Lee Witcomb v J Keith Park Solicitors
[2023] EWCA Civ 326
Ellen Kay v Martineau Johnson (A Firm)
1 October 2024
[2024] EWHC 2451 (Ch)
High Court
A woman sued her former solicitors for bad advice given during her divorce. The court said she knew or should have known about the problem years before she sued, so her claim was too late. The court also didn't believe the solicitors deliberately hid anything.
Key Facts
- •Professional negligence claim against Martineau Johnson (the Firm) by Ellen Kay (Ms Kay) concerning advice received in 2008 regarding a divorce settlement.
- •The claim, issued in March 2023, relates to a settlement reached in April 2008, which included a 'clean break' provision.
- •Ms Kay alleges the Firm's advice was negligent, leading to financial losses due to the undisclosed wealth of her ex-husband.
- •The Firm denies negligence, causation, and loss, arguing the advice was reasonable based on disclosed information.
- •The preliminary issue concerns whether the claim is time-barred under the Limitation Act 1980.
- •Ms Kay relies on sections 14A and 32(1)(b) of the Limitation Act 1980 to argue the claim is not time-barred.
- •Ms Kay contends that she only realised the Firm's alleged negligence much later than 2008 and that the Firm concealed facts relevant to her right of action.
- •The Firm argues Ms Kay had or should have had the necessary knowledge to bring a claim well within the limitation period.
Legal Principles
Section 14A of the Limitation Act 1980 introduces a special time limit for negligence claims where relevant facts are not known at the accrual date.
Limitation Act 1980, Section 14A
Trigger knowledge under section 14A(5) requires knowledge of material facts about the damage and attribution of damage to the defendant's act or omission.
Limitation Act 1980, Section 14A(5), Witcomb v Keith Park Solicitors [2023] EWCA Civ 326, Haward v Fawcetts [2006] UKHL 9
Constructive knowledge under section 14A(10) attributes knowledge a claimant might reasonably be expected to acquire, even without actual knowledge. The objective standard is informed by the claimant's position, but not characteristics peculiar to them.
Limitation Act 1980, Section 14A(10), Gravgaard v Aldridge & Brownlee [2004] EWCA Civ 1529, Gosden v Halliwell Landau [2020] EWCA Civ 42
Section 32(1)(b) of the Limitation Act 1980 postpones the limitation period if a fact relevant to the plaintiff's right of action has been deliberately concealed by the defendant.
Limitation Act 1980, Section 32(1)(b), Potter v Canada Square Operations Limited [2023] UKSC 41
Deliberate concealment under section 32(1)(b) requires proof that the defendant took active steps to hide the relevant fact or decided to withhold information with the intention of concealing it.
Potter v Canada Square Operations Limited [2023] UKSC 41
Outcomes
The claim is time-barred.
The judge found Ms Kay had actual or constructive trigger knowledge under section 14A of the Limitation Act 1980 by at least the end of 2009, or alternatively by the end of 2018. The judge also found no evidence of deliberate concealment by the Firm under section 32(1)(b).