Lillo Sciortino v Marc Beaumont

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Coulson,Lord Justice Newey
Judgment Date25 May 2021
Neutral Citation[2021] EWCA Civ 786
Docket NumberCase No: A3/2020/1048

[2021] EWCA Civ 786

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

(CHANCERY DIVISION)

HIS HONOUR JUDGE JARMAN QC

[2020] EWHC 189 (Ch)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Newey

Lord Justice Coulson

and

Lord Justice Stuart-Smith

Case No: A3/2020/1048

Between:
Lillo Sciortino
and
Marc Beaumont

Alexander Hill-Smith (instructed by Osmond & Osmond Solicitors) for the Appellant

Nicholas Davidson QC (instructed by Clyde & Co LLP) for the Respondent

Hearing date: 5 May 2021

Approved Judgment

Lord Justice Coulson
1

Introduction

1

The primary issue raised by this second appeal concerns the date when a cause of action in negligence accrues against a barrister who has advised on two separate occasions about the same or similar issues. Is there one single cause of action which accrues when the first negligent advice was given and acted upon (in which case, on the facts of this case, the claim would be statute-barred), or does a separate cause of action – albeit for lesser loss and damage — accrue when the second advice is given and acted upon (in which case the lesser claim here, based on that second advice, would not be statute-barred)? Both Master Teverson (“the Master”) and His Honour Judge Jarman QC (“the Judge”) concluded that the answer was the former, not the latter, and that therefore all relevant parts of the claim were statute-barred. Permission was given for this second appeal on the basis that the Appellant had a real prospect of success and that the appeal raised “an important point of principle as to the application of limitation in circumstances such as these.”

2

In order to understand precisely how this appeal arises, and the detailed nature of the opposing positions on limitation, it is necessary to set out the relevant events in some detail (Section 2 below). I then deal more briefly in Section 3 with the procedural history. In Section 4, I set out the law concerned with limitation in similar circumstances to these. I then analyse and provide an answer to the limitation issue, which I have called Issue 1, in Section 5.

3

It should be noted at the outset that, by way of a Respondent's Notice, the Respondent maintains that, even if the Master and the Judge had been wrong to find that the claims were statute-barred, their orders striking out this part of the claim should still be upheld because, on a proper analysis of the law, it could not be said that the respondent had been negligent. This issue was raised both before the Master and the Judge but, in view of their conclusions on limitation, neither of them dealt with it in any detail. Both said that, in their view, the merits of the allegations of negligence could not be determined by way of summary judgment. On behalf of the Respondent, Mr Davidson QC submitted that they were wrong to reach that conclusion, and that the merits can and should be determined at this stage. I have called that Issue 2, and I deal with the relevant law and Issue 2 itself in Sections 6 and 7 respectively. My summary view as to the proper disposal of this appeal is set out in Section 8.

2

The Relevant Events

4

The Appellant was made bankrupt on 29 June 2007. At that date, he was the freehold owner of a property known as 221, Woodham Lane, New Haw in Surrey (“the property”). When the trustees in bankruptcy were appointed on 28 December 2007, the property was therefore part of the bankruptcy estate and vested in the trustees.

5

On 8 June 2010, the then trustee in bankruptcy, Mr Treharne, applied to Kingston County Court for orders for possession and sale of the property. A return date was given for the hearing of the application on 19 July 2010.

6

On 6 July 2010, the solicitors acting for the trustee, Clarke Willmott, confirmed to the Appellant's agent and accountant, Mr Crilly, that the trustee was prepared to give the Appellant further time to resolve the outstanding debt, and that they would write to the court seeking to vacate the date of 19 July. On that same day, they wrote to the court saying that the trustee was willing to allow the Appellant sufficient time to liaise with HMRC, and asked if the hearing date for the application could be vacated and relisted for the first available date after 9 September 2010.

7

For whatever reason, it appears that this letter did not find its way onto the court file, at least not by the time of the hearing on 19 July 2010. Clarke Willmott did not chase it up, apparently assuming that the hearing would be vacated without further action on their part. In consequence, without knowledge of the letter of 6 July, District Judge Stewart struck out the application for possession as a result of the non-attendance of the parties.

