Negligence — Breach of trust — Solicitors — Conveyancing — Limitation — Section 14A of Limitation Act 1980 — Whether solicitor entitled to rely on admitted negligence not alleged by plaintiff as defence to section 14A — Whether admitted negligent act same or different cause of action as that relied on by the plaintiff
In 1990 the third defendant solicitors acted for
the purchaser and for the plaintiff mortgagee in the purchase and mortgage of a
house. The purchase price was £100,000; the mortgage advance was £70,000. The
borrower defaulted and the plaintiff sold the house as mortgagee at a loss. The
plaintiff claimed against the third defendants in negligence and for breach of
trust, contending that they had failed to inform the plaintiff that the house
had been recently bought by the borrower and another person in equal shares for
£44,000, and the borrower now intended to buy out his co-owner. To the third
defendants’ defence, that the proceedings were commenced more than six years
after the cause of action, the plaintiff’s reply relied on section 14A of the
Limitation Act 1980, as it did not have knowledge of the facts giving rise to
the claim until September 1995. The third defendants’ rejoinder asserted that
they had negligently failed to advise the plaintiff, prior to the completion of
the mortgage, that the house was the subject of a demolition order. As the
plaintiff had knowledge by around April 1991 of facts that gave rise to a cause
of action in tort, the plaintiff could not rely on section 14A. At the hearing
of a preliminary issue, the third defendants contended that earlier knowledge
of a potential claim not sued upon can debar the plaintiff from pursuing the
claim on which it does sue.
limitation succeeded in relation to the plaintiff’s claim for breach of trust
or fiduciary duty, but failed in relation to the plaintiff’s claim in tort. The
negligence relating to the demolition order gave rise to a different cause of
action from that alleged by the plaintiff concerning the circumstances of the
original purchase. The knowledge of facts relating to the demolition order was
to be disregarded for the purposes of section 14A. The concession by the
plaintiff that the claim for breach of trust was statute-barred was accepted.
The following cases are
referred to in this report.
Hamlin v Edwin
Evans [1996] 2 EGLR 106; [1996] 47 EG 141; (1996) 29 HLR 414; [1996] PNLR
398
Horbury v Craig
Hall & Rutley [1991] EGCS 81
Letang v Cooper
[1965] 1 QB 232; [1964] 3 WLR 573; [1964] 2 All ER 929; [1964] 2 Lloyd’s Rep
339, CA
Steamship Mutual Underwriting Association v Trollope & Colls (City) Ltd (1986) 33 BLR 77
Welsh Development Agency v Redpath Dorman Long Ltd [1994] 1 WLR 1409; [1994] 4 All ER
10; (1994) 38 Con LR 106
This was a hearing of a
preliminary issue in proceedings by the plaintiff, Birmingham Midshires
Building Society, against three defendants, JD Wretham, AN Pearce and Stapley
& Co.
Antony Sendall (instructed by Hammond Suddards)
appeared for the plaintiff; Glenn Campbell (instructed by Wansbroughs Willey
Hargrave) represented the third defendants; the first and second defendants did
not appear and were not represented.
Giving judgment, JUDGE JOHN HICKS QC said:
Introduction
In 1990 the third defendant solicitors acted for
the purchaser and for the plaintiff mortgagee in the purchase and mortgage of a
house in Plaistow. The purchaser/borrower defaulted and the plaintiff sold the
house as mortgagee in 1995 at a loss. The plaintiff sues the third defendants
in negligence and for breach of trust, its principal complaints (which I shall
describe a little more fully later) being that the third defendants failed to
inform it of material respects within their knowledge in which the borrower’s
involvement with and purchase of the property differed, to the substantial
detriment of the security, from the information given in the mortgage
application, and in that situation parted with the mortgage advance of £70,000
entrusted to them.
In their pleadings and in argument before me, the
third defendants have maintained that they were negligent in another respect
not complained of by the plaintiff. The reason for that apparently quixotic
stance is that it entitles them, they say, to succeed in an otherwise unsustainable
limitation defence, as indeed defendants have done on such grounds in two of
the cases cited to me. The question before me is whether they are right.
