[2007] EWHC 2982 (QB)

The claimant sued the barrister and solicitor who had represented him at his trial in 1997 for grievous bodily harm and threats to kill. He was convicted and sentenced to five years imprisonment. The convictions were set aside in 1999 because there had been no good character direction in the summing up and the Court of Appeal commented that the defendant barrister should have introduced the claimant’s good character during the course of the trial. The claimant began the present proceedings against his lawyers in 2006 in which he alleged that his mental health problems had been caused by the defendants’ negligence at his trial.

In order to bring the action, which was a personal injury claim, outside the three year limitation period provided for by s11 Limitation Act 1980, the claimant needed the court to extend time under s33 of the Act. The judge below held that the claimant had requisite knowledge of his personal injury in 1998 and that the limitation period had accordingly expired in 2001. He exercised his discretion to extend the limitation period in relation to the claim against the barrister on the ground that whilst criticisms of the second defendant solicitor’s preparation for trial would require a close examination of documentation which was no longer available, this was not the case as against Mr Nightingale since liability depended essentially on his failure to put in the claimant’s good character. He also commented that, if, as Mr Nightingale claimed, he had no recollection of the trial and no papers, and had not notified his insurers, that was his problem.

The Court of Appeal reversed the decision. It was not sufficient reason to deprive a defendant of a limitation defence that he was not prejudiced, or that, if he was, it was his own fault. Other factors were relevant to the exercise of discretion such as what might have happened had good character had been referred to – it might have made no difference to the outcome or it might have led the prosecution to refer to other charges which were not pursued at the trial. There was no reasonable excuse or explanation for the claimant’s delay and the extension of time should not be granted.

Comment: this case offers a reminder that the limitation period for professional negligence claims, although usually 6 years, will be 3 years and subject to a discretion to extend the period, where the negligence in question is alleged to have caused the claimant’s personal injury, usually damage to his mental health. This arose last year in Whitehead v Searle and Hibbert Pownall & Newton where the defendant solicitors were held liable for their failure to expedite a wrongful birth claim but the claim that the claimant’s mother’s suicide was caused by their negligence was rejected. Such cases should be distinguished from professional negligence claims which concern a personal injury action. In such a case, the usual 6 year limitation period will apply (Hopkins v MacKenzie).