Williams v Fanshaw Porter & Hazelhurst (A Firm)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Park,Lord Justice Mance,Lord Justice Brooke |
| Judgment Date | 18 February 2004 |
| Neutral Citation | [2004] EWCA Civ 157 |
| Docket Number | Case No: B2/2003/0886 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 February 2004 |
[2004] EWCA Civ 157
Lord Justice Brooke
Vice President of The Court of Appeal (Civil Division)
Lord Justice Mance and
Mr Justice Park
Case No: B2/2003/0886
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER COUNTY COURT
Mr Recorder Brunnen
Royal Courts of Justice
Strand,
London, WC2A 2LL
Edward Bartley Jones QC & Simon Earlam (instructed by Cheryl Lewis & Company) for the Appellant
Andrew Sander (instructed by Weightman Vizards) for the Respondents
Overview
The claimant, Ms Elaine Williams, commenced an action in the Manchester County Court for professional negligence against the defendants, Fanshaw Porter & Hazlehurst, a firm of solicitors. I will refer to them as FP & H. I will describe the factual background later. FP & H admitted (or at least did not seriously deny) negligence and breach of duty, but pleaded that the action was time-barred by the Limitation Act 1980. It is common ground that the cause of action arose on 25 August 1994. If the normal limitation period of six years from the accrual of the cause of action applied Ms Williams needed to commence her action not later than 24 August 2000. In fact she did not commence it until 14 December 2000. Thus a limitation defence was to be expected, and such a defence duly materialised. Ms Williams' reply to the defence was and is that on the particular facts of the case, which I will describe below, the six years limitation period did not start to run until a date which was less than six years before she commenced her action. She said that that was the result of s.32(1) (b) of the Limitation Act, or alternatively of s.32(2) of the same Act.
The District Judge directed that whether the action was in any event barred by limitation should be determined as a preliminary issue. The hearing to determine that issue took place before Recorder Brunnen in Manchester County Court on 30 and 31 January 2003. The Recorder reserved judgment and delivered it on 3 March 2003. He decided that s.32(1) (b) did not apply, and that s.32(2) did not apply either. The result was that the limitation period had expired before Ms Williams commenced her action. Therefore the action was statute barred. Ms Williams now appeals to this court by the permission of Lord Justice Mance.
Mr Bartley Jones QC and Mr Earlam, counsel for Ms Williams, have submitted that the decision of the Recorder was wrong so far as it related to s.32(1) (b) . They say that that paragraph did apply, with the result that the limitation period did not start to run until a date which was less than six years before the commencement of the action on 14 December 2000. They do not challenge the Recorder's decision so far as it concerned s.32(2) . On behalf of FP & H Mr Sander supports the Recorder's conclusion that s.32(1) (b) did not apply. He accepts, however, that, if it did, the time at which the limitation period would have commenced to run would have been too late for a limitation defence to succeed.
In my judgment, for the reasons which I will explain, the Recorder was wrong on the critical issue. I consider that on a proper view of the facts s.32(1) (b) did apply. The limitation period did not start to run at the time of the breach of duty (25 August 1994) but only at a later date, which, as I will describe later, may have been either 15 July 1995 or, possibly, 10 June 1996. Either date was less than six years before Ms Williams' action was commenced. Therefore the action is not statute barred.
The law
The general rules for limitation of actions in tort and contract are contained in ss.2 and 5 of the Limitation Act 1980.
2. 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. 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.
Ms Williams's claim against FP & H may sound in tort or in contract or in both. If the general rules apply the limitation period began to run when the cause of action accrued. In some cases there can be difficult questions about when a cause of action accrued, but not in this case. As I have already said, it is agreed that Ms Williams's cause of action accrued on 25 August 1994.
There are exceptions to the general rules. The exceptions which matter in this case are contained in s.32. I will set out most of subsection (1) and the whole of subsection (2) . As regards s.32(1) it will be seen that it contains three paragraphs. I reproduce all three of them, but it should be noted that the one which is specifically in point in this case is paragraph (b) .