Pleadings
The statement of claim, in addition to the
background facts already stated, pleads that the third defendants owed tortious
and fiduciary duties to the plaintiff, including a duty to exercise the care,
skill and diligence to be expected of a reasonably competent conveyancing
solicitor. It alleges that, by 8 May 1990, they knew both: (i) that the
plaintiff made its offer of advance on the basis that the borrower was to
purchase the property for £100,000, that the advance was to be applied
exclusively in the purchase and that the borrower was to provide the balance of
the purchase price himself; and (ii) that in fact the property had recently
been bought by the borrower and another person in equal shares for £44,500; the
borrower now intended to buy out his co-owner for £42,000 with part of the
advance and the balance of the advance was to be applied for other purposes.
Breach of contract, negligence and breach of trust
by the third defendants are alleged, in respect of which the principal heads
are failure to inform the plaintiff of the facts summarised under (ii) above
and, despite that failure, permitting completion, stating in their report on
title that the terms of the offer of advance would be fulfilled, that the
purchase price was £100,000 and that they knew of no reason why the advance
should not be made, and misapplying the moneys advanced.
There are claims for an account and for damages
for breach of the third defendants’ tortious and fiduciary (but not
contractual) obligations.
The defence admits a duty in tort of due care and
skill and that the third defendants’ relationship with the plaintiff was
fiduciary, puts the allegations of breach and damage in issue and alleges that
the causes of action in respect of which the plaintiff claims relief are
time-barred under the Limitation Act 1980, having accrued more than six years
prior to the issue of the writ on 28 February 1997.
The amended reply disavows any claim in contract
and, in answer to the limitation defence, relies on section 14A of the 1980
Act, alleging that the plaintiff did not have the required knowledge of the
facts giving rise to its claim until 28 September 1995, less than three years
before the issue of the writ.
The third defendants served a rejoinder asserting
that, in breach of their own admitted duty of care to the plaintiff, they had
failed to advise it that their search of the register of local land charges
prior to completion of the mortgage had disclosed that the property was the
subject of a demolition order under section 265(i) of the Housing Act 1985, and
that the plaintiff knew of that in April 1991, more than three years before the
issue of the writ. Para 14 reads:
In the premises, the plaintiff had knowledge by
around April 1991 of the facts which gave rise to its cause of action in
tort.
(My emphasis.)
Issue
At some date, which does not appear from the
papers before me, it was agreed or directed that there should be a trial of the
issue of limitation raised by the third defendants, and, by an order dated 2
September 1998, directions were given for the service of evidence to be relied
upon at that trial, which took place before me on 23 October 1998.
Facts
Although there was no explicit direction or
agreement on the point, it was, as I understand it, common ground that I
should, for the purpose of determining the preliminary issue, assume without
deciding the truth of the plaintiff’s pleaded allegations of breach of duty.
There was before me an undisputed affidavit by the plaintiff’s solicitor, which
included a formal verification of those allegations, but I take it that the
absence of challenge in that respect was accepted to have been without
prejudice to the resolution of such matters, if still in dispute, at the trial
of the remaining issues.
The remaining evidence went to the allegations in
the amended reply and the rejoinder. In addition to the affidavit and its
exhibits, it included some correspondence. As I understand it, any objections
to admissibility in respect of any of this material were waived and I was to
draw such inferences from it as I saw fit. On that basis, I find the facts as
follows.
In the course of their duties as purchaser’s and
mortgagee’s solicitors, the third defendants, on 19 April 1990, submitted to
the local authority, Newham London Borough Council, a requisition for a search
in the register of local land charges. The official certificate of search was issued
by the local authority on 1 May 1990 and reached the third defendants in the
ordinary course of post before completion of the transactions on 8 May. It
showed the following entry as having been registered on 13 June 1988 in Part 3
of the register, which contains planning charges:
S 265(1) Housing Act 1985. Demolition of House.
The third defendants did not advise the plaintiff
of that entry or take any steps to have it removed or to investigate its
effectiveness, and the purchase and mortgage were completed with the entry
still on the register.
On 4 April 1991 the local authority wrote to the
plaintiff about the demolition order, but the letter was returned because the
relevant file could not be traced and the plaintiff seems to have asked for the
name and address of the borrower and the mortgage account number to enable that
to be done. No copy of that letter or the plaintiff’s inquiry was in evidence.
On 24 April the local authority wrote again with the borrower’s name and added:
As this is a matter of some urgency, I would
appreciate it if you could complete the notice under section 16 of the Local
Government (Miscellaneous Provisions) Act 1976 and return it to me as soon as
possible
Section 16 of the 1976 Act entitles a local
authority that considers that with a view to performing a statutory function
they ought to have information connected with any land to serve a notice to
secure such information on any person who has an interest in that land as, inter
alia, mortgagee.
