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legal update

By Matthew Liston

Aug 6th, 2020

Damage already done in time-barred negligence claim against solicitors

In Holt v Holley & Steer Solicitors (a firm) (2020), the Court of Appeal determined when the claimant’s cause of action accrued in tort for the purposes of her professional negligence claim. 

What happened?

The claimant instructed solicitors to act for her in relation to financial relief proceedings in connection with her divorce. The claimant alleged that her solicitors failed to obtain permission to adduce updated expert valuations of her assets, resulting in her being awarded less by the court than she otherwise would have done. The claimant valued her negligence claim at £125,000.

There was a final hearing of the financial relief proceedings in March 2012, but judgment was not handed down until May 2012. The claimant issued proceedings against her former solicitors in April 2018.

The claim for breach of retainer was time barred because proceedings were issued more than 6 years after the alleged breach of contract. However, the 6-year limitation period in negligence does not begin to run until damage is suffered. 

The Court of Appeal held that the claimant suffered a measurable loss at the point when she lost the ability to adduce more favourable expert valuation evidence.  This occurred either at an earlier hearing in October 2011, or when her husband’s solicitors made it clear, in January 2012, that they would object to her adducing any new expert evidence. The claimant suffered loss by March 2012 at the absolute latest and so her claim was time barred. 

Comment

Whilst it will depend on how each claim is pleaded, this is a useful decision for solicitors and their insurers. Unwary claimant professional negligence solicitors may continue to miss limitation deadlines if they fail to identify when their client potentially first suffered damage. There is scope for this decision to be applied to other claims where solicitors negligently fail to obtain the court’s permission to adduce evidence that is supportive of their client’s case, causing them to suffer a loss of opportunity at that point.

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