Davy v 01000654 Ltd [2018] EWHC 353 (QB)

[2018] EWHC 353 (QB)Case No CLAIM NO. B40BS025IN THE HIGH COURT OF JUSTICEVenue BUSINESS AND PROPERTY COURTS IN BRISTOLCIRCUIT COMMERCIAL COURTVenue Bristol Civil & Family Justice Centre2 Redcliff StreetVenue Bristol BS1 6GRDate 09/03/2018
Before
HH JUDGE RUSSEN QC(sitting as a Judge of the High Court)
Between
GRAHAM FRANK DAVYClaimant01000654 LIMITEDDefendant
Simon Howarth (instructed by Clarke Willmott LLP, Bath) for ClaimantGuy Adams (instructed by Capital Law LLP, Cardiff) for DefendantHearing Hearing date: 1 February 2018
Judgment ApprovedHH Judge Russen QC:Introduction
[1]By a Claim Form issued on 16 January 2015 the Claimant (“Mr Davy”) seeks damages for negligence or breach of contract, or for alleged breaches of duty that are said to be actionable under the provisions of the Financial Services and Markets Act 2000, for losses which are said to have arisen as a result of him making a switch of pensions in late 2001. He seeks to hold the Defendant (“the Company”) liable for those damages on the basis that, in the course of its business as an authorised independent financial adviser and acting through its Managing Director (Mr Pickering who had provided Mr Davy with financial over many years previously), it gave advice which led to that switch of pensions.[2]Mr Davy’s claim is for losses allegedly suffered as a result of the Company’s advice which led him to transfer out of his occupational pension scheme with British Airways (a defined benefit scheme) into a personal pension scheme with Skandia Life. The transfer took place on 2 November 2001 and the Company’s advice which preceded it is reflected in the terms of Mr Pickering’s lengthy letter dated 26 September 2001, referring to a 6 hour meeting with Mr Davy on 18 September 2001. Mr Davy had been employed by BA for many years and on 19 October 2001, and therefore between the date of that advice and the date of the transfer and at the age of 51, he took early retirement from his position as a senior flight engineer office (his normal retirement date at the age of 55 would have been 20th October 2004). A letter from Skandia Life dated 6 November 2001 showed the total transfer value to have been £610,398.84 (reflecting the then actuarial transfer value of his entitlements under the BA scheme) and confirmed that Mr Davy was, on the basis of that figure, able to take a tax-free cash sum of £146,068 and the minimum and maximum amounts of annual withdrawals. The Particulars of Claim state that in fact the sum of £484,378.55 was invested in the Skandia Life pension, £52,000 in a Sun Life Bond and £74,020.29 retained in cash.[3]On the application before me on which I now give judgment I am not concerned with the merits of Mr Davy’s Claim that he was negligently advised by the Company in relation to the transfer of his pension. It can, however, immediately be seen that this Claim of 2015 is a very stale one when seen in the context of advice given by the Company in September 2001 (or even its later advice of August 2006 also referred to in the Particulars of Claim). Its staleness is illustrated by the Company’s present, numerical style which is a reflection of the fact that, on 20 March 2012 and before Mr Davy issued his Claim, the Company – until then incorporated under the name of Heather Moor & Edgecomb Limited – was dissolved, having previously been struck off the Register of Companies. As I understand the position, the Company had ceased to carry on business at some point before 2012 as is illustrated by the fact that in 2011 Mr Davy was given advice (which I mention below) by a representative of a different company which had taken over its client base.[4]The Company was restored to the Register, on the application of Mr Davy, with effect from 15 July 2014 by an Order made in the Cardiff District Registry. Two days later, by a Standstill Agreement dated 17 July 2014 (“the Standstill Agreement”), Mr Davy and the Company agreed to suspend the further running of the limitation period for a claim by Mr Davy until the earlier of three alternative specified events (together serving to define “the Period” of standstill under the agreement), the last of which was the expiration of 6 months from the date of the agreement.[5]It will be noted that the Claim was issued at the very end of that 6 month period provided for by the Standstill Agreement.

The Application

[6]By an Application Notice dated 12 January 2017 (“the Application”) the Company seeks, amongst other relief which is no longer needed, an order that:
“The Claimant’s Particulars of Claim dated 14 January 2016 be struck out pursuant to CPR 3.4 because it discloses no reasonable grounds for bringing the claim and/or is an abuse of process of the court and/or summary judgment under CPR 24 on the whole of the claim or such parts as the court shall think fit (“strike out/summary judgment application”).”