The plaintiff discovered the letter of 24 April
1991 on searching its records in October 1994, but could find no trace of any
reply to it or of any further reference to the demolition order until the
matter came to light in circumstances to which I shall shortly come.
Nevertheless, I find that it plainly knew in April 1991, in the sense that all
the necessary information was in its possession (whether or not any member of
its staff directed his or her mind to the matter), that the demolition order
existed. It also knew, in the same sense, that the third defendants had not,
before completion, reported the existence of that order or given any advice on
the point and it knew, or might reasonably have been expected to have
ascertained, that the order had been registered and was discovered or
discoverable at the relevant date by the ordinary local land charges search
made by purchaser’s solicitors before contract.
On 15 February 1994 the plaintiff obtained
possession of the property and shortly thereafter offered it for sale. A
prospective purchaser was found but that purchaser’s solicitors’ search
disclosed the registration of the demolition order and, after some
correspondence, which was not before me, they wrote to the plaintiff on 26 June
1994 to say that they had spoken to the local authority, who had confirmed that
the order related to the property, that it had not been lifted and could be
removed only upon a satisfactory inspection by the local authority at the
request of the current owners. It appears, although no direct evidence was
before me, that such an inspection was requested and took place on 18 August
1994, when the property was found to be ‘fit under the current legislation’,
but for some unexplained reason it was not until 2 February 1995 that the local
authority wrote to confirm that that was the case and that they would therefore
‘no longer proceed in enforcing the [demolition] order’. The sale by the
plaintiff proceeded to completion on 28 April 1995.
Meanwhile the plaintiff’s solicitors for the
purpose of that sale had written to the third defendants on 16 December 1994
with a copy of the relevant page of the 1990 search certificate, saying that
‘enormous difficulty’ was being experienced and asking for any information that
could assist. The third defendants then seem to have carried out some urgent
researches, which revealed that an appeal had been lodged against the
demolition order in Bow County Court, presumably soon after it was made on 31
May 1988, and that substantial renovations were carried out to the property between
1988 and 1990, making it habitable. The appeal stood adjourned as at 25 October
1989, presumably pending completion of those works, the implication being that
it had never been restored. The third defendants reported those findings to the
plaintiff’s solicitors by letter dated 5 January 1995, adding:
we would expect no difficulty in your obtaining
confirmation from Newham Council that the Order was no longer effective…
Provided the property is not now again ‘unfit for
human habitation nor capable of being made fit within the provisions of s264 of
the Housing Act 1985’ you should not be encountering ‘enormous difficulties’ in
its disposal.
The plaintiff’s solicitors’ unchallenged affidavit
deposes, and I accept, that the piece of information that made the plaintiff
aware of its (pleaded) claim against the third defendants was a copy of the
transfer of the property dated 8 November 1989 to the borrower and another as
tenants in common at the price of £44,500. That copy was obtained by the
plaintiff from the Land Registry on or about 28 September 1995 and until then
the plaintiff had no knowledge that the mortgage transaction was not founded
upon a straightforward purchase of the whole property for £100,000 from an
independent third party.
Statute
Section 14A of the Limitation Act 1980 provides,
so far as material, as follows:
14A — (1) This
section applies to any action for damages for negligence, other than one to
which section 11 of this Act, applies, where the starting date for reckoning
the period of limitation under subsection (4)(b) below falls after the
date on which the cause of action accrued.
(2) Section 2 of this Act shall not apply to an
action to which this section applies.
(3) An action to which this section applies shall
not be brought after the expiration of the period applicable in accordance with
subsection (4) below.
(4) That period is either –
(a) six years from the date on which the
cause of action accrued; or
(b) three years from the starting date as
defined by subsection (5) below, if that period expires later than the period
mentioned in paragraph (a) above.
(5) For the purposes of this section, the
starting date for reckoning the period of limitation under subsection (4)(b)
above is the earliest date on which the plaintiff or any person in whom the
cause of action was vested before him first had both the knowledge required for
bringing an action for damages in respect of the relevant damage and a right to
bring such an action.
(6) In subsection (5) above ‘the knowledge
required for bringing an action for damages in respect of the relevant damage’
means knowledge both —
(a) of the material facts about the damage
in respect of which damages are claimed; and
(b) of the other facts relevant to the
current action mentioned in subsection (8) below.
