“There was no advice from Mrs Kaye at any stage other than a clean break would be best so I could ‘get on with my life and not rely on him’. She said that I was ‘a strong woman’ and ‘it would be unlikely he would make the payments’.”
“(8) The other facts referred to in subsection (6)(b) above are— (a) that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence; and (b) the identity of the defendant; and (c) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant. (9) Knowledge that any acts or omissions did or did not, as a matter of law, involve negligence is irrelevant for the purposes of subsection (5) above. (10) For the purposes of this section a person’s knowledge includes knowledge which he might reasonably have been expected to acquire— (a) from facts observable or ascertainable by him; or (b) from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek; but a person shall not be taken by virtue of this subsection to have knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.” (a) that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence; and (b) the identity of the defendant; and (c) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant. (a) from facts observable or ascertainable by him; or (b) from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek; but a person shall not be taken by virtue of this subsection to have knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.”
“We consider that a plaintiff who has no means of knowing that he has suffered damage should not as a general rule be barred from taking proceedings by a limitation period which can expire before he discovers (or could discover) his loss. But we are equally convinced that defendants require protection from stale claims and that a time limit must be set to a legal action by a plaintiff.”
“ the date on which he first had knowledge of the following facts— (a) that the injury in question was significant; and (b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and (c) the identity of the defendant; and (d) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant” with the proviso that “knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant”: see section 14(1). It is further stated, in section 14(3), as follows: “For the purposes of this section a person’s knowledge includes knowledge which he might reasonably have been expected to acquire— (a) from facts observable or ascertainable by him; or (b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek; but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.”
“means knowing with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking advice, and collecting evidence: ‘Suspicion, particularly if it is vague and unsupported, will indeed not be enough, but reasonable belief will normally suffice.’ In other words, the claimant must know enough for it to be reasonable to begin to investigate further”; ii) Knowledge of “the facts which are the ‘essence’ or ‘essential thrust of the case’ or which ‘distil what [the claimant] is complaining about’” is enough, to use the words of Lord Walker at paragraph 66. See, too, Lord Nicholls at paragraph 10, Lord Scott at paragraph 49 and Lord Mance at paragraph 120; iii) Where a claim relates to professional advice, the fact that the claimant knew that he had incurred loss as a result of acting in accordance with the advice need not mean that he had knowledge that “the damage was attributable … to the act or omission which is alleged to constitute negligence” for the purposes of section 14A(8)(a). Lord Mance said in paragraph 118 that “it is … wrong to suggest that all a claimant needs to know is that he has received professional advice but for which he would not have acted in a particular way which has given rise to loss, or that he has not received advice when, if he had received it, he would have acted in a way which would avoided such loss”, adding: “A claimant who has received apparently sound and reliable advice may see no reason to challenge it unless and until he discovers that it has not been preceded by or based on the investigation which he instructed or expected. A claimant who has suffered financial loss in a transaction entered into in reliance on such advice may not attribute such loss to the advice unless and until he either makes the like discovery about the inadequacy of the work done, or at least discovers some respect in which the transaction was from the outset unsound giving him … prima facie cause to complain. Such a scenario may well occur where there are other causes of loss which appear to him capable of explaining the whole loss.”
“19. … As already noted, in addition to having knowledge of the material facts about the damage, a claimant must know there was a real possibility the damage was caused by (‘attributable to’) the acts or omissions alleged to constitute negligence. The conduct alleged to constitute negligence in the present case was not the mere giving of advice. The conduct alleged to constitute negligence was the giving of flawed advice: Mr Austreng did not give the advice appropriate to the true financial state of the company’s affairs. 20. This feature of the advice cannot be brushed aside as a matter of detail. Nor can it be treated, as it was by the judge, as a matter going only to particulars. Far from it. This feature is the very essence of Mr Haward’s claim. Stated in simple and broad terms, his claim is that Mr Austreng did not do his job properly. Time did not start to run against Mr Haward until he knew enough for it to be reasonable to embark on preliminary investigations into this possibility. 21. There may be cases where the defective nature of the advice is transparent on its face. It is not suggested that was so here. So, for time to run, something more was needed to put Mr Haward on inquiry. For time to start running there needs to have been something which would reasonably cause Mr Haward to start asking questions about the advice he was given.”
