Witcomb v J. Keith Park Solicitors

Factual and Procedural Background

This appeal concerns the application of Section 14A of the Limitation Act 1980 in a negligence claim brought out of time against a firm of solicitors and a barrister. The claim arose from a road traffic accident in July 2002, in which the Plaintiff, then aged 17, suffered serious injuries including fractures and PTSD. Liability for the accident was admitted, but quantum was disputed. A settlement was reached in December 2009 for £150,000 in full and final settlement, without advice on provisional damages or obtaining a plastic surgeon's report.

The Plaintiff's condition worsened significantly, leading to the recommendation of a below-knee amputation in January 2017. Upon seeking to reopen the claim, the Plaintiff was informed this was not possible. After further medical advice, proceedings were issued in December 2019, relying on the alternative three-year limitation period under Section 14A.

The initial limitation issue was tried as a preliminary matter by Bourne J in June 2021, who found in favor of the Plaintiff. The Defendants were granted permission to appeal. The second Defendant's appeal was compromised before the hearing, and only the first Defendant was represented on appeal.

Legal Issues Presented

1. Whether the Plaintiff's claim was statute barred by the primary limitation period or could proceed under the alternative limitation period provided by Section 14A of the Limitation Act 1980.
2. Whether the Plaintiff had the requisite knowledge of the material facts about the damage and knowledge of attribution to the Defendants' negligence within the relevant limitation periods.
3. The interpretation and application of Section 14A regarding the starting date for the limitation period in negligence claims where relevant facts were not known at the date of cause of action accrual.

Arguments of the Parties

Defendant's Arguments

• The Plaintiff had the necessary knowledge of both the material facts and attribution to the Defendants' negligence by the date of the settlement meeting in December 2009, thus barring the claim under the primary limitation period.
• Alternatively, the Plaintiff had such knowledge by mid to late 2016, meaning the three-year limitation period under Section 14A expired before the claim was issued in December 2019.
• The Defendants relied on advice given by counsel at the settlement meeting, asserting that counsel's duty was to represent the Plaintiff at the meeting and not to advise on provisional damages or obtain additional expert evidence.
• The Plaintiff knew of ongoing symptoms and risk of future deterioration, and was aware that the settlement was full and final, including the risk of undervaluation, negating any claim that relevant facts were unknown.
• The Plaintiff should have sought further legal advice upon receiving the settlement advice but did not, and there was no reason to doubt the competent advice received from solicitors and counsel.
• Authorities cited by the Plaintiff were distinguished as not applicable to the facts of this case.

Appellant's (Plaintiff's) Arguments

• The Plaintiff did not have knowledge of the essential material facts about the damage relating to the absence of a claim for provisional damages at the time of settlement in 2009.
• The Plaintiff was unaware of the possibility of provisional damages and that the Defendants failed to advise on this, which constituted the essential material fact of damage.
• The Plaintiff only acquired knowledge of attribution—that the damage was caused by the Defendants' flawed advice or omission—after January 2017, when amputation was first contemplated and new legal advice was sought.
• The judge correctly applied Section 14A and relevant case law, finding that the limitation period began no earlier than January 2017, within three years of the claim issuance.
• It was unreasonable to expect the Plaintiff to seek further legal opinions given the competent advice already received.

Table of Precedents Cited

Court's Reasoning and Analysis

The court conducted a detailed analysis of Section 14A of the Limitation Act 1980, focusing on the dual requirements of knowledge of material facts and knowledge of attribution. It accepted the judge's factual findings as uncontroversial, including the Plaintiff's medical history and treatment timeline, and the circumstances of the settlement.

The court emphasized that the Plaintiff did not have knowledge of the essential material facts relating to the absence of a claim for provisional damages at the time of settlement in 2009. Although the Plaintiff knew of ongoing symptoms and the risk of future deterioration, he was unaware of the possibility of provisional damages or that the Defendants had failed to advise on them. This absence constituted the relevant damage of which he lacked knowledge.

Regarding knowledge of attribution, the court accepted that the Plaintiff only acquired sufficient knowledge after January 2017, when amputation was first contemplated and he obtained new legal advice indicating the prior advice was flawed. The court rejected the Defendant's argument that knowledge of attribution arose earlier, finding no reason for the Plaintiff to suspect flawed advice in 2009 or 2016, as his symptoms were consistent with warnings previously given.

The court applied and interpreted leading authorities, notably Haward v Fawcetts, to clarify that limitation periods under Section 14A begin only when the claimant has reason to investigate the possibility of negligence, not merely when symptoms or damage become apparent. It also rejected the notion that the Plaintiff should have sought multiple legal opinions, considering this an unreasonable burden.

The court found the judge's application of legal principles to the facts was correct and that the limitation period commenced no earlier than January 2017, within three years of the claim being issued.

Holding and Implications

The court DISMISSED the Defendant's appeal, affirming the lower court's decision that the Plaintiff's claim was not statute barred under Section 14A of the Limitation Act 1980.

This decision means that the Plaintiff's negligence claim against the Defendant is permitted to proceed despite being issued outside the primary six-year limitation period, as the alternative three-year period under Section 14A applies from the date the Plaintiff acquired the necessary knowledge in January 2017. No new precedent was established; the ruling applies the existing legal framework to the facts of this case.