The limitation period
in solicitor negligence claims
The case of Susan
Berney v Thomas Saul (t/a Thomas Saul & Co) [2013] EWCA Civ 640 is an
interesting illustration of when the six year limitation period commences for solicitor negligence
claims based upon the conduct of litigation.
The claimant instructed solicitors to represent
her in a personal injury claim following a road traffic accident in 1999. The
defendant’s insurers in this claim accepted liability. The solicitors
issued a claim form in 2002, but named the wrong defendant. The parties then
engaged in a lengthy period of correspondence relating to medical records and
evidence. The solicitors re-served an amended claim form but failed to
serve or file particulars of claim.
In 2004 the claimant instructed new solicitors who advised
her, due to the long delay in serving her particulars of claim, her claim was
vulnerable to being struck out by the court. Consequently, the claimant felt
compelled to settle her claim by negotiation. It was settled for £25,000 plus
costs in November 2005.
In January 2011, the claimant issued a professional
negligence claim against her first solicitors. She
alleged that had her personal injury claim been dealt with properly, she would
have received far more in damages.
Her claim was initially struck out by the Court on grounds
that it was time-barred.
The Court
of Appeal overturned this decision. It was held that the cause
of action accrued not when the culpable conduct occurred, but when the claimant
first sustained damage. A useful
formulation is to consider when the
claimant was worse off financially by reason of a breach of the duty of care.
In this claim, loss had occurred when the claimant was compelled to settle her
case in November 2005. Accordingly, the six year time limit started to run
from then and had not expired when she brought her professional
negligence claim in January 2011.