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PI and Civil Litigation

Law - practice - procedure

07 NOV 2013

Susan Berney v Thomas Saul (t/a Thomas Saul & Co) [2013] EWCA Civ 640; (2014) APIL 027

The claimant was successful in her appeal against a decision at first instance that she was time-barred from pursuing a claim for professional negligence against her previous solicitor who acted for her in a personal injury claim arising out of a road traffic accident on 20 April 1999 and which was eventually settled on 1 November 2005.
5 June 2013
Court of Appeal
Moses LJ, Rimer LJ and Gloster LJ
In a personal injury claim where liability for a road traffic accident on 20 April 1999 had been admitted, the claimant's solicitors issued a claim form naming the wrong defendant. The claim form was amended after expiry of the limitation period. No proper particulars of claim were filed or served.
The claimant instructed new solicitors in 2004. They advised prospects were poor as the claim would likely be struck out. Settlement was eventually reached on 1 November 2005 in the sum of £25,000. The claimant issued a claim for negligence against her previous solicitors on 10 January 2011 saying that she felt compelled to accept the offer made due to litigation risk and the risk of an adverse costs order. She alleged that she would have recovered far more in damages had her claim been handled properly.
At first instance the court held that the claimant's action was time-barred because it had not been brought within six years of her accident date. On appeal the decision was reversed.
It was held that the risk that the claimant would not have been granted permission to serve out of time was small because liability was admitted. If she had been given an extension for service, there was no reason to assume that her claim would have been limited to a certain sum. There was every chance that her claim may have been limited to the sum pleaded on the claim form, ie £50,000 or less, depending on the evidence obtained in support but this did not affect the court's decision in the present case.
By virtue of s 2 of the Limitation Act 1980 the appeal was allowed on the basis that claims for professional negligence must be brought within six years of the loss being sustained. This was 1 November 2005 for present purposes. The claim was issued on 10 January 2011 and was therefore in time.
This case makes it clear that the time limit for limitation purposes in professional negligence cases run from the date of actual loss, rather than the date on which the alleged negligence occurred. The decision of the court was finely balanced and the claimant, who acted in person, did extremely well to persist with her action and argue her case until its successful conclusion.

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