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PI and Civil Litigation

Law - practice - procedure

08 JUL 2015

Chinnock v (1) Veale Wasbrough (2) Karen Rea [2015] EWCA Civ 441

Chinnock v (1) Veale Wasbrough (2) Karen Rea [2015] EWCA Civ 441
Professional negligence – legal advice - clinical negligence - breach of duty - limitation

Court of Appeal: Longmore LJ, Jackson LJ, Mr Justice Roth

7 March 2015

 An appeal against a decision that a professional negligence against a firm of a solicitors and a barrister was statute barred was dismissed.

 The claimant alleged that the defendants, from whom she had sought advice in 2001, had been negligent in advising her to abandon her claim for clinical negligence leading to wrongful birth of a severely disabled child.

 The first defendant issued protective proceedings and sought the advice of three medical experts and duly instructed the second defendant to advise the claimant in conference with two of the experts. The experts found that although there had been a lack of communication from the hospital, it had taken reasonable decisions in the management of the pregnancy and that even if there had been better communication, the management of the pregnancy would have been unchanged. The defendants advised the claimant her claim would not succeed on liability and the claim lapsed in 2001. Eight years later in 2009 the claimant instructed another firm of solicitors who concluded that she had received bad advice.
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At first instance, the court found that the defendants had acted non-negligently and that limitation had expired in 2007 since the claimant knew all material facts and it was not relevant whether she knew that the defendants conduct was negligent or not.

The claimant appealed arguing that the defendants had failed to identify a viable cause of action in that the hospital had failed to advise the claimant over the risks of genetic defect following ultrasound scan and that the claim was not statute barred because the claimant had not learnt that the defendants’ advice was incorrect until 2009.

The court of appeal dismissed the appeal, noting that the law in relation to a doctor's duty to provide information and advice has developed substantially in the last fourteen years, although the advice which was given was correct on the basis of the material available and the law as it stood in July 2001. There was no negligence by the defendants.

As to limitation, the court concluded that although the reasoning in the first instance judgment was flawed, the outcome was correct. Limitation did not start to run until the claimant knew, or ought to have known, that she had lost a viable cause of action. While the claimant did not have actual knowledge for the purposes of section 14A of the Limitation Act in 2001, she did have constructive knowledge of proposition 1 by reason of section 14A (10). The claimant could have been expected to make further enquiries and seek legal advice elsewhere well before the expiry of the limitation period, six years after receiving the original advice. She had “every opportunity” to obtain the knowledge required to pursue matters further but chose not to do so.

A useful judgment on limitation and a reminder of what duties litigators are under and the steps they need to take in order to non-negligently investigate claims.

Joseph Carr & Ellen Lucas, Anthony Gold