Berney v Saul (t/a Thomas Saul & Co (Solicitors)) [2013] EWCA Civ 640

[2013] EWCA Civ 640Case No B2/2012/2078
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BRIGHTON COUNTY COURT
His Honour Judge Simpkiss
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday 05 th June 2013
Before
LORD JUSTICE MOSESLORD JUSTICE RIMERLADY JUSTICE GLOSTER, DBE
Between
Susan BerneyAppellantThomas Saul (t/a Thomas Saul & Co (Solicitors))Respondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Ms. Susan Berney appeared in person for in personMs. Jacqueline Simpson (instructed by Parabis Law) for Respondent
Judgment

Introduction

[1]This is an appeal by the claimant, Ms. Susan Berney (“Ms. Berney”), against the decision of HHJ Simpkiss, sitting in the Brighton County Court, dated 24 July 2012. He dismissed Ms. Berney’s appeal against the decision of DJ Liston that her claim in action 1HH0003 (“the Negligence Claim”) against the defendant, Thomas Saul (trading as Thomas Saul & Co, Solicitors) (“the Respondent”) should be struck out on the ground that it is time-barred under the Limitation Act 1980 (“the Act”).[2]Ms. Berney appeared in person before this Court. The Respondent was represented by Ms. Jacqueline Simpson of counsel.

Facts relating to the conduct of Ms. Berney’s personal injury claim against Mrs. Liddell