“36 From all of this, I conclude that where the essence of the allegation of negligence is the giving of wrong advice, time will not start to run under s.14A [of the 1980 Act] until a claimant has some reason to consider that the advice may have been wrong. 37 Similarly, where the essence of the allegation is an omission to give necessary advice, time will not start to run under s.14A until the claimant has some reason to consider that the omitted advice should have been given.”
“In [37] the judge is not saying (by the use of ‘should have been given’) that the claimant must know that the lawyer was under a duty to give the omitted advice. That would offend against s.14A(9) which the judge had well in mind (see for example [86] of his judgment). He is saying no more than that in a case of omission time will not start to run until a claimant has some reason to consider that the necessary advice has not been given.”
“The language of section 14A thus recognises a range of different states of mind: (a) actual knowledge of the material facts about the damage and other facts relevant to the action (including therefore knowledge that the loss was capable of being attributed to an act or omission alleged to constitute negligence); (b) knowledge that a claimant might reasonably have been expected to acquire (from facts observable by himself or ascertainable by him or with the help of appropriate expert advice which it would have been reasonable for him to seek); and (c) ignorance. Actual knowledge within (a) involves knowing enough to make it reasonable to investigate whether or not there is a claim against a particular potential defendant ….
“In my judgment, a reasonable man in the position of the deceased [the plaintiff having died], who knew that the operation had been unsuccessful, that he had suffered a major injury which would seriously affect his enjoyment of life in the future, would affect his employability on the labour market, if he had any, and would impose substantial burdens on his wife and family in looking after him, if he was minded to make a claim at any time, should and would take advice reasonably promptly.”
“Turning to the words of section 14(3), it is clear that the deceased could reasonably have been expected to acquire the relevant knowledge with the help of suitable medical advice. The real question is whether it was reasonable for him to seek that advice. If it was, he took no steps at all to do so. One of the problems with the language of section 14(3)(b) is that two alternative courses of action may be perfectly reasonable. Thus, it may be perfectly reasonable for a person who is not cured when he hoped to be to say, ‘Oh well, it is just one of those things. I expect the doctors did their best.’ Alternatively, the explanation for the lack of success may be due to want of care on the part of those in whose charge he was, in which case it would be perfectly reasonable to take a second opinion. And I do not think that the person who adopts the first alternative can necessarily be said to be acting unreasonably. But he is in effect making a choice, either consciously by deciding to do nothing, or unconsciously by in fact doing nothing. Can a person who has effectively made this choice, many years later, and without any alteration of circumstances, change his mind and then seek advice which reveals that all along he had a claim? I think not. It seems to me that where, as here, the deceased expected, or at least hoped, that the operation would be successful and it manifestly was not, with the result that he sustained a major injury, a reasonable man of moderate intelligence, such as the deceased, if he thought about the matter, would say that the lack of success was ‘either just one of those things, a risk of the operation, or something may have gone wrong and there may have been a want of care; I do not know which, but if I am ever to make a claim, I must find out.’ In my judgment, any other construction would make the Act unworkable since a plaintiff could delay indefinitely before seeking expert advice and say, as the deceased did in this case, ‘I had no occasion to seek it earlier.’ He would therefore be able, as of right, to bring the action, no matter how many years had elapsed. This is contrary to the whole purpose of the Act which is to prevent defendants being vexed by stale claims which it is no longer possible to contest.”
“There was no reason why the advice sought in March 2020 could not have been sought and obtained (that exercise in 2020 took a couple of months) by the end of 2018. There is no excuse for the delay on Ms Kay’s part during the second half of 2018 and the whole of 2019. The personal reasons she relied upon are irrelevant ….”
