Two bites of the apple - limitation in professional negligence cases

26 July 2021

The recent Court of Appeal decision in Lillo Sciortino vs Marc Beaumont [2021] EWCA Civ 786 provides useful guidance on limitation in professional negligence claims and confirms that a barrister who gave two pieces of negligent advice in respect of the same matter could be sued even though the claim in respect of the first piece of advice was out of time and statute-barred.

Summary of Facts

The Court of Appeal heard a professional negligence claim against a barrister, Marc Beaumont (the Respondent), in relation to advice he gave to Lillo Sciortino (the Appellant), an individual who was involved in bankruptcy proceedings. The primary issue the Court had to decide was whether or not the claim brought by the Appellant, who was the Claimant in the negligence claim, was statute-barred.

The Appellant was made bankrupt in 2007, and on 8 June 2010 his trustee in bankruptcy applied for an order for possession and sale of the Appellant’s property (which was granted on 7 March 2011). The Appellant subsequently engaged the Respondent for his advice on the prospects of appealing the order. The Respondent gave advice in a conference on 20 April 2011 that the County Court had been wrong to make the order for possession and sale, had no power to do so, and that any appeal would have a 55-60% prospect of success. The Respondent also advised that the opportune time for settlement negotiations to take place would be after permission to appeal was granted, but in advance of any hearing of the appeal. In the event, the court listed a ‘rolled up’ hearing, where it would decide on both permission and the substantial appeal at the same hearing, rendering the Respondent’s proposed course of action impossible.

The consequence of this was that the Appellant required an extension to his Legal Aid Certificate, and in turn required up to date advice from counsel on the merits of the appeal. To this end, the Respondent drafted an advice for the Legal Services Commission on 26 October 2011, reiterating his previous advice. The appeal proceeded, and the Appellant was unsuccessful, with the Judge asserting ‘it is difficult to see what conceivable basis the bankrupt could have had for resisting the making of the order of 29 July 2010”.

The Current Claim

As a result of the above advice (being the advice in April 2011 and the subsequent written advice in October 2011), the Appellant brought a claim against the Respondent, asserting that his advice was negligent.

The claim form was issued on 25 October 2017. The applicable limitation period in most professional negligence cases (both in contract and tort) is six years from the date of the negligence pursuant to the Limitation Act 1980. Therefore, the claim form was issued more than six years after the April 2011 advice and very narrowly (by one day) within six years of the October 2011 advice.

The Respondent sought an order to strike out the Appellant’s claim on the basis of limitation, arguing that the whole claim was statute barred.

At first instance, it was held that the claim was statute barred as it could not be pleaded that the October advice was causative of any loss suffered by the Appellant. A High Court judge agreed, and found that ‘the negligence alleged … is advising the claimant to bring a hopeless appeal’, and that if the advice was indeed negligent ‘then loss occurred as soon as the appeal was filed’.

Ultimately, however, on appeal to the Court of Appeal, the court considered the chronology of the advice given by the Respondent, and came to a different conclusion. The court noted that the initial advice promoted settlement, and that this was not possible due to various procedural setbacks. The Court held that the Respondent owed two standalone duties of a care to the Appellant on the basis that the second advice was sufficiently distinct from the April advice. Reflecting on the differences the court noted that ‘the Respondent was being asked to give different and more comprehensive advice, in very different circumstances … there were also significant differences in the nature and scope of the advices provided and the material available for consideration on each occasion.’ As such, the court concluded ‘I do not accept that, as a matter of fact, the advice of 26 October was merely confirmatory of the advice of April/MayIt was a separate and full advice’.

The Court of Appeal therefore held that the advice given in October triggered a new limitation date, and the Respondent was permitted to continue his claim.

Comment

It is fairly common within litigation to seek the advice of counsel at different stages of a claim. It is even possible in particularly lengthy litigation for this to span over six years, the limitation period for most negligence cases. This advice is not always correct and may later prove to be negligent (please see our previous blog on when it is reasonable to rely on advice from counsel).

In a decision which will assist claimants who have been through multi-stage or multi-phase litigation, the Court of Appeal recognised this reality in assigning a standalone duty of care to each piece of advice, should the facts call for it, and this decision will hopefully give reassurance to those who have received unsatisfactory legal advice over a long period of time.

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