[3]The Negligence Claim arises out of the Respondent’s conduct of Ms. Berney’s personal injury claim (“the RTA Claim”) against a Mrs. Liddell. The following outline of facts relating to the RTA Claim is taken from Ms. Berney’s points of claim and Ms. Simpson’s chronology. It did not appear to be in dispute and for the purposes of this appeal can be taken to be broadly accurate.[4]On 20 April 1999, Ms. Berney was driving her car; as she slowed down to approach a roundabout, and was almost stationary, Mrs. Liddell drove her car into the back of Ms. Berney’s vehicle. As a result of the injury Ms. Berney sustained physical injuries to her neck and back. She also claims that she suffered other consequences as a result of the accident, including the development of claustrophobia.[5]In May 1999, Ms. Berney instructed the Respondent to act on her behalf in relation to the RTA Claim, on the basis of a conditional fee agreement.[6]On 29 June 1999, the Respondent notified Mrs. Liddell’s insurers of Ms. Berney’s claim and, on 19 August 1999, Mrs. Liddell’s solicitors, Davies Wallis Foyster (“DWF”) wrote a letter on Mrs. Liddell’s behalf confirming that liability would not be in dispute, and asking for full details of Ms. Berney’s claim, together with documentary evidence in support.[7]Thereafter, the claim proceeded at an extremely leisurely pace. Despite repeated requests from DWF for particulars of the damages which Ms. Berney had allegedly suffered, it was only on 12 November 2001 that the Respondent finally sent a list of proposed orthopaedic surgeons to DWF for their consideration; and only, after further prompting by DWF, on 12 April 2002 that the Respondent issued a claim form. The claim form, however, named the wrong defendant, Mr. Liddell, the owner of the vehicle, as the driver, as opposed to Mrs. Liddell, who was in fact the driver at the time of the accident. The claim form stated that damages were “limited to £50,000”. The Particulars of Claim were not attached to the claim form.[8]On 16 April 2002, the Respondent informed DWF that “a protective summons” had been issued against Mr. Liddell, but pointed out that the driver was in fact Mrs. Liddell, and that the Respondent proposed to amend the summons to add her name as a defendant. He also suggested the name of a third consultant orthopaedic surgeon as a proposed joint expert. On the same date, formal notice was also given to Mr. Liddell’s insurer.[9]On 20 April 2002, the three-year limitation period for the RTA Claim expired.[10]On 8 August 2002, a claim form which named the correct defendant was re-served. Service was accepted and no limitation point was taken by DWF or insurers about the fact that the correct defendant had only been joined after the expiry of the three-year limitation period.[11]As at 11 August 2002, which was the last day for service of the Particulars of Claim in accordance with the CPR, no Particulars of Claim had been filed.[12]Over the summer of 2002, the solicitors communicated with each other about obtaining the medical records from the relevant hospital and arranging appropriate medical examinations for Ms. Berney. DWF were authorised by the Respondent, on Ms. Berney’s behalf, to obtain the necessary medical records. The Respondent said that he would like to agree an informal timetable in relation to the case. Mr. Anthony Good (“Mr. Good”), the relevant orthopaedic consultant, indicated that he did not wish to see Ms. Berney until the original medical records from the hospital had been obtained by DWF.[13]On 14 August 2002, DWF wrote to the Respondent enclosing the acknowledgement of service and stating:
“As the medical examination has not proceeded, we believe it is necessary for you to serve Particulars of Claim.”
[14]On 9 October 2002, DWF wrote to the Respondent saying that they intended to instruct a psychiatrist, Dr. Anthony Fry.[15]On 23 October 2002, Ms. Berney had an appointment with Mr. Good, the jointly instructed orthopaedic surgeon. His report of the same date concluded:
“As a result of the incident under discussion, [Ms. Berney] sustained a soft tissue injury to her neck. I believe she recovered from any symptomatology related to the incident by the time she had ended physiotherapy in June 1999. I would not attribute any subsequent symptomatology to the incident under consideration and would note that both neck pain and lower back pain are not uncommon in the public at large.”
[16]Ms. Berney was dissatisfied with Mr. Good’s report, and, as a result, counsel was instructed to draft various questions to be asked of Mr. Good. These were apparently sent to him by the Respondent on 10 December 2002, with a copy to DWF. No response to the questions was received from Mr. Good, despite various chasing letters. There were various communications between the Respondent and DWF during the period from December 2002 to July 2003. These related to: obtaining Mr. Good’s reply to the questions; the instruction of a new medical expert, Mr. Hughes; and the obtaining of further medical records which, despite the earlier authorities given to DWF, were still, apparently, outstanding, and which Mr. Good had stated he needed to have in order to be able to answer the questions drafted by counsel.[17]According to Ms. Berney, she telephoned the Respondent regularly during the period from August 2003 to March 2004. He would say that he had things in hand, and was working hard on the case, which she believed. In January 2004, again according to Ms. Berney, the Respondent stopped answering his telephone altogether. On 8 March 2004, Ms. Berney instructed new solicitors, Martin Ross (“MR”), and, on 5 April 2005, terminated the Respondent’s retainer. Difficulties were encountered by MR in obtaining the relevant files from the Respondent.[18]On 30 April 2004, MR, having received the Respondent’s file, wrote to him in the following terms:
“Further to my letter of yesterday, I have now begun to look at the file. So that I may be sure that I have the whole file, please will you confirm the following to me. 1/ No Particulars of Claim have been served, 2/ No Defence has been served, 3/ No Schedule of Special Damages has been served, 4/ No attempt to follow the Personal Injury Pre-action Protocol, 6/ The last action taken on the file was July 2003, 7/ Although this case was issued in April 2002, there are no Court Orders whatsoever. I look forward to hearing from you as soon as possible.”
[19]On 2 June 2004, MR wrote to Ms. Berney confirming that no Particulars of Claim had been filed in breach of rule 7.4 CPR, and advised her:
“I consider that you are now vulnerable to an application to strike out on the above ground or for general lack of prosecution of the claim. That is more particularly so because the Claim form was filed over two years ago and still no particulars of Claim have been filed. The Court would be likely to take a very dim view of that.”
[20]On 7 June 2004, DWF wrote to MR to state that no Defence had been served. Thereafter, on 16 September 2004, MR wrote to Mr. Good asking him once more to answer counsel’s questions and enclosed Ms. Berney’s hospital records. Thereafter, MR wrote to DWF to inform them that Mr. Good had not replied to the questions on his report.[21]On 1 October 2004, Mr. Good wrote to MR in the following terms:
“I have been through the hospital records you sent me. Unfortunately they do not include the attendance at the Accident and Emergency Department of the Worthing Hospital on 20th April 1999. I wish to see a complete record of that attendance before proceeding further. I suspect these records will need to be obtained directly from the Accident and Emergency Department [“A&E”]. On receipt of those records then I will attempt to answer the questions.”
[22]On 13 October and 2 November 2004, MR wrote to the Records Department of Worthing Hospital to ask for the medical records that included Ms. Berney’s visit to the hospital on the day of the accident. On 3 November 2004, DWF wrote to MR:
“… to enquire whether it is your intention to apply for an extension of time to serve the Particulars of Claim. If so, we suggest that Mr. Good be asked to refrain from answering the question you have raised until the court has adjudicated on this case.”
[23]On 19 November 2004, DWF wrote to MR:
“… we can agree to a period of 4 weeks from today for Mr. Good to respond to the questions and we shall take no procedural point over the additional delay.”
[24]On 19 November 2004, Worthing Hospital wrote to MR to say that they had received his medical records request. On 1 December 2004, MR wrote to the Princess Royal Hospital to ask for Ms. Berney’s medical records. On 8 December 2004, MR wrote to DWF stating that he had still not been sent the medical reports from Worthing Hospital and thus it was now unlikely that Mr. Good would be able to respond to the questions by 17 December 2004. On 8 December 2004, the Princess Royal Hospital wrote to state that they had received MR’s medical records request.[25]On 9 December 2004, MR wrote to the Nuffield Hospital to ask for Ms. Berney’s medical records. On 15 December 2004, DWF wrote to MR to state that any further time to obtain the medical records would not be objected to by DWF, on the same conditions as previously. On 14 January 2005, MR wrote to Worthing Hospital to state that the records sent to him did not contain the information relating to Ms. Berney’s visit to A&E on 20 April 1999, asking that this record be sent to him. On 18 January 2005, MR finally received an illegible fax of the medical records in regard to Ms. Berney’s visit to A&E on 20 April 1999.[26]On 25 January 2005, DWF wrote to MR to ask if he had received the A&E records yet, and to say that, if not, he should make an application to file the Particulars of Claim out of time. On 26 January 2005, MR received legible copies of the medical records of Ms. Berney’s visit to A&E. On 5 February 2005, MR received the three X-rays which were taken on 20 April 1999 at A&E.[27]On 15 February 2005, MR wrote to Mr. Good and sent him the medical reports from Ms. Berney’s visit to A&E, and requested that he respond to the questions posed by counsel.[28]On 18 February 2005, MR instructed another orthopaedic surgeon, Mr. Michael Cass (“Mr. Cass”) to prepare a further medical report. On 24 February 2005, Mr. Good wrote a letter to MR, stating that he had read the medical reports from A&E, and concluded that “… sight of those records does not cause me to alter my opinion or my prognosis”. Mr. Good did not answer any of the questions drafted by counsel.[29]On 14 March 2005, DWF wrote to MR asking for a legible copy of the A&E notes. On 16 March 2005, MR wrote to DWF advising that he had sent his only copy of the medical notes to Mr. Good. On 7 April 2005, DWF wrote to MR asking:
“Please let us know whether you have received Mr. Good’s response to the questions raised. If so, please let us have a copy by return given that he is a joint expert. If you do not have the response then we suggest that you proceed with your application. The procedural position cannot remain as it is and we are concerned that further costs are being concerned [sic] when in all likelihood your client’s claim will be struck out.”
[30]On 14 April 2005, DWF wrote to MR offering to settle the claim, and indicating that they would oppose any application for leave to file the Particulars of Claim out of time. On 26 April 2005, DWF wrote to MR that:
“We require you to issue the application to have the procedural position resolved without further delay.”
[31]On 11 May 2005, Mr. Julian Orr (“Mr Orr”), counsel on behalf of the appellant advised that the application to extend time for filing Particulars of Claim had only a 20% chance of success. He expressed his view as follows:
“My view is that the Claimant does not have reasonable prospects of successfully applying to extend time for service of the claim form and I am of the view that the significant delay, the lack of proper medical explanation for the delay and the valuation of the claim on the medical evidence as it currently stands are all serious factors that mitigate [sic - presumably ‘militate’] against the exercise of discretion in favour of the claimant. My view is that the prospects of success are no higher than 20% that conjoined with the fact that if the Claimant were successful there was a further risk that the claim would be substantially limited or [sic] in my view powerful of [sic] factors against making that application. Unfortunately this is a case where there appears to have been fault on the part of the legal advisors acting on behalf of the Claimant.”
[32]On 10 June 2005, MR wrote to Ms. Berney to inform her that counsel had drafted the Particulars of Claim and the application to file them out of time, but that counsel did not believe that the application would succeed.[33]On 13 June 2005, MR wrote to DWF seeking agreement to the filing of Ms. Berney’s Particulars of Claim out of time. On 15 June 2005, MR wrote to DWF stating that the letter from Mr. Good did not answer counsel’s questions. On the same date MR wrote to similar effect to Mr. Good, asking him to answer the questions.[34]On 27 June 2005, Mr. Cass signed a medical report apparently concluding, contrary to Mr. Good’s opinion, that Ms. Berney’s:
“… overall pattern of current back and neck symptoms were attributable to the accident.”
[35]On 30 June 2005, MR received Mr. Good’s answers to counsel’s questions which had been sent to Mr. Good in November 2002, and sent a copy to DWF.[36]On 13 July 2005, DWF indicated their intention to oppose the application to file the Particulars of Claim out of time, but made a without prejudice offer of £10,000 to settle the case, which Ms. Berney rejected. On 14 July 2005, DWF put this offer into writing, in the following terms:
“We write further to our telephone conversation on 13 July when we advised our insurance clients instructions are to oppose any application for leave to file the Particulars of Claim out of time. We have taken the opportunity review matters generally and formed the opinion that if your client were to succeed with the application then this case could take some time and expense to resolve. Alternatively, if the application should fail then no doubt there will be an Order for your client to pay our costs which, to include the cost of the hearing are likely to be fairly substantial. We have instructions to put forward an offer of £10,000 plus costs on the standard basis to be assessed if not agreed, such offer to be withdrawn should the application proceed i.e. The offer is only available for acceptance as matters currently stand and, for the avoidance of doubt we intend to withdraw the offer as soon as we receive a dated for the hearing of the application. Indeed, you should take the offer as withdrawn as soon as a date is received from the Court.”
[37]On 19 July 2005, apparently in the light of counsel’s advice, Ms. Berney asked MR to try to settle the claim for £20,000 plus costs.[38]On 13 September 2005, MR wrote to Ms. Berney to advise her that it was reasonable for her to accept the offer, although, due to a lack of medical evidence on some points of the claim, counsel was not able to comment on the actual value of the claim.[39]On 29 September 2005, MR wrote to the Respondent informing him of the offer, and required him to say if he objected to Ms. Berney accepting it. On 3 October 2005, DWF increased the offer to £15,000. Ms. Berney refused to accept it.[40]On 11 October 2005, the Respondent wrote saying that he could not say whether or not Mrs. Liddell’s offer was a reasonable one. On 20 October 2005, Mrs. Liddell’s insurer increased their offer to £20,000. On 1 November 2005, the claim was settled for £25,000:
“… plus reasonable costs assessed on the standard basis if not agreed. Such costs are to include those of your predecessors Thomas Saul & Co.”
[41]A report dated 14 December 2005, from a Mr. Jonathan M Valentine, a consultant in anaesthetics and pain management, suggested that it was likely that Ms. Berney sustained musculo-ligamentous and facet joint capsule strains in her neck and low back at the time of impact which, at least to a certain extent, were responsible for her current symptoms.[42]Ms. Berney explained to the Court that the principal reason why she felt that she had no alternative but to accept the settlement was that, whatever risk she faced, of not being permitted to serve Particulars of Claim, and consequently having her action struck out, she could not afford to take it. As she explained, if she had turned down the offer of £25,000 and the application failed, not only would she have lost that sum, but she would also have been exposed to the risk of having to pay Mrs. Liddell’s entire costs of the action, including those of and incidental to the application (which she estimated to be in the region of £30,000-£45,000); and she would certainly have had to pay her own costs of the further medical reports, in the sum of £3,000, and her own costs of the application, in the region of £7,000. It is not necessary for this Court to make any finding of fact in relation to any of these figures, but they appear to be a reasonable estimate of her downside risk of not accepting the settlement. Not surprisingly, on an income which Ms. Berney told us was in the region of £15,000, she felt unable to take that risk.[43]On 28 February 2006, the settlement was confirmed in the terms of a Tomlin order.