“162. I have already explained that it was Mr Morgan who in fact paid for counsel’s advice in 2020. He also paid£5,000 for [Ms Kay’s] 50th birthday celebrations in early 2018. The birthday party money might have been used instead to pay for counsel’s advice at some point in 2018 or 2019. Of course, she may never have met Mr Morgan or come across any alternative way of paying for the expert assistance. On the other hand, she might in other circumstances have resumed her financially rewarding work as an environmental consultant or otherwise come into enough money to instruct counsel. I am prepared to assume that Ms Kay had no ‘claim’, or even expectation, that Mr Morgan would pay for either the party or the advice and also that her own financial resources were throughout the 15 years from April 2008 (the longstop period) as stretched as she says they were in 2018 and 2019. 163. However, as I have said in addressing the effect of section 14A above, in my judgment there is no place for a corresponding assumption that even now (in 2024 and 16 years after the Settlement which she says is the cause of her financial position) she might, but for Mr Morgan’s assistance and having since hit the section 14B longstop, still be in the position of saying that this limb of the sub-section should not be held against her. Such conjecture about the vicissitudes in a claimant’s financial position over a potential period of 15 years provides a clear indication that her wherewithal, or lack of it, is irrelevant to the inquiry under section 14A.”
“82 On16 December 2009 , although he knew about the risk of under-settlement, the claimant had absolutely no reason to suspect that that risk was caused by anything done or not done by his advisers. On the contrary, those very advisers expressly advised him that the risk existed, and reminded him to decide for himself whether it was a risk he was willing to run. On the basis of the advice given (that a settlement would necessarily be full and final), he may have felt critical of the legal system for not providing any alternative solution. But that was not a reason to suspect that it was his advisers who were depriving him of that solution. 83 In my judgment he had no reason to suspect that there had been flawed advice or flawed omissions from the advice, before 2017. When his condition worsened in 2015 and 2016, he was experiencing precisely the kind of post-operative problems which his advisers themselves had referred to in 2009 when they identified the risk of under-settlement. That was not a reason to consider that he might have been wrongly advised. 84 Nor did he necessarily acquire that knowledge as soon as Mr Kang introduced the possibility of amputation on19 January 2017 . It remained the case that the risk of deterioration about which the defendants had warned him was eventuating, albeit to an unanticipated extent or in an unanticipated way. 85 What happened, nevertheless, is that this momentous development led to his taking new legal advice and discovering that he could have attempted to claim provisional damages.”
“The fact that the claimant’s condition worsened significantly and sooner than expected might have made him think that his medical experts had got things wrong, but it did not. 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. There was nothing intrinsic to his situation to alert him to the fact that he had received flawed advice. He might, as the judge observed, 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. He was in the same position as a claimant would have been before 1985 when provisional damages were introduced by theSenior Courts Act 1981 . He believed, as a result of what he had been told, that only a lump sum in full and final settlement was possible.”
“It seems to me that the claimants did act reasonably in choosing to go to Mr Laidlow in the first instance. He indicated to them that he was prepared to accept instructions in relation to the trusts and to investigate how the Property had come to be sold. From the claimants’ point of view, he was in many ways the obvious choice. He had set up the trusts and had continued to advise Dr Weddell [i.e. the first claimant’s mother] when the position changed in 2005. He had complete understanding of the EPS scheme [i.e. the estate protection scheme which Dr Weddell had adopted] and how it was intended to operate. He was therefore best placed, one might have thought, to provide the claimants with a relatively swift explanation as to what had gone wrong. It was certainly not unreasonable for them to select him as their first port of call. We, of course, know that he was aware that the restriction had not been registered but did not disclose this to the claimants even though it was, I think, part of his obligation to them as clients to notify them that he could not act because they might have a claim against him. The fact that he and Gateleys chose not to make that disclosure is not something which should be held against the claimants.”
