The importance of advice as to provisional damages – professional negligence claim allowed to proceed 10 years after settlement of the underlying claim.

Witcomb v (1) J. Keith Park Solicitors [2023] EWCA Civ 326

This case contains a stark reminder of the importance of advising as to provisional damages, and that the passage of time will not necessarily pose a bar to potential claimants. In so doing, it also encompasses a useful analysis of the application of Section 14A of the Limitation Act 1980.

The Claimant brought proceedings in negligence out of time against a firm of solicitors and barrister who had acted for him in relation to a personal injury claim following a road traffic accident in 2002. Liability was admitted. At a settlement meeting in 2009, it was agreed that the Claimant would receive £150,000 in full and final settlement of his claim, but he received no advice about provisional damages. The Claimant’s condition deteriorated such that, in 2017, he was advised that he would need a below-knee amputation. He contacted the Defendant to ask if he could re-open his claim and was told he could not. Proceedings were issued against the Defendant in 2019.

Whether the claim was statute-barred was tried as a preliminary issue, the judge finding for the Claimant. Mr Justice Bourne had found that the Claimant had knowledge of the material facts in mid-2016 and of attribution at some stage after January 2017.

The appeal was brought on two grounds – 1) the judge should have concluded that the Claimant acquired the requisite knowledge on the date settlement was reached; and 2) having determined that the Claimant had knowledge which satisfied the first limb of s14A, the judge erred in finding that the second limb was not satisfied until on or after January 2017.

On appeal, Lady Justice Thirwall considered that there was “no reason in 2016, any more than there was in 2009, for him to think that he might have been wrongly advised by his lawyers about the nature of the settlement” and that whilst he might have thought “there were problems with the legal system which did not, as he had been told, allow for a further application for damages, but it did not follow that there might be problems with the advice he had been given”.

Lady Justice Thirwall also did not consider there to be a difficulty with Mr Justice Bourne not having identified a precise date upon which the Claimant had knowledge within s14A, and that it was sufficient that he had found that knowledge “had been acquired at a point no more than three years before the issue of proceedings”, which was a date no earlier than 17th January 2017, on the facts he had found. Accordingly, the Court of Appeal dismissed the First Defendant’s appeal (the Second Defendant’s appeal having been compromised before the hearing).

The full judgment can be accessed here.

A party “attends” a final hearing by virtue of the attendance of their legal representative

Owen v Black Horse Ltd [2023] EWCA Civ 325 

The Claimant brought a claim relating to credit and payment protection policy. The matter was allocated to the small claims track. The Claimant did not attend the final hearing, but his solicitor did. The judge struck out the claim on the grounds that the Claimant failed to attend, and the attendance of the Claimant’s legal representative was not sufficient. The finding had been upheld on appeal to the Circuit Judge.

The Claimant successfully appealed to the Court of Appeal. Lady Justice Laing, with whom Lord Justice Edis (a former member of Atlantic Chambers) and Lord Justice Baker agreed, gave the lead judgment.

The Court of Appeal considered the interplay between CPR 27.9 and 27.11:

• CPR 27.9(2) provides that if a claimant does not attend the final hearing, and does not give the relevant notice required (including written notice to the court and other party 7 days before that he will not attend – see CPR 27.9(1)), the court may strike out the claim.
• CPR 27.11(1) provides that a party who a) was neither present nor represented at the hearing of the claim; and b) has not given the required notice, may apply for an order that a judgment under this part be set aside and the claim reheard.

In so doing, the court also considered CPR 39.3 and agreed with Mr Justice Gross’ (as he then was) interpretation that “a party ‘attended’ a trial if he was represented at the hearing”. Lady Justice Laing considered that there was no good reason why similar provisions in the CPR, with apparently similar functions, which apply to different tracks, ought to be treated differently.

“The essential point is that a party to litigation is entitled to represent himself, or to be represented by a legal representative or representatives. Part 27 does not expressly impinge on that right.”

The full judgment can be accessed here.

For any other enquiries, or to discuss instructing the Civil Team at Atlantic Chambers, please contact clerks@atlanticchambers.co.uk.