[7]It is common ground between the parties that, given the lapse of over 14 years between the pension switch and the commencement of these proceedings, the unqualified application of the primary 6 year limitation period under section 2 or section 5 of the Limitation Act 1980 would create no difficulty in determining the Application in the Company’s favour. Instead, they recognise that the argument between them turns upon Mr Davy’s ability to overcome a limitation defence by relying upon the alternative 3 year period under section 14A or to make out a case of deliberate concealment under section 32 of the Act. It is important to note that Mr Davy’s position on both aspects embraces not just a complaint about allegedly negligent advice given by the Company in September 2001 but also further advice given by it in August 2006 (through its Mr Marston-Smith) which is also alleged to have been deficient. I address the nature of Mr Davy’s case in relation to the 2006 advice, and the extent to which it is said to go beyond an alleged act of deliberate concealment of a claim over the earlier advice of 2001, in the context of analysing below the scope of the Standstill Agreement.[8]At the hearing of the Application before me on 1 February 2018 most of the submissions were devoted to the question of when it was that Mr Davy acquired the knowledge which triggered the starting date for the alternative 3 year period under section 14(A)(5). For the sake of convenience and the purposes of this judgment I will describe the state of knowledge required by the section as “section 14A knowledge”.[9]On a summary judgment application the onus is upon the Company, as applicant, to show that Mr Davy has no real prospect of establishing at any trial that he lacked that knowledge. As appears from the summary below of the principles governing both aspects of the limitation issue, the onus would be upon Mr Davy at any trial, or a trial of any preliminary issue on the point, to establish that he can take advantage of either section 14A or section 32 of the Limitation Act 1980 in surmounting the Company’s obvious defence that, relying upon the primary limitation period of 6 years from the accrual of the cause of action in 2001, the Claim was well and truly statute barred by the time of its commencement and indeed by the time the parties entered into the Standstill Agreement in July 2014. Of course, on the abuse of process aspect of the Application the onus is firmly upon the Company to make out the grounds for summarily striking out the Claim. On that aspect the Application adopts the language of CPR 3.4(2)(a) and (b): no reasonable grounds for bringing the claim and/or abuse of process.

The Appropriateness of a Paper Determination

[10]Mr Davy’s counsel, Mr Simon Howarth, submitted that it was not appropriate to attempt to resolve the limitation issues on paper and that the court was incapable of deciding it properly without the benefit of hearing his client’s testimony. In saying the Company had chosen the wrong procedural route, he had in mind the alternative of a trial of a preliminary issue of the kind that I see took place in some of the cases cited to me in connection with the issues under section 32 and/or section 14A (though I also note some others involved a summary determination on paper). To illustrate this general point, Mr Howarth highlighted some observations I had made during the earlier submissions of Mr Guy Adams, for the Company, as to what was perhaps to be read into certain items of contemporaneous correspondence (e.g. a letter dated 2 September 2003 from Mr Collyer of the Company which might perhaps have been read by Mr Davy at the time as an indication that his risk categorisation by the Company was other than “medium”). Mr Howarth said it would be wrong to draw debatable inferences against his client on this Application.[11]As for the abuse of process element of the Application, Mr Howarth submitted that this should be seen for what it was, namely (as he put it in his skeleton argument) a thinly disguised attempt to run a pale version of the limitation defence where none existed under statute. The suggested inappropriateness of the procedure adopted by the Company therefore carries through to that aspect of the Application to the extent there is any such overlap of argument. But Mr Howarth also submitted that, to the extent the abuse of process contention rested upon something more than the lapse of time prior to the commencement of the proceedings, it was without substance on the facts as those appeared on the written evidence on the Application.[12]The principles applicable to the suggested determination of a claim on paper, on a summary judgment application, are well-known. They were helpfully summarised by Lewison J as he then was in Easy Air Limited v Opal Telecom Limited [2009] EWHC 339 (Ch), at [15], who expressed himself in terms appropriate for applications by defendants. His summation, distilled from earlier authority, has been endorsed in a number of subsequent cases (including by the Court of Appeal in AC Ward & Son v Catlin (Five) Limited [2009] EWCA Civ 1098, per Etherton LJ) though, perhaps less helpfully given the significance of such applications in daily court life, I see that reference to it no longer survives in the notes on summary judgment applications in more recent editions of the White Book. Although the Easy Air decision itself was not cited to me at the hearing, counsel had well in mind the well-known principles enunciated within it. Those principles are to be considered in the context of a paper determination where the overall burden rests upon the applicant for summary judgment to establish that the respondent has no real prospect of succeeding in the litigation or, alternatively, upon the relevant issue identified by the application. It is the applicant who must, in effect, “self-certify” that essential premise of the application by complying with the requirements of the Part 24 Practice Direction and confirming his belief upon that basic point (in addition to a disclaimer of knowledge of any point which compels the need for a trial).