In the case of Susan Berney v Thomas Saul (t/a Thomas Saul & Co) [2013] EWCA Civ 640, the Court of Appeal overturned the decision of the County Court and held that the claimant’s cause of action in the professional negligence claim against her former solicitor had accrued from the day that her original claim was settled, and as such was not time-barred.

The facts

The claimant, Ms Berney, had instructed the defendant, Mr Saul, to represent her in a personal negligence claim following a road traffic accident in 1999. The driver’s insurers had accepted liability. In 2002 Mr Saul commenced proceedings on behalf of Ms Berney but named the wrong defendant on the claim form. Mr Saul then amended the claim form but did so outside the time limit. He also failed to serve proper particulars of claim. As a result of the delay in the proceedings, negotiations became stalled and the claim looked likely to be struck out. Ms Berney therefore felt that she had no choice but to accept the defendant insurer’s settlement offer of £25,000. Ms Berney subsequently issued a claim against her former solicitor for negligence, on the grounds that she would have received far more damages had her claim been handled correctly.

HHJ Simpkiss, sitting in the Brighton County Court, upheld the first instance decision of DJ Liston that the claim should be struck out on the ground that it was time-barred under the Limitation Act 1980 (“the Act”).Ms Berney appealed.

Held on appeal

Appeal allowed. Under section 2 of the Limitation Act 1980, tort actions cannot be brought more than six years from the date that the cause of action accrued. The cause of action accrued not when the culpable conduct occurred, but when the claimant first sustained damage. Essentially this comes down to when Ms Berney first sustained damage as a result of Mr Saul’s professional negligence.The Court emphasised that although this is essentially a question of fact, the following principles are also relevant:

  1. actual damage was any detriment, liability or loss capable of assessment in money terms, and included liabilities which might arise on a contingency; and
  2. a useful formulation was to consider "when was the claimant worse off financially by reason of a breach of the duty of care than he would otherwise have been?"

The court held that, although there was no way of knowing the outcome of the case had it not settled, Ms Berney had a cast-iron claim for damages for personal injury and loss where liability had been admitted. The loss (and consequently her cause of action) had occurred when she was forced to settle the case. Ms Berney’s negligence claim was therefore within the 6 year time limit set out in the Act.