When clients feel let down by their lawyers, the natural instinct is to seek redress. But as Kay v Martineau Johnson (a firm) reminds us, the law of limitation can be an unforgiving gatekeeper. In March 2026, the Court of Appeal delivered a judgment that underscores just how strictly the courts apply the “constructive knowledge” test under section 14A of the Limitation Act 1980.
This case is a compelling study in how dissatisfaction with an outcome does not equate to knowledge of negligence and how failing to investigate potential wrongdoing promptly can extinguish a claim before it ever reaches trial.
Key legal findings
The Court of Appeal unanimously dismissed Ms Kay’s appeal. Although she lacked actual knowledge of any negligence in 2009, the Court held she had constructive knowledge more than three years before issuing proceedings in March 2023. That meant her claim was statute‑barred.
Two strands of reasoning emerged:
- No actual knowledge in 2009
All three judges agreed:
- Ms Kay’s unhappiness with her divorce settlement did not amount to knowledge that her solicitors had been negligent;
- Nothing in 2008–2009 suggested the advice she received was flawed; and
- The High Court had wrongly inferred “actual knowledge” without identifying the necessary “something more” required by Haward v Fawcetts.
- Constructive knowledge: the real battleground
The judges split on when constructive knowledge arose, but not on the ultimate outcome.
| Judge | When Constructive Knowledge Arose | Reasoning |
| Males LJ & Lewis LJ (majority) | By June 2009 | Once Ms Kay was told the settlement could not be reopened, a reasonable person would have sought independent advice about whether her solicitors were at fault. She did not. |
| Newey LJ (concurring) | By late 2018 | Even if 2009 was too early, Ms Kay clearly had enough information by 2018 to investigate negligence. Her impecuniosity did not excuse delay. |
Either way, the claim was out of time.
Material facts in brief
- Ms Kay instructed Martineau Johnson in 2007 for ancillary relief proceedings.
- A clean‑break settlement was reached in 2008.
- She suspected her ex‑husband had hidden assets and asked the firm to revisit the settlement.
- In 2008 and 2009, the firm advised there was no basis to reopen it.
- The firm ceased acting in June 2009.
- Years later (2017–2018), Ms Kay noticed her ex‑husband living a wealthy lifestyle.
- In March 2020, counsel advised the settlement could not be reopened but suggested a potential negligence claim.
- Proceedings were issued in March 2023.
- The High Court held the claim was time‑barred; Ms Kay appealed.
The central question:
When did Ms Kay know enough to make it reasonable to investigate whether her solicitors had been negligent?
Submissions of the Parties
Ms Kay argued:
- She had no actual knowledge in 2008–2009;
- She could not suspect negligence about a nominal spousal maintenance order she had never heard of;
- Returning to Martineau Johnson for advice satisfied the “reasonable steps” requirement; and
- Her impecuniosity explained her delay in seeking further advice.
Martineau Johnson argued:
- Ms Kay had actual knowledge by 2009 (a point the Court rejected);
- Alternatively, she should have sought independent advice once told the settlement was final;
- Impecuniosity is irrelevant to the objective test under s.14A(10); and
- The delay was due to lack of prioritisation, not lack of funds.
Court’s rationale
1. Actual knowledge
The Court held Ms Kay did not have actual knowledge in 2009.
Being unhappy with an outcome is not the same as suspecting negligence.
2. Constructive knowledge in 2009
The majority held:
- Ms Kay acted reasonably by returning to her original solicitors;
- But once they gave unequivocal advice that the settlement could not be reopened, she should have sought independent advice;
- The proviso to s.14A(10) did not protect her indefinitely; and
- By June 2009, she knew enough to investigate whether her predicament was due to negligence.
3. Constructive knowledge by 2018 (Newey LJ)
Even if 2009 was too early:
- By 2018, Ms Kay clearly had reason to investigate;
- Impecuniosity is generally irrelevant to the objective test; and
- Her evidence did not show genuine financial inability to seek advice.
The decision
The Court of Appeal dismissed the appeal.
Ms Kay’s negligence claim was statute‑barred because she had constructive knowledge more than three years before issuing proceedings. Whether that knowledge arose in 2009 or 2018, the result was the same.
Why this case matters
This judgment reinforces several important principles:
- Dissatisfaction ≠ knowledge of negligence;
- Constructive knowledge is an objective test;
- Claimants must take proactive steps to investigate potential wrongdoing;
- Returning to the same solicitor is not enough if concerns persist; and
- Financial hardship rarely excuses delay.
For practitioners, Kay v Martineau Johnson is a reminder to advise clients early and clearly about limitation risks. For clients, it is a stark warning: if you suspect something has gone wrong, do not wait.
How can we help?
Amrik Basra is an Associate in our Private Litigation team.
At Nelsons, our team specialises in these types of disputes and includes members of The Association of Contentious Trust and Probate Specialists (ACTAPS). The team is also recommended by the independently researched publication, The Legal 500, as one of the top teams of specialists in the country.
If you have concerns about 1975 act time limits, don’t hesitate to get in touch with Amrik or a member of our expert Dispute Resolution team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
Contact usIf this article relates to a specific case/cases, please note that the facts of this case/cases are correct at the time of writing.