[13]In applying the relevant principles to the summary judgment limb of the Application I therefore bear in mind the warning against conducting a mini-trial and also any reasonable prospect there might be of further evidence, beyond that filed on the Application, later coming before the court. Those two propositions affirmed by the Easy Air decision feed into the further point that, even in cases where the summary judgment application does not appear to signal the existence of any obvious conflict of fact or an issue for trial of any great complexity, the court should be wary of granting summary judgment where reasonable grounds exist for believing that a fuller investigation at a trial (or, as appropriate, a trial of a preliminary issue) might well produce a different outcome between the parties. However, against this guidance which might loosely be described as amounting to giving the respondent the benefit of any reasonable grounds for doubt, the same principles also sound a note of caution against undue timidity in engaging with the application and the evidence filed on it. Caution which is justified by the need for the respondent to engage with the “realistic” rather than the “fanciful” and for the court to test whatever factual assertions he is making against such contemporaneous documents as are before it.[14]Given that the hearing was listed for one day, Mr Howarth engaged with the merits of the summary judgment application just as he engaged with the merits of the strike-out application to the extent it rested upon matters other than the delay in bringing the Claim. But he did so without prejudice to his over-arching submission that the court knew enough on the application to reach the conclusion that it was not appropriate to entertain the summary judgment application on the issue over the existence or absence of his client’s section 14A knowledge.[15]In my judgment the points made by Mr Howarth do not militate against the court engaging with the summary judgment application as a matter of principle. On the contrary, his points - which include within them the admonishment against conducting a mini-trial and any “benefit of the doubt” type arguments which may open to Mr Davy - indicate that the court should proceed to determine the Application and, to the extent that any one or more of them may be found to be persuasive, do so in his favour. Recognising that part of the Application brings into focus the prospects of Mr Davy establishing, at any trial, a negative – i.e. the continuing absence of section 14A knowledge as at a certain date – the overall burden of persuading the court to grant the application nevertheless lies upon the Company. Bearing in mind that, once in focus, Mr Davy’s case on the absence of section 14A knowledge (or his positive assertion that section 32 concealment took place) requires the Company to establish that it does not even carry a degree of conviction to justify it being described as realistic as opposed to fanciful, the protection for Mr Davy against an unworthy or “inappropriate” application lies within the CPR 24 test itself. And the test to be met by the applicant under CPR 3.4 no less onerous (if not more so).[16]However, I recognise there may well be categories of case where the outcome turns upon the yet-to-be-tested state of a party’s knowledge which are plainly not appropriate for summary determination under Part 24. Allegations of deceit or other fraud, uncorroborated by any contemporaneous documents, might be examples where the need for the applicant to self-certify the basis of the application in accordance with the Practice Direction should give pause for thought. And, although section 14A knowledge includes an objective element (albeit one geared to the position of the particular claimant as I explain below) I can also see that there might be cases where “the facts” by reference to which the existence of such knowledge is asserted by the defendant are too hotly contested by the claimant to be properly decided on paper.[17]There is in evidence on this Application a significant amount of contemporaneous documentation (much of it disclosed by Mr Davy) together with two witness statements from Mr Davy on the point, and one from his wife. None of the evidence before me indicates that there is any dispute of primary fact over the happening of an event which, if established, could be crucial in triggering the starting date under section 14A(5). Instead, the competing evidence appears largely to comprise inference or even argument as to what conclusions might have been drawn from the performance of the Skandia pension, over time, when viewed against the Company’s initial advice (I note the Company’s witness statements on the Application have been made by its solicitor). In my judgment the rival contentions in this case about the existence or absence of section 14A knowledge can properly be considered and determined in accordance with the Part 24 benchmark as illuminated by the principles distilled in the Easy Air decision.[18]I have already noted that some of the cases cited to me in relation to section 14A knowledge and/or section 32 concealment did involve a determination on an application for summary judgment or strike-out: see Williams v Lishman Sidwell, Campbell & Price Ltd; Sheldon v Outhwaite; Booker v RT Financial Services; and Arcadia v Visa. In one of those cases - Booker v RT Financial Services [2016] EWHC 3186 (Ch), [24]-[27] – the claimant urged upon the court the same authority as now relied upon by Mr Howarth before me in submitting that the issue had to be investigated at a trial or preliminary trial: Iron Trades Mutual v JK Buckenham Ltd [1990] 1 All ER 808, 824J. I would paraphrase what Master Matthews (as he then was) said in Booker by concluding that the fact-sensitive nature of any issue over section 14A knowledge in a particular case must carry through to the question as to how, procedurally, it is to be fairly resolved in that case and to any decision that it is appropriate to decide it summarily.[19]Recognising that some other cases within those cited to me did involve a determination of the point at a trial of a preliminary issue (Haward v Fawcetts and Jacob v Sesame are examples where that course was adopted) I do not accept Mr Howarth’s submission that the Application should, in effect, fail in limine because that other procedural route was open to the Company. In my judgment, cases involving issues over section 14A knowledge or section 32 concealment are not, at least as a matter of principle, outside the proper remit of CPR 24 and some of the recent reported decisions demonstrate as much.

