In brief, the claimant had been involved in an accident in 2002, he commenced proceedings which were settled for £150,000 in 2009. At that time, the claimant was not advised by his solicitor about seeking provisional damages (which allow a claimant the option of returning to the court to seek further compensation if his situation deteriorates after conclusion of the claim). The claimant's condition subsequently worsened and in 2017 he was told he required a below-the-knee amputation.
The claimant returned to his solicitors to see whether the settlement could be reopened because amputation had not been factored in. It did not occur to him at that time that his solicitors might have been negligent. The claimant only took advice later, following a suggestion he do so by his doctor. Professional negligence proceedings were issued against his former solicitors in December 2019 in which it was alleged the solicitors had been negligent in failing to follow a recommendation to obtain expert advice and pursue a provisional damages claim.
The defendant raised a limitation defence which was tried as a preliminary issue. It was accepted that the claim was brought outside the primary limitation period, the issue concerned S14A knowledge. It was held, at first instance, that whilst the claimant had knowledge of the material facts from mid-2016, he did not know that this was 'attributable' to the defendant's negligence until January 2017 or thereafter – and hence well within 3 years of the issue of the claim. Accordingly he did not, until then, have the requisite knowledge to bring a claim under s.14A(8)(a). The Court of Appeal agreed, endorsing the court of first instance's finding 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”
This decision is interesting because, whilst the claimant seemed to have all the facts at his fingertips, the court found that the limitation period did not begin to run until he put two-and-two together. This is a rather claimant-friendly approach, particularly as compared with the 2011 case of Boycott v Perrins Guy Williams (which is often relied on by defendants in limitation cases). This might evidence a trend towards a more lax approach to limitation by the courts. However, in this case, the claimant, a young man who had suffered a terrible accident, would obviously have elicited the court's sympathies and one wonders to what extent this came into play.
It is clear that the date of "knowledge" under S14A will continue to be a complex and thorny issue. The point at which knowledge is said to have arisen is fact-sensitive and is largely to be dealt with on a case-by-case basis. For defendants this creates uncertainty since claims might come out of the woodwork years after the alleged negligence occurred – a limitation argument might be defeated by the claimant simply saying they hadn't thought to bring a claim.
