Annett Osborne v Follett Stock (A Firm)and Another
| Jurisdiction | England & Wales |
| Judge | HHJ Paul Matthews |
| Judgment Date | 13 July 2017 |
| Neutral Citation | [2017] EWHC 1811 (QB) |
| Docket Number | Case No: C90BS929 |
| Court | Queen's Bench Division |
| Date | 13 July 2017 |
[2017] EWHC 1811 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BRISTOL DISTRICT REGISTRY
Bristol Civil Justice Centre
2 Redcliff Street, Bristol, BS1 6GR
HHJ Paul Matthews
(sitting as a Judge of the High Court)
Case No: C90BS929
Michael Berkley (instructed by Slee Blackwell) for the Claimant
Michael Bowmer (instructed by DWF LLP) for the Defendants
Hearing dates: 12–13 July 2017
Introduction
This is my judgment on a preliminary issue arising in a claim brought by the claimant against her former lawyers, in the emanations of both the original partnership and a subsequently formed LLP. The claim form was issued on 17 August 2016 as a claim for professional negligence against the lawyers for a failure to bring proceedings against another firm of solicitors, Coodes of Torpoint ("CT") for their alleged professional negligence in relation to the claimant's claim under a will made in 1997, whose testator died six days later.
The particulars of claim, dated 16 August 2016, make clear that two kinds of negligence were alleged against CT. The first related to an alleged failure to advise the claimant as to the procedure for attesting the will, as a result of which the claimant's husband was one of the attesting witnesses, so that the gift under the will to the claimant was void, by virtue of section 15 of the Wills Act 1837. This is referred to as "the Attestation Negligence". The second related to an alleged failure to advise the claimant as to the need for independent legal advice for the other party to an agreement to vary the terms of that will in favour of the claimant. This is referred to as "the Agreement Negligence".
It is common ground that any claim against CT in respect of either of these two alleged kinds of negligence is now statute barred. The negligence alleged against these defendants is that they failed to advise the claimant appropriately in relation to CT's alleged negligence as set out above, with the result that the claimant lost her opportunity to sue CT for that alleged negligence. The issue arising now, however, is whether any claim against the defendants in allegedly failing to advise the claimant appropriately is itself statute barred.
A defence was filed on behalf of the defendants on 1 November 2016, and a reply was filed on 29 November 2016. The defence raises, amongst other matters, the question of limitation. On 17 February 2017, Judge Denyer QC made agreed directions, including for the trial of a preliminary issue as to limitation. On 20 June 2017 Judge Cotter QC vacated a pre-trial review, and confirmed that the preliminary issue would be tried on the 12 th and 13 July 2017. That is the issue which I have heard, and on which I am now giving my judgment. At the hearing before me Mr Michael Berkley appeared on behalf of the claimant, and Mr Michael Bowmer appeared on behalf of the defendants. I am grateful to both of them for their cogent submissions. No evidence was heard for the purposes of this hearing. It was assumed that the claimant would be able to prove all the allegations made in her statements of case, though I emphasise that, at this stage, no findings have been made.
The Limitation Act 1980 relevantly provides:
"2. Time limit for actions founded on tort.
An action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued.
[…]
5. Time limit for actions founded on simple contract.
An action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued.
[…]
[14A. Special time limit for negligence actions where facts relevant to cause of action are not known at date of accrual.
(1) This section applies to any action for damages for negligence, other than one to which section 11 of this Act applies, where the starting date for reckoning the period of limitation under subsection (4)(b) below falls after the date on which the cause of action accrued.
(2) Section 2 of this Act shall not apply to an action to which this section applies.
(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) below.
(4) That period is either—
(a) six years from the date on which the cause of action accrued; or
(b) three years from the starting date as defined by subsection (5) below, if that period expires later than the period mentioned in paragraph (a) above.
(5) For the purposes of this section, the starting date for reckoning the period of limitation under subsection (4)(b) above is the earliest date on which the plaintiff or any person in whom the cause of action was vested before him first had both the knowledge required for bringing an action for damages in respect of the relevant damage and a right to bring such an action.
(6) In subsection (5) above "the knowledge required for bringing an action for damages in respect of the relevant damage" means knowledge both—
(a) of the material facts about the damage in respect of which damages are claimed; and
(b) of the other facts relevant to the current action mentioned in subsection (8) below.
(7) For the purposes of subsection (6)(a) above, the material facts about the damage are such facts about the damage as would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.
(8) The other facts referred to in subsection (6)(b) above are—
(a) that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence; and
(b) the identity of the defendant; and
(c) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant.
(9) Knowledge that any acts or omissions did or did not, as a matter of law, involve negligence is irrelevant for the purposes of subsection (5) above.
(10) For the purposes of this section a person's knowledge includes knowledge which he might reasonably have been expected to acquire—
(a) from facts observable or ascertainable by him; or
(b) from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek;
but a person shall not be taken by virtue of this subsection to have knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.]"
Section 14A was added by the Latent Damage Act 1986. The period of limitation under ss 2 and 5 is usually referred to as the primary limitation period. That under s 14A is generally referred to as the secondary limitation period.
Facts assumed
The case stems from the will of one Filip Roth, a former Yugoslav prisoner of war. He formed a long-term relationship with the claimant's aunt, Miss Wills. When she died in 1995, by her will she left her property, including a farm in Cornwall, to him. His previous will having become out of date, he made a fresh will leaving the property to his natural daughter Liza Benakovic ("Lisa"), if she could be located, otherwise to the claimant. Shortly thereafter, Liza was located by the Red Cross, so he made another will, leaving the bulk of his estate to Liza, and only £10,000 to claimant. Subsequently, however, apparently being disappointed in some way in Liza, he decided to change his will, and the claimant and her husband, and their friend and professional associate, a Mr Stuart Condliffe, arranged for a consultant with CT to draft a simple new will for Mr Roth. On 11 February 1997, the testator executed that new will, by which he gave a pecuniary legacy of £50,000 to Liza but left everything else to the claimant. The claimant and her husband were also appointed executors of the will.
Unfortunately, because of the absence of one of the intended witnesses, this will was witnessed by the claimant's husband. Mr Roth died six days later on 17 February 1997. Four days later, on 21 February 1997, the claimant consulted different solicitors, and was told for the first time of the problem under section 15 of the Wills Act 1837. The effect was not that the whole will was invalid, but that the gift in favour of the claimant certainly was. As a result, there was a partial intestacy of the gift to the claimant, which therefore devolved upon Liza, as the testator's daughter.
According to the claimant, at the funeral of Mr Roth she reached an agreement orally with Liza, which with the assistance of CT was reduced into writing by a document dated 1 March 1997. By this agreement the will was to be varied. The legacy in favour of Liza was to be increased to £75,000, but everything else was to go to the claimant. Unfortunately, Liza was not advised to, nor apparently did she, obtain any independent legal advice in relation to this agreement. Nor, apparently, was the claimant advised of the need for such advice if the agreement was to be free from challenge.
Following this agreement, the claimant and her husband, believing that the will as varied was valid and effective, obtained probate on 23 July 1997. The instructions of CT ended in February 1998. In 2004 to 2005 there was correspondence between various parties, including with Mr Stuart Condliffe. On 9 February 2005, Liza through her then solicitors wrote a letter of claim to the claimant, alleging that the agreement of 1997 was not binding on her and that she was entitled to the whole of the estate of her father.
In...
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