Section 14A: Equity aids the vigilant!
The recent Court of Appeal case of Chinnock –v- Veale Wasbrough  EWCA Civ 441 is a stark reminder to potential claimants to seek a second opinion if they are dissatisfied with their legal advice, or risk the consequences.
The Claimant appealed against a High Court decision dismissing her professional negligence claim against her former solicitors for alleged negligent advice on her clinical negligence claim. The Claimant alleged that her solicitors had negligently advised her to abandon a clinical negligence claim, but the Court at first instance found that the solicitors had not been negligent in their advice or conduct of the matter. That finding was upheld on appeal.
The Claimant instructed the Defendant to advise on a potential claim against the hospital who monitored her during her pregnancy. She claimed that the hospital knew that there was a risk that her daughter would be born with birth defects, but did not warn her. After seeking advice from Counsel, the Defendant advised that the claim against the NHS Trust could not succeed on liability, and warned that if the Claimant pursued the claim, she would be exposed to a high risk of having to pay the NHS Trust's costs. As such, the Claimant's legal aid funding would have to be withdrawn. The Defendant advised the Claimant that she could take alternative legal advice if she was dissatisfied.
Although the Claimant described herself as having been dumbfounded and deeply unhappy with the advice, but she did not seek advice from another solicitor until 8 years later, when her husband sought advice from the solicitor acting for him in their divorce proceedings.
The primary limitation period expired in 2007. The Claimant did not issue proceedings until 2010. Accordingly, the Claimant relied on section 14A Limitation Act 1980, which give claimants an additional 3 years from the date that they had the knowledge required to bring an action and the right to do so. Section 14A(6) explains that the knowledge required for bringing an action in damages means, broadly, knowledge of the material facts about the damage and that the damage was attributable to the defendant's act or omission. There is no need for the claimant to know that the acts or omissions were negligent as a matter of law.
The Claimant said that she did not have the requisite knowledge until she was advised, 8 years later, that the Defendant's advice might have been wrong.
The judge at first instance found that the Claimant had actual knowledge for the purposes of s14A in 2001.
Lord Justice Jackson, hearing the appeal, came to the same conclusion, but his analysis was slightly different. He found that it was unreasonable of the Claimant to have waited more than 6 years before taking advice regarding a potential claim against the Defendant. Whilst she could not have been expected to do so in the four week period before the claim form expired, she ought to have done so well before the primary limitation period against the Defendant expired.
As such, the Claimant had constructive knowledge of the fact that the advice she had received might be wrong by virtue of s14A(10), which states that a person's knowledge includes knowledge which he might reasonably have been expected to acquire from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek. In other words, the Claimant's knowledge is deemed to include those matters which she would have known, had she taken advice from another solicitor.
Lord Justice Jackson found that the case was conceptually similar to Forbes –v- Wandsworth Health Authority  QB 402, in which Lord Justice Stuart-Smith said:
“The real question is whether it was reasonable for him to seek that advice. If it was, he took no steps at all to do so… I do not think that the person who [decides not to seek advice] 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.”
Section 14A is fertile ground for disputes between the parties in professional negligence claims, particularly where the claimant was dissatisfied at the time. Although not new law, this will be a useful authority for defendant's solicitors in arguing that claims brought with reliance on s14A are time-barred. It is also a reminder to claimants of the Court's attitude towards delay, and a modern iteration of the old maxim "equity aids the vigilant, not those who sleep on their rights".