Hopkins v MacKenzie
| Jurisdiction | England & Wales |
| Judgment Date | 26 October 1994 |
| Date | 26 October 1994 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Before Lord Justice Nourse, Lord Justice Mann and Lord Justice Saville
Limitation of actions - solicitor's negligence - loss of value of claim
A client's action against his solicitor for failure to maintain the value of his medical negligence claim did not for the purposes of the Limitation Act 1980 arise until such time as that negligence claim had been struck out for want of prosecution even though its value had been much reduced before that time.
The Court of Appeal so held in reserved judgments allowing an appeal by the plaintiff, Mr Eric Hopkins, from the decision of Mr Stewart Boyd, QC, sitting as a deputy High Court judge on January 28, 1994, ordering that the plaintiff's writ and statement of claim against his former solicitor, John Rothesay MacKenzie, formerly practising as the firm James R White & Co, be struck out.
Mr Adrian Whitfield, QC and Mr Andrew Spink for the plaintiff; Mr Rupert Jackson, QC and Miss Sue Carr for the solicitor.
LORD JUSTICE SAVILLE said that in 1982 the plaintiff had issued a writ against hospital governors alleging negligence in relation to an operation performed on him in 1979. In October 1985 the hospital governors issued a summons for an order striking out the action for want of prosecution. On February 4, 1986 Master Grant made that order.
On January 27, 1992, the plaintiff issued a writ against the solicitor who had acted for him in his medical negligence claim, alleging that through his carelessness he had lost all prospect of recovering damages from the hospital. The solicitor in his defence pleaded that the plaintiff's claim against him was statute barred.
Thus the question for decision was whether the plaintiff's cause of action against the solicitor arose before January 27, 1986, that is, more than six years before the issue of the present writ.
The deputy judge concluded that it had: the medical negligence claim, he said, had originally had some value; the duty of the solicitor was to take care to maintain and realise that value and had been a failure to exercise such care with the result that from mid-February 1984 there was an obvious risk that the action would be struck out.
The judge had no doubt that by, if not before January 27, 1986, the alleged negligence of the solicitor had reduced the value of the plaintiff's medical negligence claim to close to vanishing point even though the action was not actually struck...
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