Ms Anna Christie v The Mary Ward Legal Centre
| Jurisdiction | England & Wales |
| Judge | Victoria McCloud |
| Judgment Date | 01 July 2022 |
| Neutral Citation | [2022] EWHC 1684 (QB) |
| Docket Number | QB-2019-002530 |
| Court | Queen's Bench Division |
| Year | 2022 |
[2022] EWHC 1684 (QB)
Judge: Victoria McCloud
A Master of the Senior Courts Queen's Bench Division
QB-2019-002530
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Ms Christie the Claimant, representing herself.
Mr Wood, counsel for the First Defendant, instructed by Anthony Gold Solicitors LLP
Mr Maxwell, counsel for the Second Defendant, instructed by Messrs. Browne Jacobson LLP
This is my judgment on one issue in this professional negligence case which is whether this claim should be struck out on the basis that it cannot succeed due to having been brought outside the applicable Limitation Period.
The Defendants argue that time runs from the earliest date at which damage was caused to the Claimant. The Claimant, appearing for herself, argues that the time should run from the date when the consequence of the alleged (and for present purposes presumed) negligence alleged against the Defendants became irremediable.
The underlying case is I think quite a sad one. The Claimant incurred unpaid service charges on her long leasehold property at 28 Pallant House, Tabard Street, SE1. which were owed to the landlord, her local council. She could not afford to pay those and proceedings for forfeiture began. She sought legal advice from the Mary Ward Centre and they obtained specialist advice on long leasehold forfeiture from counsel who is their co-defendant. The advice was to the effect that it would be a disaster for the lease to be forfeit since the Claimant would lose the lease and its value and that it was best to find a way to ensure that she was able to sell the property, realise the value and pay off the arrears.
Ms Christie ideally wanted, on her case, not to lose the property. She was unaware (and here I repeat I am effectively presuming her case for present purposes) that the County Court had the power to grant relief and to attach the arrears of service charge as a charge or loan against the property. She pleads the Service Charge (Loan) Regulations 1992, Employment Allowance and Support Regulations 2008 and s.138(2) County Courts Act 1984.
By the time she found that out, not having been advised that that was an option, it was too late because the sale had been agreed, and all that remained was technical relief from forfeiture so as to enable the lease to be transferred to the purchasers. Leading up to this point there had been court hearings and orders along the way, not of a very substantial nature but more a matter of delaying so that a buyer could be found. Specifics of the chronology where useful will be mentioned below. It is as will have been inferred, a claim in respect of professional negligence.
The Council issued an arrears claim against Claimant seeing forfeiture engaged D1 who instructed D2 to advise. The advice is at p230. Arrears had to be paid, and there was a right to relief if the sum was paid. However if the lease was forfeit then the council would get a large windfall, and that it was ‘difficult’ to see an alternative to selling, the arrears being around £14,000, possibly inclusive of interest. There was no substantive defence.
That was the course which was as counsel put it ‘navigated’ throughout the litigation, and I have at a previous hearing held that the claim against the solicitors be struck out on the basis they take the benefit of the defence which solicitors can claim where they have relied entirely on counsel's advice, in what is a fairly unusual area of work where typical council claims relate to rent arrears and not long lease forfeiture.
On 6 November 2012 at the first hearing of the possession claim, before DJ Worthington, Counsel for both sides appeared. The order recites that it appeared to the court that the Claimant (landlord) had a right to forfeiture of the lease and there was an adjournment on terms that Ms Christie would serve a statement to address the prospects of a sale or other ways to pay off the arrears. Costs were in the claim.
On 30 January 2013 there was a consent order which provided for settlement of the claim for forfeiture on terms that she would pay the sum due, on the understanding she would be selling the flat, and she would pay the costs of the proceedings. Liberty to restore for enforcement.
On 19 April 2013 there was due to be a further hearing to reconsider because time had passed and the flat had not been sold and the arrears had not been paid. It was coming back under the ‘right to apply’ within the previous order. Again however that was dealt with by consent, again on the terms that Ms Christie would pay the arrears (as now larger than before) plus costs.