Events after the settlement of the RTA Claim

[44]Ms. Berney asserts that in the period that followed, in particular during the period from 30 May 2007 to August 2010, she was extremely ill, and suffered from a very serious deterioration in both her physical and mental health. She says that, because of her condition during that period, she was simply not in a position to face up to what would have been required on her part to bring negligence proceedings against the Respondent, as her former solicitor. For present purposes, it was common ground that this period of inaction on Ms. Berney’s part, so far as concerns the Negligence Claim, was not relevant for any limitation issue which this court has to decide.[45]On 10 January 2011, Ms. Berney, acting in person, issued the Negligence Claim against the Respondent in the Hayward’s Heath County Court. In the Particulars of Claim, the sum claimed was said to be “not exceeding £250,000”. No medical reports were attached. On 8 February 2011, a Defence was filed on behalf of the Respondent, denying liability, causation and loss, but admitting:
“… that the Defendant had failed to file and serve Particulars of Claim within the time permitted by the Court or at all within the currency of its retainer.”
[46]The Defence also alleged that Ms. Berney’s tort claim:
“… became statute-barred by section 2 of [the Act] by, at the latest, 2 June 2010 and well before 10 January 2005, six years prior to the issue of the claim form herein”
And asserting that, as Ms. Berney had herself set out, the claimant’s new solicitors had:
“… advised her on 2 June 2004 that the PI claim was vulnerable to an application to strike it out. She had accordingly suffered damage for the purposes of section 2 by that date.”
[47]Although, as Ms. Berney pointed out to this court, the wording of this paragraph is muddled, what was clear from this Defence was that it was being contended: i) that Ms. Berney had suffered damage at the latest by 2 June 2004; ii) that her cause of action in tort had accrued by that date at the latest; and iii) that, accordingly, by the time she came to issue the Negligence Claim, over six years later, in January 2011, her Negligence Claim against the Respondent was statute-barred.[48]On 21 February 2011, the Respondent’s solicitors issued an application for summary judgment pursuant to CPR Rule 24.2, or, alternatively, that the Particulars of Claim should be struck out pursuant to Rule 3, and the claim dismissed. The grounds were twofold: it was not only alleged that the claim was time barred, but also that Ms. Berney had no prospect of succeeding in her claim, because (it was said) she would never recover more than the £25,000 which she had received under the terms of the settlement. On 22 September 2011, DJ Liston, sitting in the Brighton County Court, dismissed the claim on the dual grounds that it was time-barred, and on the basis that Ms. Berney’s prospects of recovering more than £25,000 were “very limited indeed”. On 9 November 2011, HHJ Simpkiss dismissed Ms. Berney’s application for permission to appeal. However, on 3 February 2012, on a renewed oral application, HHJ Coltart gave permission to appeal on the basis that the District Judge had wrongly approached the matter on the basis of section 14A of the Limitation Act 1980, which was not relevant, and had not considered the issue of primary limitation.[49]The appeal came before HHJ Simpkiss on 24 July 2012. By that stage, and as had been raised in argument before HHJ Coltart, Ms. Berney had put before the court a draft “Amended Particulars of Claim and Schedule of Loss” dated 24 July 2012, and supported by a signed statement of truth claiming some £493,047.52. HHJ Simpkiss gave judgment in favour of the respondent on the sole ground that Ms. Berney’s claim was statute-barred. He stated:
“25. In my judgment the authorities establish quite clearly that the loss in this type of case is suffered at the point where it can be said clearly that some measurable loss by reference to diminution in the value of the claim can be established and the fact that it is difficult to quantify that loss is neither here nor there. At one end of the spectrum you have a case where it is not possible to say there is a risk, although Chadwick LJ says that under the CPR it is unusual to have that situation arise. The cause of action would usually arise when the CPR had been breached which in this case would be when the particulars of claim should have been served but that is in my judgment a little unrealistic. 26. The question that I have to ask is whether there was any real prospect on the part of the Claimant in resisting the defence that by 1st January 2005 this action had suffered a significant and quantifiable diminution in its value as a result of the negligence of the defendant. 27. I am assisted in that by Mr. Orr’s opinion which was dated the 11th May 2005 four months later and nothing happened in the meantime, all we have got is another four months added on to the already lengthy delay. It cannot seriously be suggested that there was not a significant diminution in value the previous January. What Mr. Orr is submitting is that the loss did not occur because for example, the defendants, in the original action might have settled for the full amount. I am unable to accept that submission. 28. In my judgment the loss in this case was suffered long before 1st January 2005 and what is being confused here is the suffering of quantifiable loss within the principles I cited above and the crystallisation of that loss which took place when the settlement was reached. The crystallisation may have made it easier to establish loss, certainly it established the amount that had been recovered, but the loss was suffered when it became clear that there was a serious risk of this action being struck out.”
[50]HHJ Simpkiss did not address the alternate ground upon which DJ Liston had dismissed the claim, namely its limited chances of success. Whether this was because, in light of his conclusion on the limitation point, it was not necessary for him to do so, or because, by the date of the hearing before him, the draft Amended Particulars of Claim and Schedule of Loss supported the claimed quantum, is not clear.[51]Leave to appeal was granted by Sir Richard Buxton on 8 November 2012. In so doing, Sir Richard stated:
“Further scrutiny of the case leads me to conclude that it is arguable that the terms of the settlement of 1 November 2005 reflected the risk of strike out. I reach that conclusion on the basis of (i) the analysis of the case that was accepted by the judge at para 17 of the Judgment; (ii) the terms of DWF’s letter of 14 July 2005; (iii) commonsense. That lays a basis for considering whether the dictum in para 32 of Khan v Falvey (i) is correct; (ii) applies in this case. I would be less than frank if I did not say that it is not entirely clear to me why actual damage is not suffered at the time when a possible future settlement is rendered vulnerable to undervaluation just as it is suffered when the case is rendered vulnerable to strike out; but that difficulty cannot be resolved at the application stage. The point appears to be undecided and if appellable at all is therefore apt for a second appeal. I also take the view that the court should tread cautiously before striking out cases that (apparently) reflect a failure of legal professional service.”

The issue

[52]Section 2 of the Act provides:
“An action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued.”
As was common ground, in cases of tort, the cause of action accrues, “… not when the culpable conduct occurs, but when the plaintiff first sustains damage”: see, for example per Lord Nicholls in Nykredit Plc v Edward Erdman Group Ltd (No 2) [1997] 1 WLR 1627 at 1630.[53]Thus, the issue which has to be determined in the present case is when Ms. Berney first sustained damage. Was it before or after 10 January 2005?

