were significantly worse than those which had been anticipated and for which the Claimant had been compensated. Therefore, from this point onwards the Defendants argued that the Claimant had cause to question the advice that he had been given.
The Court rejected the Defendants’ contentions. Bourne J held that in analysing the question of date of knowledge it was important to identify that there were two elements of knowledge. Firstly, knowledge of the damage. Secondly, knowledge that the damage is attributable to an act or omission of the defendant. Whilst these could merge into one another they remain distinct.
In this case, knowledge of the damage was knowledge that the Claimant was entering a full and final settlement with no provision for deterioration in his future condition. The Claimant had this knowledge at the date of the settlement meeting. In respect of the second part of the test, the Claimant had no reason to suspect that he had received flawed advice before 2017. As the Judge set out:
“In my judgment, the error in the arguments put forward by both Defendants is to elide the two requirements of section 14A(6), by equating knowledge of the “damage” (a lack of cover against future risk) with knowledge that the damage was attributable to an allegedly negligent act or omission by them.
On 16 December 2009, although he knew about the risk of under-settlement, the Claimant had absolutely no reason to suspect that that risk was caused by anything done or not done by his advisers. On the contrary, those very advisers expressly advised him that the risk existed, and reminded him to decide for himself whether it was a risk he was willing to run. On the basis of the advice given (that a settlement would necessarily be full and final), he may have felt critical of the legal system for not providing any alternative solution. But that was not a reason to suspect that it was his advisers who were depriving him of that solution.”
The Claimant acquired the relevant knowledge when he sought further legal advice and was told that he could have claimed provisional damages. As a matter of fact, this was triggered by him being told by his doctors that he may require an amputation. There was no case advanced on constructive knowledge pursuant to section 14A(10) and the Judge commented that the Claimant could not have been said to have acted unreasonably in not seeking legal advice at an earlier juncture.
This case demonstrates the practical application of section 14A and highlights the complexity involved in ascertaining the relevant knowledge where the alleged negligence concerns defective professional advice. This complexity is even more apparent where the allegation is one of an omission to provide relevant advice.
It is not uncommon for clients to query professional advice some considerable time after it was given. When considering whether section 14A might assist a client who was given defective advice, it is important to adopt a forensic approach to the facts of the case. It will be necessary to ascertain what advice should have been given and when the client was put on inquiry that advice that was given was defective or that additional advice should have been given.
 Judgment, paragraph 17.
  UKHL 9
 Judgment, paragraph 31, quoting paragraph 23 of Haward.
 Judgment, paragraphs 36-37.
  EWHC 2969 (Ch)
 Judgment paragraphs 53-55.
 Judgment, paragraph 70.
 Judgment, paragraphs 73-4.
 Judgment, paragraphs 81-2.
 Judgment, paragraph 89.