Sciortino v Beaumont

Professional negligence – Cause of action – Limitation – Respondent giving professional advice in conference and later in writing – Appellant bringing proceedings alleging negligence – Respondent applying to strike out claim or summary judgment – Court holding claim statute-barred as claim issued out of time – Appellant appealing – Whether subsequent written advice giving rise to new cause of action – Appeal allowed The appellant was the freehold owner of a property known as 221, Woodham Lane, New Haw in Surrey. He was made bankrupt in June 2007. When the trustees in bankruptcy were appointed, the property was part of the bankrupt’s estate and vested in the trustees. The county court made orders for possession and sale of the property. The appellant then consulted a law centre which instructed the respondent barrister to advise on the prospects of appealing the orders. Advise was given in conference in April/May 2011, and again in writing in October 2011. The appellant subsequently complained that he should have been advised that litigation was hopeless. He said that the advice given had been negligently optimistic and that the legal costs the appellant subsequently incurred had diminished the amount he received from the proceeds of sale of the property. As the claim form was issued more than six years after the April/May advice, any claim that might rise from that advice was statute-barred. However, the form was issued within six years of the written advice given in October and the issue arose whether that advice gave rise to a separate cause of action. The respondent applied to strike out the claim, or alternatively sought summary judgment on the allegations complained of. The master held that it was not possible to treat the written advice given in October 2011 as a new and supervening act or omission giving rise to a new cause of action. The advice was part of the same allegedly wrongful acts: [2019] EWHC 1046 (Ch). That decision was upheld on appeal: [2020] EWHC 189 (Ch).  Permission was given to bring a second appeal. Held: The appeal was allowed. (1) Where a negligent act or omission caused actionable damage outside the limitation period and further attributable damage inside the limitation period, there was one accrued cause of action and it was statute barred. Where, in addition to a negligent act or omission which caused actionable damage outside the limitation period, there was a second negligent act or omission inside the limitation period which caused actionable damage that would not have occurred but for the second negligent act or omission, there were two accrued causes of action. The first was statute barred but the second was not: Khan v Falvey [2002] EWCA Civ 400 applied. In the present case, the question was whether the existence of the earlier advice in April/May rendered a claim based solely on the October advice statute-barred. The general principle was that a claim based on negligent advice, given to and relied on by a claimant during the relevant limitation period, gave rise to a valid claim. In a case where there were two or more allegedly negligent advices, and therefore two separate breaches of duty, there was no general principle of logic or common sense which required any sort of “relation back”, such as to say that the limitation period was triggered by the first occasion on which the negligent advice was given, regardless of any subsequent breaches of duty. (2) Any alleged negligence in October 2011 was different in nature and extent to any prior negligence in April/May. The respondent was being asked to give different and more comprehensive advice, in very different circumstances. Although there was an overlap, there were also significant differences in the nature and scope of the advices provided and the material available for consideration on each occasion. As a matter of fact, the advice of October was a separate and full advice on the merits that took into account a raft of material that had not previously been considered by the respondent. There was no rule of law that required the court to ignore for limitation purposes a second negligent advice (where that breach of duty gave rise to specific loss), and to find that, because the ultimate issue on which both advices were sought was the same or similar, there was only one cause of action and it accrued at the date of the first negligent advice. Accordingly, a claim limited to the losses caused by the alleged negligent advice in October was not statute-barred. (3) This was a case about misfeasance in which there were two separate alleged errors: the negligent advice in April/May 2011, which led to the launching of the appeal, and the negligent advice in October 2011, which led to legal aid being extended to fight the appeal through to a conclusion. There was no reason in law to conclude that the claim in respect of the second advice was statute-barred: it simply gave rise to a separate, albeit smaller, claim. There was no authority to support the proposition that, if there were two advices, the cause of action accrued at the time of the first and the second was irrelevant. The circumstances in October 2011 which prompted the second advice were new and different, and that advice caused definable, separate damage. It was therefore a separate cause of action which comprised a supervening event: Bell v Peter Browne & Co [1990] 3 WLR 510, Knapp v Ecclesiastical Insurance Group Plc [1997] EWCA Civ 2616, Khan and in St Anselm Development Company Ltd v Slaughter and May [2013] EWHC 125 (Ch) considered. (4) Generally, it was almost impossible to obtain summary judgment in professional negligence cases because the court required expert evidence as to the appropriate standard required of the profession in question. Claims arising out of solicitors’ or barristers’ negligence were different because, ordinarily, the court did not require expert evidence and was in a position to make its own assessment of the relevant standard of care. However, there was no authority which suggested that, because of the absence of expert evidence, allegations of negligence against a solicitor or a barrister were ordinarily capable of being resolved by way of summary judgment. A trial of the allegations of negligence in October 2011 would require a detailed consideration of the context and factual background which were not suitable for disposal by way of summary judgment: Ali v Sydney Mitchell and Co (a firm) [1980] AC 198 applied. Alexander Hill-Smith (instructed by Osmond & Osmond Solicitors) appeared for the appellant; Nicholas Davidson QC (instructed by Clyde & Co LLP) appeared for the respondent. Eileen O’Grady, barrister Click here to read a transcript of Sciortino v Beaumont