Kershaw v Whelan (No 2)
| Jurisdiction | England & Wales |
| Judgment Date | 23 January 1997 |
| Date | 23 January 1997 |
| Court | Queen's Bench Division |
Queen's Bench Division
Before Mrs Justice Ebsworth
Equity - breach of fiduciary duty - Limitation Act not applicable
Where a claim was made in the alternative for negligence and breach of fiduciary duty in respect of the same subject matter, the Limitation Act 1980 did not apply either directly or by analogy to the claim in equity. The plaintiff could pursue the claim for fiduciary breach, in the absence of laches or acquiescence, even where the claim in negligence was statute-barred.
Mrs Justice Ebsworth so held in giving judgment in Winchester after trial of preliminary issues of limitation in an action brought in the Liverpool Registry of the Queen's Bench Division of the High Court by Ian Kershaw for damages for breach of duty of care, negligence and breach of fiduciary duty by the defendant, Alan H Whelan in dealing with the estate of his father, Cyril Kershaw.
Mr Nicholas Davidson, QC, for the defendant; Mr Ian Leeming, QC and Mr John Fryer Spedding for the plaintiff.
MRS JUSTICE EBSWORTH said the plaintiff was aged 18 when his father died intestate in 1979. He had severe physical disabilities. His father had left some £45,000 in a fund to be distributed by trustees. The trustees had an absolute discretion to distribute the fund among the plaintiff, his stepmother and his sister.
The trustees had distributed nearly £40,000 to the stepmother and the rest to the two children. The plaintiff was unhappy with that distribution and by a writ issued on March 11, 1991 claimed the defendant, a solicitor acting for the plaintiff's stepmother, had improperly influenced the trustees.
The breach alleged arose from a letter from the defendant to the trustees on June 20, 1979 which contained information about the plaintiff's circumstances, which he said was untrue or highly misleading, and which suggested that the stepmother should benefit from the fund to the exclusion of the plaintiff. The causes of action relied on were negligence at common law or breach of a contractual duty of care, or alternatively breach of fiduciary duty.
The common law claims were statute-barred unless extended by subsections 32(1)(b) and (2) of the 1980 Act. Although the defendant had deliberately concealed the letter from the plaintiff and his advisers, time had begun to run from 1983 when the letter's existence became known, so that the common law claims were statute-barred.
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