The Court of Appeal's recent decision in Chinnock v Veale Wasbrough and another revisits the complex and much discussed question of the date of knowledge and what facts must be known under section 14A of the Limitation Act. The decision attempts to provide further clarification of this complicated and difficult limitation issue.
The appellant, Ms Chinnock and her husband, Mr Schumann, married in 1990. In 1997, Ms Chinnock became pregnant. Anxious to ensure they did not have a disabled child, Ms Chinnock underwent both the usual ante-natal scans including a nuchal scan, the latter of which produced a high risk of abnormality, and they were advised by the consultant to have additional tests. The couple opted for a CVS test the results of which were clear. The couple were reassured and the pregnancy continued. Scans carried out during the pregnancy demonstrated concerns about the growth rate of the baby but there was no evidence of any abnormality. The parents were given no information as to any concerns about the baby.
On 21 April 1998, Ms Chinnock gave birth to a girl, Bethany. Bethany suffered from multiple congenital abnormalities, spending much of her life in hospital, and died on 14 December 2009, aged 11.
Clinical negligence proceedings
The Claimant sought advice from solicitors, Veale Wasbrough, and, on 12 April 2001, issued a claim against the NHS Trust for wrongful birth, with the benefit of legal aid. Veale Wasbrough instructed counsel, Ms Rea, to advise. It transpired that Ms Chinnock and Mr Schumann were advised only in general terms of the initial risk by their consultant obstetrician. Further, despite concerns being raised by the consultant radiologist that he strongly suspected there was "some major abnormality" with the baby, this was never passed on to the parents.
After investigating the claim with the benefit of expert input, counsel's view, stated in conference, was that there was no actual evidence of negligence (as the medical professionals had acted within the range of the reasonable medical professionals) and advised that legal aid should be withdrawn. Veale Wasbrough supported counsel's advice. Ms Chinnock and Mr Schuman were extremely surprised and disappointed, but accepted the advice given and allowed the claim to lapse.
Eight years later, Ms Chinnock and Mr Schumann divorced. Mr Schuman's divorce solicitor, upon hearing of the circumstances surrounding Bethany's birth, referred the matter to its clinical negligence team who concluded that Ms Chinnock and Mr Schumann had received bad advice.
Professional negligence proceedings
On 8 July 2010, Ms Chinnock and Mr Schuman issued proceedings in the High Court against Veale Wasbrough and later, Ms Rea, for professional negligence. Both defendants denied that they had been negligent and pleaded that the claims were statute barred under the Limitation Act 1980. The two actions were consolidated, with the issue of limitation and liability to be determined as preliminary issues. The judge held that the claim failed on liability, but that in any event, the claim was out of time based on a finding that the Claimants had actual knowledge of the relevant facts more than three years prior to issuing proceedings. Ms Chinnock appealed to the Court of Appeal.
On 7 May 2015, the Court of Appeal handed down its judgment, dismissing the appeal on both liability and limitation. Whilst an interesting review of the relevant test for liability in clinical negligence as at 2001, it is more interesting in its analysis of the law in respect of section 14A.
For the sake of examining limitation, the Court made two assumptions:
- that the advice given by the lawyers to Ms Chinnock was wrong as she did have a viable case as against the Trust; and
- that the advice given was negligent.
Primary limitation expired in 2007 and so, Ms Chinnock (who, for reasons unimportant to this article was the only viable claimant) was forced to rely on s14A of the Limitation Act. The High Court reasoned that Ms Chinnock knew all the material facts in 2001 the identity of Veale Wasbrough and Ms Rea and the fact that she was not pursuing her claim against the NHS Trust was because of the lawyers' advice. She did not know the advice was negligent, but pursuant to s14A(9) "knowledge that any acts or omissions did or did not, as a matter of law, involve negligence is irrelevant for the purposes of[establishing knowledge]". On that basis, the High Court concluded Ms Chinnock's claim was statute barred.
Lord Justice Jackson however considered the facts further. He relied on three of the many cases that have been decided on this difficult question: Forbes v Wandsworth Health Authority  QB 402; Oakes v Hopcroft  Lloyd's Rep PN 946 and Haward v Fawcetts  UKHL 9;  1 WLR 682.
He accepted entirely that, at the point when Ms Chinnock was advised not to pursue the case by the lawyers, she was unhappy and surprised by the decision. However she chose to take no further steps and seek no further advice (as per the position in Forbes).
He identified the following key factors:
- It did not matter that Ms Chinnock did not know that the advice by the lawyers was negligent- section 14A(9)
- She did however need to know that the advice given by the lawyers was wrong in respect of her claim against the Trust
- Given her concerns about the advice given to her as to her right to sue the Trust, she had a choice – she could have taken further advice or she could do nothing
- It was not open for her to choose to do nothing and then seek legal advice some 8 years later and seek to rely on section 14A
- He concluded that she did not have actual knowledge but rather that she had constructive knowledge in accordance with section 14A (10).
Jackson referred to Lord Justice Stuart-Smith's judgment in Forbes:
"it would be perfectly reasonable to take a second opinion. And I do not think that the person who adopts the first alternative can necessarily be said to be acting unreasonably. But he is in effect making a choice, either consciously by deciding to do nothing, or unconsciously by in fact doing nothing. Can a person who has effectively made this choice, many years later, and without any alteration of circumstances, change his mind and then seek advice which reveals that all along he had a claim? I think not."
Ms Chinnock was deeply unhappy with the legal advice she received in 2001, describing herself in her evidence as "dumbfounded". Despite that concern, she chose not to take a second opinion and in doing so she effectively forfeited her claim. It was this choice (conscious in Ms Chinnock's case) which Jackson focussed on.
There was no change of circumstance, no new piece of information about the underlying clinical negligence claim that came to light in the intervening period. The only difference in 2009 was that Ms Chinnock was advised that the lawyers had been negligent. However the Act makes it clear that that piece of information was not one that Ms Chinnock needed in order to have knowledge in accordance with the Act.
There can be no doubt that this interpretation of s14A, consistent with cases that have gone before, does seem somewhat unfair to individuals particularly in the context of a professional negligence claim. If an individual seeks professional advice and is advised that they have no claim, surely they should not be required to get a second opinion simply to reiterate that the initial advice was right?
Relying on Forbes Jackson was confident that this choice was all that was needed. In fact Ms Chinnock made his decision even easier because she clearly had concerns about what she was advised and was surprised by that advice. In those circumstances it is easier to see that she made a conscious choice not to obtain a second opinion. It would also appear fair given that choice that she should not be able to change her mind several years later and seek to bring a claim against the lawyers out of time.
The concern must be where the choice is unconscious and the potential claimant is still prevented from bringing a claim where it discovers that it had a claim against its advisors after the 6 year limitation period has expired.
Section 14A of the Limitation Act is notorious for its harshness and conflicting sections. It has always been difficult to decipher and interpret. Case law continues to provide guidance but each case has to be carefully examined on its facts.
Whilst this latest decision may give comfort to professionals as it continues to make it clear that it can be difficult for individuals to take advantage of the extended limitation period, it is clear that the section itself continues to cause uncertainty. The Court of Appeal Judges all agreed in this case that the claim was time barred but they did not all agree on the question of constructive knowledge (which definitely appears to have been the most understandable decision) – Lord Justice Roth felt that the Judge at first instance was correct and that Ms Chinnock had actual knowledge.
The case bears reading just to consider the difference in approach and the application of this complex statute to the detailed facts of this case. It makes it clear that attempts by potential claimants to rely on section 14A should be very closely scrutinised before being accepted.