The parties’ respective cases

[54]Ms. Berney’s case is that she first sustained damage when she agreed to settle her RTA claim against Mrs. Liddell on 1 November 2005 and that, accordingly, her claim is not statute-barred since she issued proceedings within six years of that date, namely on 10 January 2011. She contends that the settlement was the relevant “transaction” because, although the Respondent’s negligent non-compliance with the procedural requirements had occurred before that date, it was only on the settlement date itself that her loss materialised in financial terms and she actually suffered loss. Whilst, prior to that date, as she accepted, her claim had been subject to a litigation risk that it might be struck out for procedural non-compliance, or that it was possible that any application to obtain an extension of time for service of the Particulars of Claim might not succeed, it was only on the date of settlement itself that she suffered any actual loss: that loss was the loss of her ability to pursue her claim against Mrs. Liddell in an amount in excess of the settlement sum. Ms. Berney asserted that, with the benefit of hindsight, it was clear that her claim would not in fact have been struck out, and she would have been given permission to serve the Particulars of Claim.[55]The Respondent’s case is that by 9 January 2005, at the latest, (and certainly over six years before the issue of the Negligence Claim), Ms. Berney had suffered damage. Ms. Simpson was not prepared, or able, to pinpoint a precise date when she contended that Ms. Berney’s cause of action had first accrued, but she submitted that Ms. Berney had suffered damage by 9 January 2005 because:
“… (a) it was inevitable by that date that she would have had to issue an application to extend time for service of the Particulars of Claim which would require her to incur costs she would not recover; (b) it was probable by that date that any application to extend time would be resisted and that the action would only be allowed to proceed, if at all, on terms which restricted its scope; (c) there was by that date a real risk of the application failing and of the claim being struck out; (d) the action was worth less that it would otherwise have been worth as a result.”
[56]Ms. Simpson accepted: that throughout the relevant period of delay, the solicitors (DWF on the one hand, and the Respondent and, subsequently, MR on the other) had been communicating with one another about obtaining medical records and reports; that, despite counsel’s advice, it was probable that any application by Ms. Berney for an extension of time within which to file Particulars of Claim in the RTA Claim would have succeeded; and that any objection on Mrs. Liddell’s part to such application, or any attempt by the latter to strike out the claim prior to the settlement date, would have failed. However, Ms. Simpson submitted that, in accordance with the decision of this Court in Price v Price [2003] 3 All ER 911, any such application would only have succeeded on terms that Ms. Berney was restricted to the early quantum of her claim of damages “limited to £50,000”, that she paid her own and Mrs. Liddell’s costs of the application, and that she was limited to the medical evidence available at that date. These, Ms. Simpson submitted, supported her analysis that damage had been suffered at an earlier date than January 2005, when the value of Ms. Berney’s RTA Claim would have been seriously eroded by the delay on the part of the Respondent, and her contingent liability for the costs of any application to remedy the position.