“In principle, I think that the judge was right in applying the standard of reasonable behaviour to a person assumed to be suffering from untreated dyslexia. If the injury itself would reasonably inhibit him from seeking advice, then that is a factor which must be taken into account.”
“I would add that the test of what is reasonable is one which is a recurrent motif in the provisions of the 1980 Act and some, at least, of those provisions suggest that the test of what is reasonable is an objective test which applies the standards of the reasonable man. Thus the reference to ‘all reasonable steps’ in section 14(3)(b) itself and, in a similar context, in section 14A(10)(b) suggests an objective standard. The same is true of the provision in section 14A(7) that ‘the material facts about the damage are such facts about the damage as would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify his instituting proceedings ...’ These provisions lend some support to the conclusion that the standard of reasonable behaviour for the purposes of section 14(3) is one which does not have regard to aspects of character or intelligence which are peculiar to the claimant.”
“The reference in section 14(3) to ‘knowledge which he might reasonably have been expected to acquire’ should, in my opinion, be taken to be a reference to knowledge which a person in the situation of the claimant, i e an adult who knows he is illiterate, could reasonably be expected to acquire. Personal characteristics such as shyness and embarrassment, which may have inhibited the claimant from seeking advice about his illiteracy problems but which would not be expected to have inhibited others with a like disability, should be left out of the equation. It is the norms of behaviour of persons in the situation of the claimant that should be the test.”
“In my opinion, the approach to section 14(3) constructive knowledge should be mainly objective. What would a reasonable person placed in the situation in which the claimant was placed have said or done?”
“The distinction between circumstances and personal characteristics is intelligible and helpful in many cases, but there are bound to be some in which the distinction is elided (an extreme example being a claimant who has suffered serious head injuries raising an issue as to whether he has legal capacity either to commence or to compromise legal proceedings on his own: see Masterman-Lister v Brutton & Co (Nos 1 and 2)[2003] 1 WLR 1511 ). Baroness Hale’s distinction between personal characteristics which affect a person’s ability to acquire information and those which affect a person’s reaction to the information once acquired is a distinction which will be useful in some cases. But characteristics such as shyness, embarrassment and lack of assertiveness (which feature in several of the reported cases) may be relevant both to the acquisition of information and to acting (or failing to act) on it.”
“In my view, all the cases to which we have been referred are explicable on the basis that the law expects people to make such inquiries or seek such professional advice as they reasonably can when they have good reason to do so. Their motive for not doing so will generally be irrelevant. But I would not want to rule out that their personal characteristics may be relevant to what knowledge can be imputed to them under section 14(3). There is a distinction between those personal characteristics which affect the ability to acquire information and those which affect one’s reaction to what one does know. A blind man cannot be expected to observe things around him, but he may sometimes be expected to ask questions. It will all depend upon the circumstances in which he finds himself. As McGee and Scanlan have suggested, in an attempt to reconcile the authorities, a factor or attribute which is connected with the ability of a claimant to discover facts which are relevant to an action should be taken into account; but a factor in his make-up which has no discernible effect upon his ability to discover relevant facts should be disregarded: see ‘Constructive knowledge within the Limitation Act’ (2003) 22 CJQ 248, 260. They go on to suggest that qualifications, training and experience may have such an effect, while intelligence may not. It will all depend upon the facts of the case.”
