7 June 2022 | Case Study | Article by Abigail Flanagan
In Witcomb v J Keith Park Solicitors (a firm) & Anor the court has allowed the claimant the right to pursue his professional negligence claim against his previous solicitor for under settlement of his personal injury claim in 2009, following amputation 8 years later.
The claimant was in a road traffic accident in 2002 causing serious injuries including broken bones in his right leg and foot. He instructed solicitors to pursue a personal injury claim against the insurers of the driver. The driver admitted liability in 2009 and the claim was settled for £150,000.
However, the extent of the claimant’s injuries was misjudged and unfortunately the claimant’s symptoms deteriorated in 2016. Eventually, in January 2017, the claimant was introduced to the possibility of amputation and in July 2017 his right leg beneath the knee was amputated.
A professional negligence claim was initiated in December 2019 where it was alleged that the former solicitors caused the claimant to agree a settlement which did not make sufficient provision for the risk of deterioration. The court found that had his solicitor obtained a medico-legal report, this would have highlighted that the case was suitable for provisional damages.
The professional negligence claim was initially defended on the basis that the claim was outside of limitation given the claimant had the necessary knowledge either upon settlement in 2009 or as early as 2016 when his symptoms worsened.
the court, in dealing with this preliminary issue, considered the meaning of section 14A of the 1980 Limitation Act and concluded that where the essence of the allegation of negligence is the giving of wrong advice, time will not start to run under section 14A until a claimant has some reason to consider that the advice may have been wrong.
This section permits the limitation period to be extended by three years from the date when the claimant knew or ought to have known:
- The material facts about the loss suffered.
- The identity of the defendant.
- This cause of action (that is, that the loss was caused by the negligence).
It was held that it was not until the first mention of amputation in 2017 being a ‘momentous development’ that led the claimant to seek new legal advice. In doing so he discovered that he could have sought provisional damages upon settlement given the nature of his injuries and the likelihood of deterioration. Therefore, this was considered the date in which the claimant had the knowledge that damage was attributable to his solicitors’ alleged negligence. The preliminary issue of limitation was therefore resolved in the claimant’s favour and dismissed, and he was allowed to bring his claim.
There are two important factors from this case to take away:
- The importance of obtaining expert evidence to thoroughly understand the long term position prior to negotiating settlement, specifically in personal injury claims where symptoms can change overtime; and
- The importance of establishing the time at which the claimant acquired the relevant knowledge that a claim exists in order to accurately calculate the limitation period.