8

When they received a copy of that order, Clarke Willmott wrote again to the court on 22 July, setting out the history, and enclosing a further copy of their letter of 6 July 2010. They asked if the matter could be referred back to District Judge Stewart with a request that the application be re-instated and a hearing listed for the first available date after 9 September 2010. That letter was not copied to Mr Crilly.

9

The court responded on 26 July, saying that District Judge Stewart had looked again at the file which did not contain the letter of 6 July. The District Judge said that he would consider setting aside the order of 19 July only if Clarke Willmott could demonstrate that the letter of 6 July had actually been sent. Clarke Willmott wrote again to the court on 27 July explaining how and why they considered the letter had been sent and repeating many of the points in their previous letter. This exchange was also not copied to Mr Crilly.

10

This second letter from Clarke Willmott was apparently sufficient for District Judge Stewart because, on 29 July, he ordered retrospectively that the hearing on 19 July be vacated, and that the order made on 19 July be set aside. Clarke Willmott sent a copy of that order to Mr Crilly on 5 August 2010 explaining briefly what had happened in respect of the hearing on 19 July, and how the court “has since rectified the matter”.

11

The hearing of the application for possession and sale of the property took place before District Judge Stewart on 7 March 2011. The Appellant appeared in person, assisted by his Mckenzie Friend. Although he sought an adjournment of the hearing, that was refused and, after argument, the orders for possession and sale were made. As part of the order, the District Judge declared that the trustee in bankruptcy was beneficially entitled to a 100% interest in the property.

12

Following the orders for possession and sale, the Appellant consulted the Kingston and Richmond Law Centre (“the Law Centre”), and they in turn instructed the Respondent to advise on the prospects of appealing the orders. There was a conference with the Respondent on 20 April which, according to the transcript, lasted almost 3 hours. It covered a wide range of issues, including suggestions that Clarke Willmott had acted improperly in their dealings with the court the previous July. This was to become a recurring theme in the Respondent's advice to the Respondent and, although it does not arise for consideration on this appeal, it forms part of the negligence allegations against the Respondent at paragraph 70 of the Particulars of Claim.

13

Although the transcript of the conference is in note form, it is plain that one of the principal points raised by the Respondent as a possible ground of appeal concerned ss.283A(3) and (4) of the Insolvency Act 1986 (“the 1986 Act”). It is necessary to set those out in order to indentify the Respondent's argument.

14

Section 283A(1) applies where, as here, property comprised in the bankrupt's estate consists of an interest in a dwelling house which was his sole residence. S.283A(2) provides that, at the end of a 3 year period following the date of the bankruptcy, that interest ceases to be comprised in the bankrupt's estate and vests in the bankrupt (without conveyance, assignment or transfer). Sections (3) and (4) provide the exceptions to that regime, as follows:

“(3) Subsection (2) shall not apply if during the period mentioned in that subsection—

(a) the Trustee realises the interest mentioned in subsection (1),

(b) the Trustee applies for an order for sale in respect of the dwelling-house,

(c) the Trustee applies for an order for possession of the dwelling-house,

(d) the Trustee applies for an order under section 313 in Chapter IV in respect of that interest, or

(e) the Trustee and the bankrupt agree that the bankrupt shall incur a specified liability to his estate (with or without the addition of interest from the date of the agreement) in consideration of which the interest mentioned in subsection (1) shall cease to form part of the estate.

(4) Where an application of a kind described in subsection (3)(b) to (d) is made the period mentioned in subsection (2) and is dismissed, unless the court orders otherwise the interest to which the application relates shall on the dismissal of the application—

(a) cease to be comprised in the bankrupt's estate, and

(b) vest in the bankrupt (without conveyance, assignment or transfer).”

15

The argument which the Respondent identified in the conference on 20 April 2011 ran as follows. Pursuant to s.283A(3)(b) and (c), the trustee's application for possession and an order for sale of 8 June 2010 prevented the re-vesting of the property in the Appellant on 29 June 2010, namely 3 years from the date of his bankruptcy. However, s.283A(4) provided that, where such an application “is dismissed, unless the Court orders otherwise, the interest to which the application relates shall on dismissal of the application … vest in the bankrupt”. The Respondent therefore advised that it was arguable that the order of 19 July 2010 had dismissed the application for...

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