(7) For the purposes of subsection (6)(a)
above the material facts about the damage are such facts about the damage as
would lead a reasonable person who had suffered such damage to consider it
sufficiently serious to justify his instituting proceedings for damages against
a defendant who did not dispute liability and was able to satisfy a judgment.
(8) The other facts referred to in subsection
(6)(b) above are –
(a) that the damage was attributable in
whole or in part to the act or omission which is alleged to constitute
negligence; and
(b) the identity of the defendant;…
(10) For the purposes of this section a person’s
knowledge includes knowledge which he might reasonably have been expected to
acquire
(a) from facts observable or ascertainable
by him;…
Ambit of the dispute
Despite the initial reference in the statement of
claim to breach of contract, it is clear that no claim in contract is raised on
the completed pleadings, no doubt because any such claim would unchallengeably
be statute-barred.
There is a pleaded claim for breach of trust and
the third defendants’ skeleton argument addresses the limitation issues arising
in that regard, but at the outset of the hearing before me, Mr Antony Sendall,
for the plaintiff, conceded that that claim is also statute-barred. I accepted
that concession in so far as it was one of law and therefore not binding on me,
and there was accordingly no argument on that issue.
The only issue remaining, therefore, is as to the
claim in tort. The area of dispute there, moreover, is confined within narrow
limits. It follows from my findings of fact, and was indeed the common basis of
the submissions on both sides, that:
(1) Section 14A of the 1980 Act applies.
(2) The relevant period is that of three years
under subsection (4)(b), not six years under subsection (4)(a).
(3) The plaintiff did not until within the period
of three years before the writ have the requisite knowledge in respect of the
breaches of duty for which it sues.
(4) The plaintiff did before that period have the
requisite knowledge in respect of an actionable breach of duty in relation to
the registered demolition order, subject to arguments about whether damage
flowing from that breach: (i) has been pleaded; (ii) is proved; and (iii)
appeared ‘sufficiently serious’ to justify proceedings.
The questions that I have to decide are therefore:
first, what is the criterion for deciding whether knowledge of such a breach as
is referred to in item (4), not sued upon in the current action, is relevant;
second, what is the result of applying that criterion to the facts of this
case; and third, if they arise, what is the outcome of arguments (i), (ii) and
(iii) in item (4).
Criterion
The third defendants assert that earlier knowledge
of a potential claim, not sued upon, can debar the plaintiff from pursuing the
claim on which it does sue, and of which it admittedly did not have the
requisite knowledge until well within the relevant period set for the
commencement of proceedings. That assertion does not strike me as having any
appeal on the merits, but if that is indeed the consequence, on its true
construction, of section 14A, I accept that effect must be given to it. The
question is whether that is the true construction. I confess that at first
sight any such construction seems to me, absent authority, to meet the
insuperable objection that it is flatly contradictory to the words ‘relevant to
the current action’ in subsection (6)(b) and ‘alleged to constitute
negligence’ in subsection (8)(a), which plainly direct attention to the
facts alleged (which must mean alleged by the plaintiff) in the proceedings.
That argument was not, however, advanced by Mr
Sendall, no doubt for the reason that it was implicitly rejected by the Court
of Appeal in Hamlin v Edwin Evans [1996] PNLR 398*. The Court of
Appeal there certainly rejected the appellant plaintiff’s submission that the
relevant knowledge is that of the ‘particular head of injury… of which the
plaintiff is for the time being complaining’ (pp406C-407C). It is true that
counsel for the plaintiff is not recorded in the judgment as having relied
specifically on the words from subsections (6)(b) and (8)(a)
quoted above, but it would have been a very bold step to submit that for that
reason a judge of first instance could disregard the decision as having been
reached per incuriam, and since the full ramifications of this point did
not strike me during the hearing, I did not invite argument on it then. As I
have concluded that, for other reasons, the plaintiff succeeds, I do not
consider that it would be a justified use of time and money to do so now. I am
content, therefore, to assume (probably correctly, but without formally
deciding the point) that I am bound by Hamlin v Edwin Evans to
hold that knowledge of facts outside those relied upon by the plaintiff can be
material.