Strike Out: No Reasonable Grounds for Bringing the Claim and/or Abuse of Process

[20]The Company’s point of attack on this aspect of the Application is directed at Mr Davy’s Particulars of Claim (the relevant statement of case for the purposes of CPR 3.4). Those Particulars of Claim are dated 14 January 2016 and they were therefore served one year later than the date of the Claim which, as I have observed, was itself issued at the very end of the Period allowed by the Standstill Agreement.[21]Although the Company invokes the ground in CPR 3.4(2)(a), there is on my reading of the statement of case nothing within it which is repugnant or deficient when viewed from the perspective of it revealing a viable cause of action. I mention below, in the context of the consideration of the subject matter of the Standstill Agreement, the uncertainty as to whether the Particulars of Claim, in referring to further alleged negligence of the Defendant in 2006, do in fact identify a loss which is not referable back to the 2001 pension switch and the loss of an opportunity to bring a timely claim in relation to the earlier alleged negligence leading to that switch. But that loss of a chance claim (if it be only that) is, in my judgment, properly formulated in the pleading. Nor does the Company identify in its evidence or (perhaps more properly) Mr Adams’ skeleton argument any reasons why the first ground of attack is said to be justified. I note that in February 2017 the Company served a Defence to the Particulars of Claim, albeit in the context of an intimated strike-out application which had been held in abeyance while the implications of the limitation direction mentioned below were worked out through an appeal. The Defence took the limitation defence but no other objection to the Particulars of Claim on grounds which did not relate to the merits. In my judgment, the Company’s case that the Particulars of Claim disclose no reasonable grounds for bringing the Claim is not made out.[22]The evidence and argument in support of the strike-out application in fact reveal that its true emphasis is upon the alternative ground that the Particulars of Claim constitute or manifest an abuse of process: CPR 3.4(2)(b). The Company’s contention here begins with the complaint that, despite knowing (on his own case in relation to section 14A knowledge) since July 2011 that he had a potential claim against the Company in respect of his pension switch, it was only in December 2016 that Mr Davy actively sought to pursue these proceedings. The date of December 2016 marks the point when Mr Davy opposed a further stay of the proceedings. Up until that time these proceedings (commenced in January 2015) had been consumed by(1) a direction made by HH Judge Keyser QC on 14 April 2015 (arising out of the fact that the Company had been dissolved and needed to be restored to the register) that the period between 20 March 2010 and 1 July 2014 was not to count for limitation purposes;(2) an appeal to the Court of Appeal by the Company, against that limitation direction, on which it achieved success under a decision given on 24 January 2017; and(3) the parties agreeing, in May 2015, that the proceedings should be stayed until January 2016, if necessary, while that appeal was pursued (the Order by consent being made by HH Judge Havelock-Allan QC on 13 May 2016). In the event, the prosecution of the Claim was suspended beyond January 2016 (in circumstances where the appeal was not heard until October of that year and judgment not given until January 2017) by an Order in June 2016 extending the time for service of the Defence and, later, by the Company’s successful application for a further stay pending the determination of the appeal when Mr Davy had refused to consent to one.[23]In these circumstances the Company contends that the consequence is that a claim which was already stale by July 2011 has been very substantially further delayed. Its evidence on the application complains about Mr Davy having used up time by pursuing the “satellite matters” of a claim before the Financial Ombudsman Service followed by one under the Financial Services Compensation Scheme and what it describes as his misguided application for the limitation direction. It also refers to him then entering into the Standstill Agreement and being content (at least for the greater part of the period) to see the Claim stayed pending the appeal. The positive steps of issuing the Claim on January 2015 and serving Particulars of Claim one year later are described by the Company as protective measures which provide no evidence of an appetite to pursue matters with reasonable diligence. The Company also remarks upon the fact that Mr Davy has not been forthcoming in producing relevant documentation which has meant that it had to make a formal request for some of it while he says that other parts of it will not be disclosed by him at this stage.