What is the limitation period for professional negligence claims and how can Section 14A extend that time? In this article we look at a recent case.
The Court has recently considered the application of section 14A of the Limitation Act in the context of a professional negligence claim against a firm of solicitors.
The primary limitation period for professional negligence claims (whether the claim is being brought in contract or tort) is six years. However, it is not uncommon for professional negligence to be discovered some time after the breach or the accrual of the cause of action.
Section 14a of the Limitation Act can act to extend the primary limitation period for tortious claims. Section 14a allows a claim to be brought within three years from the date the claimant had the knowledge of the claim.
In the case of Witcomb v (1) J. Keith Park (2) Gregor, the Court considered when a claimant had “knowledge” of the claim for the purposes of Section 14a of the Limitation Act.
A recent professional negligence case
The background
In this case, the Claimant suffered serious injuries in a road traffic accident in 2002.His claim against a third party was settled at a settlement meeting in 2009 on a “full and final basis”. This meant that there would be no opportunity to recover further damages if it later transpired that his injury was more serious than had been anticipate.
Ultimately, the Claimant’s condition did significantly worsen and, as a result of the wording of the settlement agreement, was unable to claim further damages.
The legal case
The Claimant took action against his legal representatives at the time. The Claimant’s position was that his legal representatives should have advised him:
- To get an expert report from a surgeon to properly assess his condition and potential future implications; and
- About the option to seek provisional damages.
The Claimant sought to rely upon s14a of the Limitation Act because the primary limitation period had passed. The Claimant’s position was that the first time that he had “knowledge” of the professional negligence claim was January 2017 when he was advised that he was facing a possible amputation or subsequently when he sought legal advice.
In contrast, the Defendants argued that the Claimant had the relevant knowledge at the date of the settlement meeting itself.
Decision
The Court held that in circumstances where a professional advisor has omitted to give 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.
The Court therefore found in favour of the Claimant and specifically commented that the Claimant had no reason to suspect that he had received flawed advice before 2017.
Whilst the Claimant was aware that he was entering into a settlement on a full and final basis, it was not until much later that he discovered that his legal advisors had failed to present other possible solutions to him.
Implications
This is a welcome judgment for prospective professional negligence claimants as it shows that the Court is willing to take a strict approach as to what is deemed to be “knowledge” for the purpose of section 14a of the Limitation Act.
It does however demonstrate the complexity involved in ascertaining the relevant date of knowledge and that a thorough investigation should be carried out before commencing proceedings.
How we can help
We have a team of experienced professional negligence lawyers who can assist you if you think that you may have been given incorrect advice by a professional advisor. Our commercial disputes team regularly deals with high value professional negligence disputes.
You can get in touch with our Commercial Disputes team below.