Court of Appeal considers "knowledge" under the Limitation Act 1980

http://www.bailii.org/ew/cases/EWCA/Civ/2015/441.html

In 2001, the claimant was advised that she did not have a viable claim against the NHS. After receiving different advice in 2009 she commenced proceedings against her former solicitors for negligence in 2010. At first instance, the judge held that her claim was time-barred and she appealed against that finding.

Section 14A of the Limitation Act 1980 provides for a special time limit where the facts relevant to a cause of action are not known at the date of accrual. A claimant will have 3 years from the date he/she has the knowledge required to bring an action for damages which in turn means knowledge both (a) of material facts about the damage and (b) of the other facts relevant to the action (including that the damage was attributable in whole or in part to the act which is alleged to constitute negligence). However, the claimant need not know that the acts/omissions did or did not, as a matter of law involve negligence (section 14A(9)).

The Court of Appeal unanimously agreed that the claim was time-barred but for differing reasons.

Jackson LJ and Longmore LJ held that the negligence referred to in section 14A(9) was that of the defendant and not a third party (here, the NHS). Accordingly, time started to run as soon as she knew, or ought to have known, that she had lost a viable cause of action (even if she did not at that point know whether her solicitors' advice was negligent). Accordingly she had constructive, but not actual, knowledge in 2001 (ie knowledge which she might reasonably be expected to have acquired from the facts observable by her (with the help of appropriate expert advice if necessary)): "[The claimant] was deeply unhappy with the legal advice which she received in 2001… She therefore had a choice. She could either consult other lawyers or she could let matters rest. … I do not think that it was open to [the claimant] to abstain from further inquiries for more than six years (in this case eight years) and then to seek legal advice".

However, Roth J agreed with the judge at first instance that the claimant had had actual knowledge in 2001 (although he also accepted that there was constructive knowledge at that time too), even if she hadn't known then that the NHS Trust was negligent: "In my view, that further knowledge...has to be disregarded by reason of section 14A(9). The words of that subsection refer to "any acts or omissions", and I do not see that they can be confined to acts or omissions of the defendants".