Time limits in professional negligence claims are rarely straightforward. A recent Court of Appeal decision has added important clarity, and a firm warning, for anyone who delays bringing a claim against a solicitor and hopes to rely on financial hardship as justification.
The background: a divorce advice dispute
Ellen Kay sued her former law firm, Martineau Johnson (now Shakespeare Martineau), for allegedly negligent advice given during her 2008 divorce. The firm had advised her to agree a clean break settlement. A year later, when she asked whether the settlement could be reopened over a lack of full financial disclosure, she was told it could not.
Ms Kay did not issue her claim until March 2023, some 14 years later. She argued that she had only become aware of a potential negligence claim in May 2020, following specialist counsel’s advice, placing her within the three-year extended limitation window provided by section 14A of the Limitation Act 1980.
She also argued that financial hardship (known legally as impecuniosity) had prevented her from seeking that advice sooner.
The complication: a solicitor boyfriend
The facts of the case were anything but straightforward. Ms Kay had been in a relationship with Richard Morgan, a solicitor and partner at national firm Harrison Clark Rickerbys, since early 2018. Mr Morgan provided her with what the Court of Appeal described as “significant financial assistance” throughout the relevant period, including loaning her money to obtain the very counsel’s advice on which she relied to bring her claim.
He was also, notably, the partner with conduct of her negligence case when it was formally issued.
What the court decided
Lord Justice Newey, delivering the leading judgment, found that Ms Kay had not established sufficient knowledge of a potential claim by the end of 2009, overturning that particular finding from the lower court. However, he rejected her impecuniosity argument in clear terms.
While there was no reason to doubt that Ms Kay had been short of money in the 2018–2020 period, she had failed to demonstrate the full picture of her finances, her financial commitments or her earning capacity. Significantly, she had also conducted unrelated proceedings in the Lands Tribunal during that same period, without explaining how she could fund those but not seek advice on her divorce settlement.
The court also noted that there was no evidence she had explored alternative funding options, whether a solicitor willing to act pro bono, or a conditional fee arrangement. The delay, Newey LJ concluded, was the result of a lack of prioritisation rather than a genuine inability to act.
Newey LJ went further, questioning whether impecuniosity could ever be relevant when assessing the time limit under section 14A at all. In any event, Ms Kay had not come close to meeting even that test.
Lords Justice Males and Lewis agreed that Ms Kay had constructive knowledge of a potential claim by as early as June 2009, meaning the claim was time-barred regardless.
What this means if you have a potential claim against a solicitor
This case carries practical lessons for anyone considering a professional negligence claim against a law firm:
- Time limits are strictly enforced. The standard limitation period for a negligence claim is six years from the date the loss occurred. Section 14A can extend this to three years from the date you gained sufficient knowledge, but the courts will scrutinise precisely when that knowledge arose.
- Financial difficulty will not automatically extend your time to act. If you have had access to financial assistance, whether from a partner, family member, or any other source, the court will take that into account. Impecuniosity is a high bar to clear, and you will need to demonstrate your full financial position, not simply assert that money was tight.
- Explore your options early. Conditional fee arrangements and pro bono avenues exist for a reason. Failing to investigate them will count against any argument that you were financially unable to pursue a claim.
- Delay carries serious risk. The longer a potential claim sits without action, the harder it becomes to bring, and the more likely it is to be time-barred entirely.
Concerned about a solicitor’s advice? Act now.
Daniel Brumpton is a Partner and heads up our expert Dispute Resolution team. He specialises in professional negligence claims, advising on mishandled litigation, business and personal tax advice, pension disputes.
If you believe you have received negligent advice from a solicitor or law firm, the most important step you can take is to seek specialist legal advice as early as possible. Every case turns on its own facts, but delay is rarely your friend.
Our professional negligence solicitors have significant experience in claims against law firms and can advise you on whether you have a viable claim and, critically, how much time you have to bring it. We also advise on funding options, so cost concerns need not be a barrier to taking that first step.
To speak with Daniel or another member of our team, call us on 0800 024 1976 or complete our online enquiry form. Our offices are based in Nottingham, Derby and Leicester, and we advise clients across the East Midlands and beyond.
If this article relates to a specific case/cases, please note that the facts of this case/cases are correct at the time of writing.