*Editor’s note: Also reported at [1996] 2 EGLR
106
That, however, is only the negative aspect of the Hamlin
decision — the rejection of the plaintiff’s criterion. Mr Glenn Campbell, for
the third defendants, also relies on that authority in its positive aspect for
the formulation of the criterion that he propounds, namely that knowledge is
material if it is of facts that relate to the same cause of action as that on
which the current claim is founded. That also has its problematic facets, but
since I am for present purposes following Hamlin v Edwin Evans, I need
not and should not spend time on them. I therefore proceed on the basis that
that is the criterion.
Causes of action
In Welsh Development Agency v Redpath
Dorman Long Ltd I characterised the question of whether there is a new
cause of action as one of degree (p118, para 39), reminded myself that, on the
authority of Diplock LJ in Letang v Cooper [1965] 1 QB 232 at
p242, a cause of action is ‘simply a factual situation the existence of which
entitles one person to obtain from the court a remedy against another’ and
expressed the view that the point was largely one of first impression (p119,
para 45). An appeal was dismissed ([1994] 1 WLR 1409, 38 Con LR 106), and
although there was no specific comment on these particular passages in the
judgment of the Court of Appeal, I think I should assume that they were not
disapproved.
My first
impression is that the negligence alleged by the third defendants in their
rejoinder gives rise to a different cause of action from that alleged by the
plaintiff in the statement of claim.
A first impression is by its nature not
rationalised, but in this instance it is confirmed by further reflections of
which I can give some account. I think it appropriate to do so, and in
particular to explain why I do not regard my conclusion as being inconsistent
with those reached in the authorities on which Mr Campbell relied.
A solicitor acting for a purchaser or mortgagee
has a number of duties, which can be categorised in more than one way. One
categorisation is by the nature of the defect to be guarded against. It starts
with the traditional distinction between title (whether the grantor has shown
title to the estate or interest asserted) and conveyance (who must join to
grant the estate or interest to be acquired by the client and whether the proposed
instrument will be effective to grant it) and adds more recently developed
necessities, in particular searches and inquiries as to incumbrances or other
detrimental circumstances not ascertainable by investigation of title in the
narrow sense. When the same solicitor acts for purchaser and mortgagee there is
another, crucial, categorisation between duties owed to both jointly or equally
and those that are owed to the mortgagee alone because they concern the
fulfilment of the purchaser’s obligations to the mortgagee.
Under both of these categorisations the two
allegations in question are sharply distinguishable. The demolition order was a
detrimental matter ascertainable by a standard search of a register not forming
part of the title proper, whereas the purchaser’s dealings with the property
were, vis-à-vis the mortgagee, a matter of title. The sting of the demolition
order had to be drawn in the interests of both the purchaser and the mortgagee,
whereas the purchaser’s dealings with the property were a matter of concern
only to the mortgagee.
A further significant distinction between the two
allegations lies in what the third defendants ought to have done. What was
required in the case of the demolition order was urgent inquiry as to its
provenance and current effect. A mere warning as to its existence, without such
inquiry, would have been fatuous. As the inquiries made in 1994/95 showed, that
would have elicited information suggesting that there was no insuperable
problem. What was required in the case of the borrower’s activities, however,
was immediate disclosure to the mortgagee, which, as the plaintiff pleads and I
for present purposes assume, would have precipitated its withdrawal from the
transaction.
That brings me to the cases relied upon by the third
defendants, namely Hamlin v Edwin Evans [1996] PNLR 398, to which
I have already referred, and Horbury v Craig Hall & Rutley [1991]
EGCS 81. I preface my comments on them by the general reflection that, in view
of the nature of the question and of the way in which it is to be approached,
decisions in other cases are likely to be illustrative rather than
authoritative. Both cases concerned allegedly negligent surveyors’ reports. In
each it was held that there was a single cause of action, notwithstanding
separate allegations of omissions to refer to distinct defects, discovered at
widely different dates. What Mr Campbell urges on me is that here too there was
a single report on title, omitting any reference either to the demolition order
or to the borrower’s activities. (As it happens, that submission fails on the
chronology because the search certificate was issued after the report on title
was made, but I am content to address it on principle, as if those events were
reversed.) It is true that the contents of the report on title are the subject
of one of the ways in which the plaintiff pleads breach, but that is only one
of the ways in which the case is put, and for the reasons explained above, a
solicitor who left either of these matters to be dealt with simply by mention
in the report on title would already have committed much more material breaches
of duty. The situation of a surveyor is quite different. His primary duty may
well be simply to include all relevant matters in a written report, and
although he may in practice give advance oral warning of particularly important
discoveries, a finding that there is no breach unless and until material
defects are omitted from the formal report is perfectly understandable and in
no way incompatible with the impression I have formed in this case.
