If you are bringing a professional negligence claim, you must do so within a strict time limit known as limitation. But if a solicitor or barrister gives two pieces of negligent advice on two occasions, when does the limitation period begin? We look at a recent case that looked at just this point.
| Limitation in professional negligence matters
Limitation is the time that you have to issue any proceedings. This is to stop people bringing claims many years after the event. Therefore, before you issue your claim it is essential to ensure that your claim is not time barred. If you do not issue within the limitation period, the Defendant has a complete defence to the claim. This is sometimes referred to as ‘statute-barred’.
In professional negligence, the primary limitation period is six years after the date on which the cause of action occurs i.e. the limitation period begins to run on the date that the negligent advice was given.
| Sciortino v Beaumont EWCA Civ 786
In this case, the Claimant brought a professional negligence claim against a barrister. He alleges that the Defendant barrister gave negligent advice on more than one occasion.
The Claimant was made bankrupt in June 2007 as a result of a petition by the HMRC. The Claimant instructed the Defendant (the barrister) to advise on various bankruptcy issues in 2011. The Defendant first advised the Claimant in conference on 20 April 2011, then provided another advice on 26 October 2011.
The Claimant claims that the Defendant’s advice was negligent. As a result, and alleging professional negligence, the Claimant issued the claim on 25 October 2017. This was just within the six year period from the 26 October 2011 advice. The Defendant argued the claimant was out of time to issue the claim, and that the second piece of advice “gave rise to a new and separate caused of action.”
| The High Court
At the High Court, the Defendant successfully defended the claim. The Court struck out the claim on the grounds that the Claimant had issued the claim out of the limitation period. The judge decided that the second piece of advice given did not give rise to a new cause of action and was merely “confirmatory,” provided within the first piece of advice given. Therefore, the limitation period had started running from the date of the first advice.
The Claimant appealed the striking out of the claim. This was on the basis that the second advice gave rise to a new and separate cause of action. This appeal was heard by Judge Jarman QC who confirmed that he agreed with the judge at first instance. He dismissed the appeal.
| Appeal to the Court of Appeal
The Claimant then appealed to the Court of Appeal. The Court of Appeal overturned the earlier decisions, allowing the Claimant’s appeal. It ruled that the Claimant had issued the claim relating to the 26 October 2011 advice within the limitation period.
The Court acknowledged that if the Claimant wanted to bring a claim concerning the first piece of advice, he would be out of time. However, he ruled that the two advices were in fact “separate alleged breaches,”. The Court said, “there is no reason in law to conclude that the claim in respect of the second advice is statute-barred: it simply gives rise to a separate, albeit smaller, claim.”
The Court stated that when a solicitor or a barrister provides advice on two or more occasions regarding the same issues, if the limitation period expires on the first advice, the claimant may still sue them for the later advice. As a result of this, the Claimant’s claim continues. From here, the Court will consider whether the Defendant’s second advice was negligent and caused the Claimant to suffer a loss.
| Key points
This case casts light on the difficulties in determining the starting point on the limitation period in professional negligence claims.
- Where you are out of time to issue a negligence claim regarding the first piece of advice, you may still be successful in a claim regarding a second piece of advice given at a later date. Therefore, it is important to not focus solely on limitation for the first piece of advice given.
- Sciortino v Beaumont is also a helpful warning to any potential Claimants not to leave issuing proceedings to the last minute. Issuing sooner rather than later can help avoid any limitation issues and confusion.
If you think you may have a professional negligence claim, it is important to speak to a solicitor as soon as possible. Call our professional negligence team on 0800 988 7756.