“20 There is, of course, an issue as to whether the court should, in determining whether it is reasonable to expect a person to seek legal advice, take into account the surrounding circumstances and any special characteristic or attribute of the claimant. Section 14A(10)) is silent as to the matters which the court must take into account and leaves such matters to the courts to work out. The test, however, is clearly objective. In my judgment, the court should take into account external surrounding circumstances, such as the significance of the issues to a reasonable person in the position of the claimant. 21 The more difficult issue is whether the court should take into account matters such as the fact Mrs Gravgaard already had her hands full because she was a working mother and wife and was struggling hard, as the Recorder put it, ‘to keep her financial head above water’. These factors could make it more difficult for her to get advice (though, as regards Mrs Gravgaard’s financial position, no one has suggested that if she had sought to do so in 1988 she would not have been entitled to legal aid if she otherwise met the conditions for such assistance). Although Mrs Gravgaard does not rely on these matters, a court could not fail to observe the difficulty of her position and to admire her success at juggling the many pressures on her. She has survived her ordeal with her home and marriage intact, and she had gone on to further education and to hold public office in local government. Mr Gravgaard’s business continues to trade. 22 Section 14A(10) does not state that a person’s knowledge includes knowledge ‘which a reasonable person might be expected to acquire’ but rather that a person’s knowledge includes knowledge ‘which he [she] might reasonably be expected to acquire’ (contrast s.14A(7)). In my judgment, this choice of wording is significant. It means, in my view, that in general the court must have regard to the characteristics of a person in the position of the claimant, but not to characteristics peculiar to the claimant and made irrelevant by the objective test imposed by subs.(10). This conclusion is consistent with the general approach of s.14A. Section 14A attaches importance to the claimant having actual knowledge. Constructive knowledge applies only if the conditions of s.14A(10) are fulfilled. Moreover, as I pointed out earlier, s.14A(10) does not automatically impute the knowledge of an expert instructed by a claimant to the claimant.”
“On the judge’s findings as to when the claimants first knew that the Property had been sold, the starting date for the alternative three-year limitation period under s.14A(4)(b) and (5) would not have been before30 April 2015 . But the knowledge required for bringing an action for damages in respect of the relevant damage within the meaning of s.14A(5) includes knowledge which the claimants might reasonably have been expected to acquire from facts obtainable or ascertainable either by themselves or with the help of appropriate expert advice which it was reasonable for them to seek: see s.14A(10). The judge was therefore required to apply an objective test which meant that he was compelled to disregard the effect on Professor Gosden personally of his mother’s death and the other surrounding factors I have referred to and instead to have asked what a reasonable person in the position of the claimants would have done.”
“This was an extremely stressful and hectic period for me. I had been pursuing a court action (successfully) against a former acquaintance who proved to be a fraudster and had ‘borrowed’ my parent’s life savings to invest in a property deal that turned out to be a scam. I obtained judgment after a week long trial in Manchester, and the Defendant then sought permission to appeal which was refused in 2018. I also had to involve the police due to harassment from my opponent in that case. I then had to pursue a case in the Lands Tribunal to enforce a charging order securing the judgment. In 2019 I was evicted from my home in Leicestershire, and had to involve the police again due to harassment by the Landlord. I had to seek and renovate property for my parents as well as a new home for me and my sons. My sons were also taking their A level and GCSE exams, and having to deal with a host of issues with their father. Amongst assisting with several of these issues, on18 January 2019 [Mr Morgan] received a copy of [Mr Mahan’s] Form E from the Defendant.”
“I agreed to compile instructions to counsel for advice as to whether there was any prospect of reopening the divorce case. I agreed to fund written advice from a Family Law Barrister, and to compile instructions to the Barrister, as a favour to Ellen. This was on a completely pro bono basis …. As this was a pro bono exercise it had to be undertaken in my spare time and fitted into occasional free moments within my then very busy schedule.”
“I needed help to find an appropriate barrister … to speak to, and unfortunately my life circumstances in 2018 were even worse than when I was getting divorced, so I didn’t make a formal approach and, during that year, Mr Morgan and I fell out several times.”
‘149. … The very nature of the later advice [i.e. in May 2009] (discouraging as it was in relation to the likelihood of success on any attempt to re-visit the Settlement) was such that it raised a suspicion about the soundness of the earlier advice. Her then realisation that she was probably stuck with the terms of the Settlement (the “relevant damage” for section 14A purposes) gave her cause to consider that the reason for her predicament might lie in the negligence of the Firm which she now alleges. Her position was akin to the patient in Forbes v Wandsworth H.A. who knows the medical treatment has gone wrong. She knew enough for her to begin investigating whether or not the Firm was at fault.’