32 (1) … where in the case of any action for which a period of limitation is prescribed by this Act, either –
(a) the action is based upon the fraud of the defendant, or
(b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant, or
(c) the action is for relief from the consequences of a mistake,
the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. …
(2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.
So far as s.32(1) (b) is concerned the critical question is whether any fact relevant to Ms Williams's right of action against FP & H was deliberately concealed from her by FP & H.
There have been a number of decided cases which concerned s.32. None of them was concerned with the specific point which arises in this case. I will briefly mention two House of Lords cases. In Sheldon v RHM Outhwaite (Underwriting Agencies) Ltd [1996] AC 102 their Lordships decided that s.32(1) (b) applies where the concealment of a relevant fact occurs after the cause of action has accrued as well as at the time when it accrues. I note Lord Browne-Wilkinson's encapsulation (at p.142F) of the mischief aimed at: 'to ensure that the Act does not operate to bar the claim of a plaintiff whose ignorance of the relevant facts is due to the improper actions of the defendant.' Cave v Robinson Jarvis & Rolf [2003] 1 AC 384, [2002] UKHL 18, was concerned with whether the words in s.32(2) 'deliberate commission of a breach of duty' were satisfied if the defendant deliberately did something which has been found later to have been a breach of duty, but at the time when he did it he did not realise that it was a breach of duty. The House of Lords, overruling (much to the relief of professional advisers of all kinds) the earlier decision of the Court of Appeal in Brocklesby v Armitage & Guest [2002] 1 WLR 598, held that the words of s.32(2) were not satisfied. The subsection required the defendant, not just to know what he was doing, but also to know that it was a breach of duty. It did not apply to a negligent breach of duty which the defendant did not realise he was committing.
Mr Bartley Jones submits, and I agree, that his argument in the present case does not amount to a reintroduction of the overruled decision in the Brocklesby case. He says, and again I agree, that both Brocklesby and Cave were cases about s.32(2), whereas this case is exclusively about s.32(1) (b) . There are, however, two passages in the speeches in Cave– one in the speech of Lord Millett and the other in the speech of Lord Scott – to which reference has been made in this case. I will not set them out here, but I will come to them at a later point.
The Facts
In the following subparagraphs I will outline the relevant facts, occasionally commenting on the significance of some of them.
i) In January 1990 Ms Williams attended at the medical practice of which she was a patient. She says that a doctor gave to her a repeat prescription for six months supply of a birth control drug known as Femodene. One of the doctors at the practice was Dr Salahuddin.
ii) In May 1990 Ms Williams had a stroke, the consequences of which have been serious and enduring. She says that the stroke was caused by her having taken the Femodene. Because she had fluctuating blood pressure that drug was unsuitable and dangerous for her in that it exposed her to the risk of strokes. She also says that before the Femodene was prescribed for her the doctor ought to have checked her blood pressure, but he did not do so.
iii) Ms Williams obtained legal aid to consider whether she could bring a claim for professional negligence against the doctor. In October 1991 she instructed FP & H to act for her. From an early time her case was conducted by Mr Brown. He is now a fully qualified solicitor and the managing partner of FP & H, but in 1991 he was an employee of the firm, and was still qualifying as a legal executive.
iv) Ms Williams' initial instructions to Mr Brown were that it was Dr Salahuddin who had prescribed the Femodene for her and who had omitted to check her blood pressure.
v) On 17 May 1994 FP & H, acting by Mr Brown, commenced an action by Ms Williams in the Birkenhead County Court against Dr Salahuddin. This was case BI 423528. It should be noted that the claim was brought against Dr Salahuddin alone, not for example against a partnership of which he was a member.
vi) Dr Salahuddin, no doubt supported by the Medical Defence Union or some similar body, instructed Hempsons to act as solicitors for him to defend the...
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