On 28 June 2013 the property was again not sold nor were the arrears paid off and it came back before the court for a possession hearing at which Ms Christie represented herself. At that hearing the court ordered possession to be given by 9 August 2013, but the order made provision for an application for relief to be made and allowed a further 6 weeks for that. Permission to appeal refused. Costs Reserved. The Second Defendant argues that at this stage at the latest the claimant was ‘worse off’ because she would need relief from forfeiture or to set aside or appeal the possession order and hence that this is the latest date for the commencement of time for Limitation purposes.
The sale of the flat was completed on 30 July 2013, and it seems contracts were exchanged virtually at that date also. The case for Ms Christie is that costs and so forth owed to the Council were paid on or about 31 July 2013.
2 May 2014 sale had been agreed with purchasers in principle, and an order was made which regularised the position after the sale had been agreed so as to grant relief, recording that the arrears had been paid. Hence the purchasers would get clear title.
The claim is pleaded on the footing that the defendants negligently failed to avoid the sale of the property (which was in effect a forced sale), such as by seeking relief from forfeiture, failure to advise on matters such as waiver, failure to advise about alleged defects in the s.146 notice which would have prevented forfeiture, and other matters. It was common ground that I should assume negligence is made out for the purposes of this Limitation issue. Essentially it is said the Defendants failed properly to defend the action which triggered sale. The nature of the alleged loss is the lost value of the lease, she having assigned it on sale when she need not have done and of course the property has risen in value since, and she is unable to afford a new flat. Also costs of sale etc. There was no mortgage on the property so virtually all of the equity was Ms Christie's. The location of the flat was Tabard Street, near the ‘Shard’ building in London.
The relevant provisions relating to strike out and summary judgment were uncontroversial. Section 2 of the Limitation Act is the applicable section for Limitation, and it states:
“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.”
It was uncontroversial that that was the applicable section and the issue is ‘when did the cause of action accrue’? The period of 6 years prior to the date of issue of the claim is 15 July 2013. It is self-evident that the sale of the flat, irreversibly, took place at the end of July 2013 and that this claim was brought within 6 years of that date. At that stage she could do nothing to escape the sale, or perhaps nothing remotely feasible. The Defendants however argue that time, for the Act, runs from an earlier date which would be the date when any form of loss however slight, was suffered by Ms Christie due to the (presumed) negligence.
The authorities
Counsel for Mr Maxwell for D2 took me through the relevant authorities including those from the Claimant (who also made her own submissions).
Berney v Saul [2013] PNLR 26 was cited by both sides, and D2 accepted that Berney contains a helpful summary of the applicable principles. There, C was injured through the negligence of D, on 20 April 1999 (a personal injury claim). With the aid of solicitors a claim was issued on 12 April 2002 but against the wring defendant. 8 August 2002 proceedings were issued against the correct Defendant and therefore out of time but no point was taken on limitation. Nothing very much happened, no Particulars of Claim were provided, and the action was vulnerable to being struck out (as counsel advised on 2 June 2004). 13 June 2005 the Claimant had by then changed solicitors and they sought agreement to an extended date for Particulars to be served, but this was not agreed. The claim then settled for £25,000 which it was said to be an undervalue.
Professional negligence proceedings started against the first set of solicitors on 10 January 2011. The Solicitor-Defendants argued the claim was statute-barred and argued that the latest damage date was 2 June 2004, which was the date when the Claimant had been advised the claim was liable to be struck out and, presumably therefore the latest date at which the Claimant might be said to have been unaware that things had gone awry. The Claimant argued that the limitation period should run from 1 November 2005 which was the point at which the claim had settled for a (presumed) undervalue, and therefore no better outcome could be obtained in line with the true value of the case and the loss could be quantified. The Defendants in effect argued that once the case was liable to strike out it would have been inevitable that steps needed to be taken to salvage matters and hence the Claimant had been worse off well prior to the date of settlement of the case. In short the claim was at least to some...
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