The law

[57]As Lord Nicholls pointed out in Nykredit (supra) at page 1630, in recent years there has been much litigation over the date of accrual of a cause of action in tort in respect of financial loss cause by professional negligence, in the context of limitation arguments.[58]What is clear is that determination of the issue is critically dependent on the circumstances arising in any particular case. Thus, although there appears to be a tension between certain statements made in some cases, when compared to what is said in others, I am not persuaded that it is either necessary, or appropriate, for this Court in this case to reconcile what may be differently nuanced approaches to what, at the end of the day, is essentially a factual question: namely, when did the claimant first suffer actual damage as a result of the professional negligence.[59]The following analysis of certain of the principal authorities merely seeks to identify the general principles which apply to the determination of the issue, rather than to lay down any predicative template as to the manner in which the court should approach its determination.[60]In Forster v Outred [1982] 1 WLR 86 at 94, Stephenson LJ recorded the submission of Mr. Stuart-Smith QC (as he then was), counsel for the successful defendant, in the following terms:
“What is meant by actual damage? Mr. Stuart-Smith says it is any detriment, liability or loss capable of assessment in money terms and it includes liabilities which may arise on a contingency, particularly a contingency over which the plaintiff has not control; things like loss of earning capacity, loss of a chance or bargain, loss of profit, losses incurred from onerous provisions or covenants in leases. They are all illustrations of a kind of loss which is meant by ‘actual’ damage. It was also suggested in argument … that ‘actual’ is really used in contrast to ‘presumed’ or ‘assumed’. Whereas damage is presumed in trespass and libel, it is not presumed in negligence and has to be proved. There has to be some actual damage.”
At page 98, Stephenson LJ accepted this submission. This passage was approved by the House of Lords in Nykredit; see per Lord Nicholls at 1630F[61]In the same case, Lord Hoffmann likewise underlined the fact-dependent nature of the inquiry (in the context of a case where there had been a negligent over-valuation of security for a loan, prior to the loan transaction being entered into). At page 1639B-B, he said:
“There may be cases where it is possible to demonstrate that such loss is suffered immediately upon the loan being made. The lender may be able to show that the rights which he has acquired as lender are worth less in the open market than they would have been if the security had not been overvalued. But I think that this would be difficult to prove in a case in which the lender’s personal covenant still appears good and interest payments are being duly made. On the other hand, loss will easily be demonstrable if the borrower has defaulted, so that the lender’s recovery has become dependent upon the realisation of his security and that security is inadequate. On the other hand, I do not accept Mr. Berry’s submission that no loss can be shown until the security has actually been realised. Relevant loss is suffered when the lender is financially worse off by reason of a breach of the duty of care than he otherwise would have been. This is, I think, in accordance with the decisions of the Court of Appeal in UBAF Ltd v European Banking Corporation [1984] QB 713 and First National Commercial Bank v Humberts [1995] 2 All ER 673.” (Emphasis supplied)
[62]Lord Hoffmann’s formulation of the test by reference to the question: “when is the claimant worse off financially by reason of a breach of the duty of care than he would otherwise have been”, is a simple and attractive one. It necessarily involves a factual inquiry in every case. It may, for example, be that the claimant is worse off financially at the time when, relying on the negligent advice of the defendant, he actually enters into the relevant transaction; see cases such as D W Moore & Co Ltd v Ferrier [1988] 1 WLR 267; alternatively, a claimant may not suffer actual financial loss at the time that the transaction entered is into in reliance upon the defendant’s negligent advice, but only some time later; for example, when the amount which the lender/claimant has paid out under the transaction, plus its carrying costs, exceeds the value of the negligently under-valued security: see such cases as UBAF Ltd v European Banking Corporation [1984] QB 713 and First National Commercial Bank v Humberts [1995] 2 All ER 673.[63]In cases relating to the negligent conduct of litigation by a solicitor, however, attempts have been made in this Court (albeit obiter), and most strikingly in Khan v Falvey [2002] EWCA (Civ) 400, [2002] PNLR 28, to lay down exhaustive predicative criteria to decide the precise moment in the course of negligently conducted litigation at which the defendant has suffered actual financial loss. The three particular cases in question, which were the subject of extensive submission before us are, in chronological[64]In Hopkins v MacKenzie, this Court (Nourse, Mann and Saville LJJ) held that, in circumstances where the plaintiff was suing for the loss of his right to advance a claim in a court of law, and not for an earlier diminution in the value of his claim, it was only on the date of strike-out that he suffered actual financial loss, not on an earlier date when he was potentially likely to lose his cause of action, because he was amenable to strike out, whether as a matter of inevitability or probability. The first instance judge had struck out the case on limitation grounds on the basis that the claim had been materially diminished prior to the strike out, because the alleged negligence of the solicitors had caused quantifiable economic loss, long before the claim had actually been struck out. In dismissing this argument, Saville LJ (as he then was) said, at pages 45 and 46:
“… the underlying proposition, as it seems to me, is that loss or damage can be treated as having occurred if it can be shown that, as a matter of inevitability or probability, that it will occur. I know of no authority for this proposition. Indeed it seems to me that the authorities cited are to precisely the opposite effect, for all make clear that what must be shown is actual loss or damage, not future loss or damage, however likely it is that this will occur. … The essence of the first submission (and, as it seems to me, of the reasoning of the deputy judge) is that the plaintiff’s claim had an ascertainable value which could be, and in this case was, diminished through the negligence of the solicitors, long before the action was actually struck out. An action at risk of being struck out without the possibility of revival may well diminish the value of the claim being pursued in the action, since, apart from anything else, the settlement value of the claim is likely to be reduced. To my mind, however, the overwhelming difficulty with this submission is that it simply ignores the fact that the plaintiff is not suing for any earlier diminution in the value of his claim, but for the loss of his cause of action, through his solicitors negligence, on February 4 1986. As in Kyle v Stormonth Darling [1993] SCLR 18, what on the plaintiff’s case has been lost is the right to advance his medical negligence claim in a court of law. That loss was not sustained until the action was struck out. To my mind a cause of action for diminishing the value of a claim is not the same as a cause of action for losing the right to advance that claim in a court of law.”
Nourse and Mann LJJ agreed.[65]In Khan v Falvey (supra), the first instance judge had held that the claimant’s cause of action against the defendant, his former solicitor, had only accrued when each of the actions negligently conducted by him on the claimant’s behalf had actually been struck out. The Court of Appeal (Schiemann, Chadwick LJJ and Sir Murray Stuart-Smith), allowing the appeal, held that the claimant’s causes of action had in fact accrued much earlier, because of the existence, at that much earlier stage, of the inevitable, or at least, serious, risk that they would be dismissed for delay. In so doing, they case doubt on the approach adopted in Hopkins v MacKenzie, although distinguishing it on the facts. Thus, Schiemann LJ concluded (at pages 635-635):
“28. A claim in tort is a chose in action and as such is assignable. But the value of the chose in action depends upon the prospect of success. If for whatever reason it is very likely or almost bound to fail, whether because it is liable to be struck out for want of prosecution, lack of merit or some other reason, it will have no value or no substantial value. In my judgment the Claimant in the present case could not have assigned his causes of action in Cases 1 and 3 for any real value for several years before they were actually struck out, because during that period there was an inevitability or at least a very serious risk that they would be struck out at any time. If this be right, as I believe it to be, it must follow that the claimant had already suffered damage by diminution in the value of his choses in action well before the actual striking out of the actions. 29. In many cases the application to strike out for want of prosecution may be made at the earliest opportunity that it is likely to succeed. In such cases it may be difficult to say that the claimants' chose in action has sustained any diminution in value until that time. In which case the cause of action will not arise earlier than the strike out, absent any prior damage of the sort claimed here. But often, when an action has gone to sleep for years, the actual application to strike is not made until years after it might successfully have been done. In such cases it seems to me that the damage is caused when there has been such inexcusable and inordinate delay or non compliance with rules such that the Court would have struck out the action and pursuant to CPR Part 3.4 , because the chose in action has so diminished in value to be of no real value. 30. It might be said that in theory the value of the chose in action will deteriorate over a period of time prior to the date when an application to strike out would have succeeded, and therefore once the decline starts, damage is sustained. But in the words of Lord Evershed in Cartledge v Jopling at p.774 there must be ‘real damage as distinct from purely minimal damage’. It seems to me that a claimant does not suffer real damage in the form of diminution of the value of his chose in action until there is a serious risk that the original action could be dismissed for want of prosecution. 31. While it is true that in Forster v Outred and the cases that followed, including Knapp v Ecclesiastical Insurance the original transaction that the claimant was advised to enter into was flawed so that damage was suffered at that time, it does not follow that damage cannot arise before the action in this type of case is struck out. Moreover the Nykredit case shows that the lender may sustain loss even before it can be finally quantified on the ultimate realisation of the security. 32. Had Hopkins v Mackenzie been a case where the application to strike out had been made at the earliest opportunity there would, I think, be no difficulty. But in that case the strike out of the original action was on 4th February 1986 and the writ in the action against the solicitor was issued on 27 January 1992, only about a week less than 6 years later. It was apparently accepted that there was in Feb 1986 an inevitability that the action would be struck out; it is difficult to think that that situation had not pertained for some time, at least before 27 January of that year. Both Mann and Nourse LJJ thought that if the original action had been settled before strike out on terms that reflected the risk of strike out, the cause of action would arise from the date of the settlement. I agree. But that is because the value of the Plaintiff's chose in action has by then been diminished. It does not seem to me that that diminution in value has to be quantified by a sale or settlement provided it can be shown that it has been substantial. 33. In my judgment therefore if and in so far as Hopkins v Mackenzie purports to hold that there can be no damage in this type of case prior to the actual strike out, I cannot agree that it is correct or is consistent with Nykredit. The mere fact that the claimant does not plead any damage prior to the strike out, does not necessarily mean that he has suffered no damage prior to that time. If it is clear that the value of his chose in action has been substantially diminished before the limitation date, the action will be statute barred. That is the position here at any rate in the first two cases. In Case 1 the claimant pleads in terms that the action could have been struck out at any time after 1990; and in Case 3, he pleads that it could have been struck out at any time after 1992. In Case 4 the dates are later; the claimant pleads that the action could have been struck out at any time after 1998; even if it had been susceptible to strike out before that, it would have been well within the limitation prior, so that this line of argument does not avail the defendant in case 4.” (Emphasis supplied)
[66]In concurring, Chadwick LJ said: “56. In the former class of case - now likely to become increasing rare if the principle of active case management embodied in the Civil Procedure Rules is given effect by the courts - it may be much more difficult to identify with any degree of precision the date at which the claim became vulnerable to being struck out. Typically, the effect of cumulative delay has been that it becomes increasingly difficult to resist an application to strike out based on the contention that it is no longer possible to have a fair trial. Although it may be possible to say, in such cases, that, before a certain date, the claim was not vulnerable to being struck out and that after another, and later, date it was so vulnerable, there will usually be a period of some months in respect of which there is room for a legitimate difference of view. But what can be said, with some confidence, is that during that period the value of the claim is diminishing as its vulnerability to strike out increases. It seems to me that, once the action has entered that period, it is impossible to say that damage has not occurred as a consequence of the previous delay. It is no answer that the damage may be difficult to quantify — see the observations of Lord Nicholls in the Nykredit case at [1997] 1 WLR 1627, 1632E–F. And, if measurable damage has arisen from the delay, then the cause of action is complete. To hold that further delay will give rise, day by day, to a further cause of action - on a rolling basis - would seem to me inconsistent with the principle in Cartledge v Jopling & Sons Ltd [1963] AC 758. There may, of course, be cases where there is some new and supervening act or omission. But, otherwise, as Lord Justice Hobhouse put it in Knapp v Ecclesiastical Insurance Group Plc [1998] PNLR 172, at page 178: ‘It is immaterial that at some later time the damage suffered by the plaintiffs became more serious or was capable of more precise quantification. Provided that some damage has been suffered by the plaintiffs as a result of the second defendant's negligence which was “real damage” (as distinct from purely minimal damage) or damage “beyond what can be regarded as negligible” that suffices for the accrual of the cause of action’. 57. If the decision of this Court in Hopkins v MacKenzie is understood, as I think it should be, as limited to those cases in which the only loss on which the claimant seeks to found his cause of action is the loss of his right to pursue the earlier action by reason of the strike out - measured by, and confined to, the residual value of the claim immediately before actual strike out - then it cannot, in my view, be held to be inconsistent with the later decision in the Nykredit case. But the circumstances in which a claim can be advanced on that limited basis are likely to be rare. As soon as the claimant seeks to found his cause of action on the diminution in the value of his claim arising from a period of delay, the decision in Hopkins v MacKenzie is of no assistance.” ‘It is immaterial that at some later time the damage suffered by the plaintiffs became more serious or was capable of more precise quantification. Provided that some damage has been suffered by the plaintiffs as a result of the second defendant's negligence which was “real damage” (as distinct from purely minimal damage) or damage “beyond what can be regarded as negligible” that suffices for the accrual of the cause of action’.[67]In Hatton v Chafes (supra) this Court, in allowing an appeal by the defendant against the refusal of the judge below to strike out the claim against him on limitation grounds, considered the previous decisions of Hopkins v MacKenzie and Khan v Falvey. At 492, Clarke LJ (as he then was) described the relevant principles as follows:
“11 The appellants' case is that the respondent's cause of action accrued before 13 October 1994. They say that the alleged breaches of duty (which I shall describe as negligence for short) and the respondent's relevant loss occurred before that date. The negligence was essentially the failure to progress the action against the accountants. 12 The following principles are not in dispute and may be summarised in these propositions: i) A cause of action in negligence does not arise until the claimant suffers damage as a result of the defendant's negligent act or omission. ii) The damage must be ‘real’ as distinct from minimal: Cartledge v Jopling [1963] AC 758 per Lord Reid at 771 and Lord Evershed MR at 773–4. iii) Actual damage is any detriment, liability or loss capable of assessment in money terms and includes liability which may arise on a contingency: Forster v Outred [1982] 1WLR86 per Stephenson LJ at 94, approved by the House of Lords in Nykredit per Lord Nicholls (with whom the other members of the appellate committee agreed) at 630F. iv) The loss must be relevant in the sense that it falls within the measure of damages applicable to the wrong in question: Nykredit at 1630F. (Propositions i) to iv) were confirmed by Sir Murray Stuart-Smith in Khan v Falvey at paragraphs 11 and 12.) v) A claimant cannot defeat the statute of limitations by claiming only in respect of damage which occurs within the limitation period if he has suffered damage from the same wrongful act outside that period: Khan v Falvey at paragraph 23, following Knapp v Ecclesiastical Insurance Group Plc [1998] PNLR 172 per Hobhouse LJ at 184 and 187. 13 The question arises how those principles should be applied to a case of this kind, where a claimant complains that, as a result of negligence in the conduct of his claim against, say, his previous accountants, that claim has been struck out. The negligence will often take the form of delay. It follows that, in accordance with the principles set out above, the question is when the claimant first suffered damage as a result of that negligent delay. The cases show that, once he has suffered some relevant recoverable damage as a result of that delay, his cause of action is complete and the six year period runs from that date and not from any later date, even in respect of other damage or loss of the same kind suffered as a result of the same tort, that is as a result of the same delay. 14 What then amounts to such damage? In Khan v Falvey, where the claim had been struck out in each of three cases, the judge at first instance held that the decision of this court in Hopkins v Mackenzie required him to hold that the cause of action pleaded did not arise until the claim was actually struck out because no damage occurred until then. This court held in Khan v Falvey that Hopkins v Mackenzie did not compel that conclusion or, if it did, that it was wrong and should not be followed in the light of the decision of the House of Lords in Nykredit. 15 The reason why it was held that Hopkins v Mackenzie did not compel that conclusion can be seen from the conclusions of Chadwick LJ in paragraph 57 of his judgment: ‘If the decision of this court in Hopkins v Mackenzie is understood, as I think it should be, as limited to those cases in which the only loss on which the claimant seeks to found his cause of action is the loss of his right to pursue the earlier action by reason of the strike out and – measured by, and confined to, the residual value of the claim immediately before actual strike out – then it cannot, in my view, be held to be inconsistent with the later decision in the Nykredit case. But the circumstances in which a claim can be advanced on that limited basis are likely to be rare. As soon as the claimant seeks to found his cause of action on the diminution in value of his claim arising from a period of delay, the decision in Hopkins v Mackenzie is of no assistance.’ 16 Khan v Falvey is authority for the proposition that it is not a condition precedent for any claim against defendant solicitors that the underlying action should have been struck out. That is because the claimant may have suffered relevant damage before an order is made striking the action out. The question remains by what criteria to judge when that moment arises. Although that question was discussed in the judgments in Khan v Falvey, as I read them it was not necessary to decide it for the purposes of the decision in that case. Nor is it to my mind necessary for it to be determined for the purposes of the decision in this appeal. 17 It seems to me that there are three possibilities as to when damage is caused by negligence in such a case so that the claimant's cause of action has accrued and time begins to run against him. The first is when the claimant has no arguable basis for avoiding the claim being struck out, the second is when it is more probable than not that the claim will be struck out and the third is when there is a real (as opposed to a minimal or fanciful) risk of the claim being struck out. The reason why it is not necessary to determine which of those possibilities is correct here is that, in my opinion, this is an example of the first class of case on the facts. 18 As I read it, Khan v Falvey was also an example of such a case. This can be seen with particular clarity in the judgment of Schiemann LJ. He noted in paragraphs 65 and 66 that in both Case 1 and Case 3 (which were the first two of the cases being considered) the claimant had pleaded that by a certain date his claim (or in one case counterclaim) was “amenable to be struck out for want of prosecution”
. Schiemann LJ said in paragraph 65:
‘By the phrase “amenable to be struck out” the pleader intended to convey that after 1990 there was no arguable defence to an application to strike out. This is common ground. On that basis the claimant had suffered damage from the defendant's negligence by, at the latest, January 1, 1991 and his cause of action had arisen then. What had been (let us assume) a right of action against the debtor which was worth something, had become a right of action which was worth nothing. All the alleged negligence by the solicitor had occurred by then. The present action was not started until more than six years later. In those circumstances it is time barred.’ 19 Thus if, on the facts here, there was no arguable defence to an application to strike out as at 13 October 1994, the claim here is time barred in so far as it is a claim for loss of the chance of recovering damages against the accountants. I therefore turn to the pleaded claim and the relevant facts, before returning briefly to the other two possibilities identified in paragraph 17.” i) A cause of action in negligence does not arise until the claimant suffers damage as a result of the defendant's negligent act or omission. ii) The damage must be ‘real’ as distinct from minimal: Cartledge v Jopling [1963] AC 758 per Lord Reid at 771 and Lord Evershed MR at 773–4. iii) Actual damage is any detriment, liability or loss capable of assessment in money terms and includes liability which may arise on a contingency: Forster v Outred [1982] 1WLR86 per Stephenson LJ at 94, approved by the House of Lords in Nykredit per Lord Nicholls (with whom the other members of the appellate committee agreed) at 630F. iv) The loss must be relevant in the sense that it falls within the measure of damages applicable to the wrong in question: Nykredit at 1630F. (Propositions i) to iv) were confirmed by Sir Murray Stuart-Smith in Khan v Falvey at paragraphs 11 and 12.) v) A claimant cannot defeat the statute of limitations by claiming only in respect of damage which occurs within the limitation period if he has suffered damage from the same wrongful act outside that period: Khan v Falvey at paragraph 23, following Knapp v Ecclesiastical Insurance Group Plc [1998] PNLR 172 per Hobhouse LJ at 184 and 187. ‘If the decision of this court in Hopkins v Mackenzie is understood, as I think it should be, as limited to those cases in which the only loss on which the claimant seeks to found his cause of action is the loss of his right to pursue the earlier action by reason of the strike out and – measured by, and confined to, the residual value of the claim immediately before actual strike out – then it cannot, in my view, be held to be inconsistent with the later decision in the Nykredit case. But the circumstances in which a claim can be advanced on that limited basis are likely to be rare. As soon as the claimant seeks to found his cause of action on the diminution in value of his claim arising from a period of delay, the decision in Hopkins v Mackenzie is of no assistance.’ ‘By the phrase “amenable to be struck out” the pleader intended to convey that after 1990 there was no arguable defence to an application to strike out. This is common ground. On that basis the claimant had suffered damage from the defendant's negligence by, at the latest, January 1, 1991 and his cause of action had arisen then. What had been (let us assume) a right of action against the debtor which was worth something, had become a right of action which was worth nothing. All the alleged negligence by the solicitor had occurred by then. The present action was not started until more than six years later. In those circumstances it is time barred.’
[68]He then went on to consider the particular facts of the case, and decided that there was no arguable defence to an application to strike out as at 3 October 1984 (i.e. before the start of the relevant limitation period), and accordingly allowed the appeal.[69]In agreeing that the appeal should be allowed, Sir Anthony Evans said, at paragraphs 78-82:
“78 I agree, in particular, that by 13 October 1994, which was the relevant date for limitation purposes, the respondent's claim against his former accountants was doomed to failure, and therefore was “worthless” (per Schiemann LJ. in Khan v Falvey [2002] EWCA Civ 400 [2002] PNLR 28 at paragraph 65). Any value which the claim had had for him previously was lost, irretrievably, by that date. 79 This is clear, in my judgment, because any attempt to proceed with the action against the accountants in October 1994 would have been met with an application to dismiss the claim for want of prosecution, and the application would certainly have succeeded. The action was, on any view, ‘amenable to striking out’. The fact that the striking out order was not made until June 1999, after an even more belated attempt to revive the proceedings in January 1999, does not alter the circumstances as they were in 1994. 80 It is unnecessary, therefore, in the present case to define the precise nature of the evidential burden which rests upon the claimant in cases of this sort. Nevertheless, an issue does arise, which was argued before us. Is it sufficient to prove that there was some chance – a ‘real’ or ‘substantial’ chance – that the claim would have been struck out at the relevant date, if an application had been made? Or must the claimant prove something more – perhaps, that an application would probably have succeeded, if one had been made? 81 The former view receives some support from statements which are found in the authorities to the effect that the relevant kind of loss is the diminished value of the claim. Some diminution occurs when a striking out application would have some prospect of success, though falling short of 50 per cent. Yet in such a case it could not be said that the application would probably succeed or that the claim was probably worthless. 82 The relevant kind of damage (compare Nykredit [1997] 1 WLR 1627 at 1630F), in my judgment, is the loss of the right to proceed further with the original action. The measure of that loss, when it occurs, is the value of the chance of that action succeeding. But the loss is not suffered until the action is lost. That occurs when the action is struck out in fact (Hopkins v MacKenzie (1995) 6 Med. L.R. 26) or when it becomes ‘amenable to striking out’ i.e. doomed to failure (Khan v Falvey). The claimant must prove that that was the state of the action at the relevant date. Consistently with general principle, he must prove this on the balance of probabilities. So the issue becomes, would a striking out application probably have succeeded, if one had been made at the relevant date?”
[70]I agree with Sir Anthony Evans that cases of this sort are notoriously fact-sensitive. As I have already said, I see no reason in this case to attempt to reconcile what are the arguably inconsistent approaches of this Court in Hopkins v MacKenzie on the one hand, and Khan v Falvey and Hatton v Chafes, on the other, let alone to attempt to comment what, in any event, were the obiter statements about the appropriate criteria to adopt to a determination of the limitation issue. Nor do I consider it necessary to analyse the view apparently reached by Schiemann LJ in the underlined passage in paragraph 32 of his judgment in Khan, quoted above, that if the settlement reflected the risk of strike out, the cause of action would only arise from the date of settlement, even though (theoretically, at least) the value of the chose in action might well have been substantially eroded at a much earlier date. I prefer simply to answer the realistic and fact-dependent question formulated by Lord Hoffmann in Nykredit: when was Ms. Berney financially worse-off as a result of the Respondent’s breach of his duty of care than she would otherwise have been?

