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Breaching limitation

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By James Hazlett & Dominic Exton


Published 25 March 2022


Page v Kidd & Spoor Harper Solicitors

In November 2021 there was further, welcome guidance from the Court on the issue of alleged negligence in the conduct of claims for services (everyday tasks that could no longer be performed due to injury) under the Government’s Vibration White Finger Compensation Scheme, and the question of continuing breach for limitation purposes.

In 2015, the Court of Appeal in Procter v Raleys Solicitors concluded that whilst much of the VWF scheme administration may have been standardised, it remained incumbent upon the solicitor to have ensured that its client understood the advice given, including to have spoken to the client directly if necessary. In Page v Kidd & Spoor Harper Solicitors, the Claimant unsuccessfully sought to apply Procter to salvage an otherwise statute-barred negligence claim.

In Page, on 11 March 2003 the Claimant received a full and final offer of £20,117 under the VWF scheme, which had clearly not included anything for services. On 21 March 2003, the Claimant signed a form authorising the Defendant to accept that offer, which was returned to the administrators on 31 March 2003, concluding the matter. Nearly 15 years later the Claimant brought a negligence action against the Defendant for allegedly failing to advise him not to accept the offer and/or to bring a services claim. On 28 March 2018 the Claimant and Defendant entered into a Standstill, but specifically preserving any limitation defences which had already arisen.

Proceedings were issued and the Defendant applied for strike-out and/or summary judgment, on the basis of a clear limitation defence; the alleged negligence (advice or otherwise) must have taken place on or before 21 March 2003, more than 15 years earlier. The Claimant was said to be out of time, even under the long-stop provision of s.14B of the Limitation Act. In response, the Claimant argued that the Defendant was guilty of a continuing breach of duty, which did not end until the offer was accepted on 31 March 2003, being the final act of negligence. If correct, the Standstill would have preserved the claim.

The Claimant failed at both the application and on appeal. The Court rejected the suggestion that there was an ongoing duty under Procter to ensure that the client continued to properly understand the advice given, especially where, as here, the Claimant had provided clear written instructions, with nothing to indicate any lack of comprehension or the need for a conversation. Further, the Court rejected arguments that there was any alternative formulation of the claim which would mean that the cause of action had not accrued until the end of March 2003; there was simply one cause of action which accrued by no later than 21 March 2003. The negligence claim was therefore out of time.

There are two important points from the decision. The first is to clarify the nature and extent of any alleged ongoing duty to advise and to ensure that advice was understood. Here there were no grounds to suspect that the Claimant had required further clarification, hence no reason to argue that the cause of action accrued any later than the date the advice was given and acted upon by the Claimant. Secondly, perhaps more importantly, it is another example from a risk management perspective of the dangers of delaying until the last possible moment before giving thought to protecting limitation. A viable negligence claim was defeated by the Defendant’s potentially only sustainable, technical line of defence, without even having to consider the merits of the allegations.