Mr Sendall referred me, by contrast, to Steamship
Mutual Underwriting Association Ltd v Trollope & Colls (City) Ltd
(1986) 33 BLR 77, in which defects in different parts of a building were held
to give rise to different causes of action in an action against contractors and
architects. That is, of course, consistent with the view I have formed here,
but the circumstances were even further removed than those of the survey report
cases and I therefore place no reliance upon it for my decision on the facts,
although I note that it was the authority for my reference in Welsh
Development Agency v Redpath Dorman Long to the question as being
one of degree.
The final consideration that I take into account
is that the answer to the question of whether there are separate causes of
action must, as Mr Campbell concedes, be the same whether it arises on a plea of
limitation or of res judicata. It follows that if the third defendants
are right, a plaintiff who had, on the facts of this case, sued promptly for
the failure to deal with the demolition order and obtained a judgment or
settlement before learning of the matters now complained of, would have been
estopped from pursuing them. That would be a surprising and disquieting state
of affairs.
Taking into account these further considerations,
I find my first impression confirmed. The matters relied upon in the rejoinder
are therefore a separate cause of action, and knowledge of facts relating to
them is to be disregarded for the purposes of section 14A.
Amendment of pleading
That suffices to dispose of the issue before me,
but in case I am held to have been wrong in my conclusion, I shall deal briefly
with the further questions identified previously.
Mr Sendall first submitted that the rejoinder
contains no allegation of loss or damage flowing from the neglect there alleged
and that there was therefore no plea of tort, since damage is a necessary
ingredient of the tort of negligence. Mr Campbell met that objection by an
application for leave to amend, which I granted. The amendment was to insert at
a suitable point in the rejoinder the following paragraph:
By reason of the matters aforesaid the plaintiff
sustained loss and damage on or around 8 May 1990 by proceeding to advance its
moneys against the security of the property while subject to the said
demolition order.
Was there loss or damage?
Mr Sendall’s next submission was that there was no
such loss or damage in fact. I do not consider that that is right. As always,
what must be compared is what happened in the event with what would have
happened had there been no breach. What happened was completion subject to the
demolition order and its later discovery, with consequential inquiries and
correspondence and delay in completion of the plaintiff’s sale. What would have
happened, as I find on the balance of probabilities, was that the demolition
order would, without expense to the plaintiff, have been found in 1990, as it
was in 1995, to be one that the local authority were no longer concerned to
enforce, and that completion would then have occurred. It might have been a
little delayed, but that would not have involved the plaintiff in any
significant loss, certainly not in comparison with that which I infer it must,
in the event, have suffered from the delay in selling the property later. Even
if the plaintiff should have mitigated some of the loss by expediting resolution
of the problem, that is still sufficient damage to found a cause of action,
without assuming that the plaintiff incurred additional legal fees in 1994 and
1995, as it may well have done, but as to which there was no evidence.
Was the damage ‘sufficiently serious’?
Mr Sendall finally submitted that the knowledge
relied upon by the third defendants was not knowledge of ‘material facts about
the damage’ for the purposes of section 14A(6)(a) because the damage was
not ‘sufficiently serious’ for the purposes of subsection (7).
I have set
out the relevant statutory provisions and the relevant facts above. In my view,
the damage was not sufficiently serious to justify the plaintiff’s instituting
proceedings for damages against the third defendants in 1995. In addition to my
own assessment of the position, it seems to me to be material that the
plaintiff, a substantial finance-provider with professional advice and no
non-commercial motive to hold its hand that I am aware of, chose not to sue,
although the conditions at the end of subsection (7) were plainly fulfilled,
since there was no realistic prospect that the third defendants could have
disputed liability and as a firm of solicitors they would be presumed to be
able to satisfy a judgment, either themselves or by those insuring or
indemnifying them.
Had I not found for the plaintiff on the question
of whether there was a separate cause of action, I should therefore have done
so on this ground.
For the reasons set
out in this judgment, I find that the defence of limitation succeeds in
relation to the plaintiff’s claims for breach of trust or fiduciary duty, but
fails in relation to the plaintiff’s claims in tort.