Application of the law to the facts of this case

[71]In my judgment, the answer to that question is simple. On an objective analysis of the facts, it is unreal to characterise Ms. Berney’s claims as one for “diminution of the value of her chose in action”. Her claim is one for her loss as a result of having to settle her claim in November 2005. Although there was a possible litigation risk that she might not get permission to serve her Particulars of Claim out of time, in reality, and contrary to the advice of her counsel at the time, that risk was, if not fanciful, at least extremely small. So, whilst the settlement no doubt reflected that risk, and also the costs risks to which she was potentially exposed if she continued with the litigation, it cannot, in my judgment, be said that she had suffered actual financial loss prior to that date.[72]Of course, there may well be a time in the life of a chose in action when its value will diminish towards being worthless due to the negligent delay by a claimant’s solicitor. Personal injury claims where liability and damages are in serious dispute, if left for an inordinate period of time without movement, may well lead a court to take the view that the reluctance to bring proceedings is due to a lack of confidence or enthusiasm for the case. In such circumstances, the result may well be that, prior to settlement or strike-out, the claimant has suffered actual loss because the value of her claim has been rendered worthless.[73]But that is not this case, as the chronology which I have extensively set out above clearly demonstrates. This was a case where liability had been admitted and the solicitors for the respective parties had been in communication (albeit dilatory) about medical records and reports for a number of years.[74]HHJ Simpkiss took the view that the loss in this case was suffered long before 1 January 2005. But he did not set out any particular reason for taking that view, save to refer to the concerns of Ms. Berney’s counsel that there was only a 20% chance of success for applying for an extension of time in which to serve Particulars of Claim.[75]The rules governing an application for extension of time for service are contained in CPR rule 3.1(2)(a) and 3.9. In Price v Price [2003] EWCA (Civ) 888, the Court of Appeal decided that an extension of the principles governing the extension of time for serving Particulars of Claim are identical with an extension of time for appealing. At the time, rule 3.9 read: “The court will consider all the circumstances including: a) the interests of the administration of justice; b) whether the application for leave has been made promptly; c) whether the failure to comply was intentional; d) whether there is good explanation for the failure; e) the extent to which the party in default has complied with other rules, Practice Directions, court orders and any relevant pre-action protocol; f) whether the failure to comply was caused by the party or his legal representative; g) whether the trial date, or the likely trial date can still be met if relief is granted; h) the effect which the failure to comply had on each party; and i) the effect which the granting of relief would have on each party.” (The current formulation of the rule, in shorter form, makes no material difference)[76]Ms. Berney had a cast-iron claim for damages for personal injury and loss, where liability had been admitted. To strike it out would, in the words of Price v Price, have denied her access to the court. In my judgment, it was inconceivable that her claim would have been struck out, either in November 2005 or any earlier date; there was no real risk that it would. Nor do I see any reason why we, sitting here today and looking at the reality of the situation, should assume that, if Ms. Berney had applied for an extension of time for service of her Particulars of Claim, her claim would have been limited to any particular sum or to the evidential position based on the medical reports available at that date. It was clear from the chronology, which I have recited, that the obtaining of medical records and reports was a lengthy and ongoing process.[77]As Ms. Simpson accepted in argument, there was no prejudice to Mrs. Liddell’s insurers at that stage. They had admitted liability, and, necessarily, the quantum of the claim was still in the development stage, given the recognition by the orthopaedic consultants that psychiatric evidence was required and the then-recent provision of medical records. On the other hand, the effect of not permitting Ms. Berney’s claim to proceed would have been devastating, as it would have wiped out her claim and exposed her to adverse costs. The failure to comply with the rules had (so far as the evidence discloses) been wholly attributable to the Respondent’s negligence. All these facts clearly demonstrate that, applying the criteria contained in rule 3.9, the court would, or certainly should, have granted Ms. Berney an extension of time within which to file her Particulars of Claim without limitation.[78]The decision in Price v Price shows that a Court may, on an application, limit the quantum of damages in an appropriate case, not that it must do so. Each case must depend on its own particular facts. Here the imposition of any such limitation would (on the assumption that Ms Berney’s claim was well-founded) have resulted in insurers of a negligent driver avoiding payment of the full value of her claim, as a result of the negligence of the victim’s own solicitors. I do not consider that in such circumstances the imposition of a limitation would have satisfied the first criterion of rule 3.9, viz. “the interests of the administration of justice" .[79]That being the case, I am satisfied, on the particular facts of the case, that the first date upon which Ms. Berney suffered relevant loss, and when she was “… financially worse off by reason of a breach [by the Respondent] of the duty of care than [she] otherwise would have been …” was on 1 November 2005, when MR settled the claim on her behalf. Any prospective liability she might have had, prior to that date, in respect of the costs which she might have had to pay (whether her own or Mrs. Liddell’s) had she issued an application for permission to serve the Particulars of Claim out of time, had not accrued, even on a contingent basis, by that date, since no such application had even been issued. In the circumstances, it is, in my judgment, impossible to say that this was a case where Ms. Berney was financially worse off at some time prior to 10 January 2005. Her relevant loss occurred in November 2005, when she made the decision, given the risks which she faced, to settle the claim for £25,000 and payment of her costs.

