Defendant’s Appeal Against The Application Of Secondary Limitation Law Dismissed Professional Negligence Claim

Witcomb v J Keith Park Solicitors [2023] All ER (D) 72 (Mar)

Background

The Claimant (Lee Witcomb) in this case sought to rely upon Section 14A of the Limitation Act 1980 in their professional negligence claim against their former solicitors (J Keith Park Solicitors) – the Defendant in this case.

The negligence, in this case, dated back to 2009, when the Claimant was involved in a road traffic accident. The Defendants had represented the Claimant in that case, where a settlement was reached. The Defendants failed to advise on provisional damages and informed them that a lump sum payment in the full and final settlement was the only option available, outside of a trial, with no protection against future significant deterioration.

In 2017, the Claimant’s condition worsened much quicker than anticipated and he was informed a below-knee amputation was needed on his right leg. He contacted the Defendants but was advised the claim could not be reopened. In 2019, the Claimant issued proceedings against the Defendants for professional negligence.

He was outside the primary limitation period, which ran six years from the 2009 settlement and expired on 15 December 2015. However, the Judge found in favour of the Claimant and allowed the claim to be brought under a secondary limitation period in accordance with Section 14A of the Limitation Act 1980. The Defendant appealed on the basis that the Judge misapplied the principles of the facts he had found. In the Defendant’s view, it should have been held that the Claimant acquired the necessary knowledge needed to bring a claim against them when it became “obvious that the injuries were more serious than expected”. They believe that date would have been between the middle of 2016 to late 2016. Therefore, the Claimant was outside the three-year secondary limitation period.

The Court of Appeal disagreed. The Defendant’s appeal was dismissed.

Comment

A professional negligence claim may rely on the secondary limitation period if proceedings are not issued within the primary limitation period.

The primary limitation period runs for six years from the date of loss in tort claims and six years from the date of a breach in contract claims. The secondary limitation period runs three years from when the Claimants knew of or ought to have known about the negligence.

The Court of Appeal, in this case, held that the previous Judge was right not to name a precise date upon which the claimant had knowledge within the secondary limitation period. The Judge had found that the date of the Claimant’s knowledge was no earlier than three years before he issued proceedings. Therefore, the Claimant only had to prove that he had not acquired knowledge of the negligence earlier than 17 December 2017 – greater exactness was not required.