Disposition

[80]Accordingly, I would allow this appeal on the grounds that there is nothing in the evidence before this Court to support the Respondent’s contention that Ms. Berney’s cause of action in negligence against the Respondent had accrued prior to 10 January 2005, six years before the date of the issue of the claim form. In my judgment, it accrued in November 2005, at the date of the settlement of her RTA claim.[81]Whether Ms. Berney will be able to establish at trial the necessary causative link between what she alleges was the Respondent’s negligence and the £25,000 she contends she was forced to accept by way of settlement, or whether she will be able to prove, on the balance of probabilities, that, if the case against Mrs. Liddell had proceeded, she would have been able to recover more than that sum, are not matters upon which it is appropriate for this Court to express any view. But in relation to the alternative ground upon which the District Judge apparently reached her conclusion, it is clear that, until the claim has been properly re-pleaded by Ms. Berney, to take into account the proposed amendments envisaged in the draft pleading before HHJ Simpkiss, and a Defence has been served on behalf of the Respondent, any summary judgment or strike-out application based on the alternative grounds which were before the District Judge, would be premature.[82]Ms. Berney also advanced certain procedural points of complaint. In the circumstances, it is not necessary to deal with any of these, save to record that insurers take no point on whether the Respondent is sued personally or in the name of his firm.[83]I have read in draft the judgments of Gloster and Moses LJJ. For the reasons expressed by Moses LJ, with which I agree and to which I cannot usefully add, I would also allow the appeal.[84]I agree that the appeal should be allowed. But I add a few words of my own to express some reservations to Gloster LJ’s forthright reasoning.[85]I agree that it is necessary to ask when it was that Ms. Berney was financially worse off than she would otherwise have been as a result of the Respondent’s breach of duty of care. Gloster LJ has alighted on the date of the settlement on 1 November 2005. She takes the view that there was no real risk that Ms. Berney would have failed, at any time before then, to obtain an extension of time for serving her Particulars of Claim, applying the considerations identified in rule 3.9.[86]I am unable to share so robust an opinion. In my view there was a real risk that prior to the date of the settlement had Ms. Berney’s solicitor, Martin Ross, made an application to the court to extend time for service, she would have been confined either to the sum of £50,000 which she had originally claimed, or to such lesser sum as the evidence based on the medical reports disclosed at that time. As I understand it, Mr Good was the only joint expert and the evidence obtained from Mr Cass dated 27 June 2005 had not been served on Davies, Wallis Foyster, the other driver’s solicitors. In Price v Price, this Court met the justice of the case by extending time for service of the particulars of claim but restricted the claimant to reliance only on that which could have been substantiated prior to the time when the particulars of claim should have been served [45], [46].[87]The feature of Price v Price which is significant for the purposes of the instant case is the importance Brooke LJ attached to the damage, caused by the delay, to the administration of justice (see 3.9.(a) and his reference to disciplinary framework at [45]). I do not share Gloster LJ’s confidence that that would not have been invoked, all the more so where the longer the case lasted, so the driver’s solicitors would have argued, the longer the claimant’s non-organic symptoms, on which Mr Cass, in his report, placed considerable stress, would have been aggravated.[88]Nor do I agree that it is incorrect to characterise Ms. Berney’s claim as one for “diminution of the value of her chose in action”[71]. It is true that she claimed for having to settle her loss at a figure far below the true value of the claim. It remains for her to prove that the true value was greater. But non constat that her cause of action did not commence at a date before the settlement. A claimant cannot avoid the identification of an earlier date as the date when she suffered actual damage merely by the form of her pleading, whether relying on an actual strikeout or a settlement. If in fact the value of her claim was diminished before settlement then her cause of action arose before settlement.[89]This proposition is made good by reference to the passage cited earlier of Schiemann LJ in Khan v Falvey: “The mere fact that the claimant does not plead any damage prior to the strike out, does not necessarily mean that he has suffered no damage prior to that time” [33]. The same must be true where damage has been suffered prior to settlement.[90]It does not follow, from the fact that there was a settlement, that actual damage had not been suffered before. As Schiemann LJ acknowledged: “It does not seem to me that that diminution in value has to be quantified by a sale or settlement provided that it can be shown to be substantial” (ibid.[32])[91]Prior to the settlement, a real risk had arisen that the claim would have been restricted to a value less than that which the claimant now asserts. It had entered that period, to which Chadwick LJ refers in Khan, when it was impossible to say that damage had not occurred as a consequence of the previous delay.[92]I have mentioned these points only out of caution. They do not, in my view, affect the result. This is because up to 25 January 2005 there was no risk that time would not have been extended or that the claim would have been restricted. Up to that date, Davies, Wallis Foyster had been prepared to give Ms Berney’s solicitors, Martin Ross, time to obtain the answers to questions posed to Mr Good. They had done so on the express assurance that they would “take no procedural point over the additional delay” (19 November 2004, extended by letter dated 15 December 2004). Those assurances were only withdrawn on 25 January 2005. It is inconceivable that they would have been allowed to go back on those assurances had Martin Ross sought to extend time before 25 January 2005.[93]After that time, for the reasons I have given, there was a real risk that Ms. Berney’s claim would have been restricted. From 25 January onwards she had suffered actual damage, measurable by the risk of a restriction being imposed.[94]In the instant appeal that makes no difference, because actual damage only arose after 25 January 2005 and this claim is, accordingly, not out of time. With those qualifications I agree that the appeal should be allowed and we will hear from the parties, in writing, as to the orders we should make to urge this case towards a final and just quietus.

order

Hopkins v MacKenzie [1994] PIQR 43; Khan v Falvey (supra) and Hatton v Chafes (a firm) [2003] PNLR 24.

Cited in 5 later judgments