[24]In submitting that these matters amount to an abuse of process which justifies the striking out Mr Adams referred me to the evidence about the current ill-health of the Defendant’s representative, Mr Pickering, who provided the advice to Mr Davy in 2001. The Company says that its case has now irrevocably been prejudiced by that witness’ inability to recall the events of 2001. Mr Howarth, on behalf of Mr Davy, does not contest the conclusion drawn from that evidence but he does point out that the representative wrote very comprehensive letters at the time, summarising the advice given and the circumstances in which it was given to his client, and that these contemporaneous records operate to fill satisfactorily what would otherwise be evidential shortcomings in the Company’s case that could be said to produce unfairness to it as a litigant. I would also add that, even without any medical issues operating to cause particular difficulties for memory recall, there must be a question mark over the ability of any witness to recall at a trial some 17 years or so later the advice given to a client by him (in what for him was his day-to-day business as an independent financial adviser) without reference to such contemporaneous documents; even where, as here, the client was by then a long-standing one who he had been advising since 1977. But I recognise that the medical evidence in this case clearly indicates that the Company’s witness would be unlikely to be assisted in his recall by the prompt of the contemporaneous documents.[25]Those last observations bring me to the decision in Re Farmizer (Products) Ltd [1995] 2 BCLC 462 (Blackburne J) and [1997] 1 BCLC 589 (Court of Appeal) upon which Mr Adams relied on this part of the Application. That is a pre-CPR authority for the proposition that (at least in a case such as the present where there is no question but that any fresh claim the claimant might then consider bringing would be statute barred) inordinate and inexcusable delay in prosecuting the claim may justify it being struck out where the delay has given rise to a substantial risk that it is not possible to have a fair trial of the issues, or is such as to be likely to have caused other serious prejudice to the defendant. In relation to that second element as to the causative effect of the delay, Blackburne J noted that loss of recollection is a progressive matter and that authority supported the conclusion that it might not be practicable or satisfactory to attempt to allocate particular prejudice, through failing memory, to the period of delay in question. Instead, the court may properly draw an inference that the further delay in the proceedings has engendered such prejudice. Blackburne J inferred that more than minimal prejudice had been caused by the culpable delay of 18 months (out of a total 9 years since the relevant events occurred) and his decision was upheld on appeal on the basis that “additional prejudice occasioned by inordinate and inexcusable delay following prejudice caused by the late commencement of proceedings need only be more than minimal” ([1997] 1 BCLC 589, 602a per Peter Gibson LJ).[26]Both the first instance and Court of Appeal judgments in Farmizer drew upon what in those pre-CPR times was the well-known and frequently cited decision of the House of Lords in Birkett v James [1977] 2 All ER 901. Birkett v James was a “want of prosecution” case which illustrated the court’s powers under the then rules (most obviously RSC Ord. 25 r. 1(4)) and its inherent jurisdiction to dismiss an action for want of prosecution where there had been inordinate and inexcusable delay in the prosecution of that action which, to summarise, had probably operated to prejudice a fair trial.[27]As appears from the notes in the current White Book, “CPR 3.4(2)(b) is not strictly relevant where the complaint is one of delay rather than a complaint as to the form or content of a statement of case”. For my part, I would have thought that the more obvious ground for traction in striking out in circumstances of undue delay would be CPR 3.4(2)(c) - a failure to comply with a rule, practice direction or court order – just as RSC O. 25 r. 1(4) was concerned with a failure to take out a summons for directions. Within the much more tightly case managed régime created by the CPR (in place of the Rules of Supreme Court) such delay is likely to trigger the trip wire under that limb of the rule sooner rather than later. As the editors of the White Book suggest, the language of that limb is far better suited to consideration of conduct (“a failure to comply”) as opposed to the analysis, under the previous limb, of a particular statement of case to see whether, as a document filed at court, it constitutes an abuse of process. As the circumstances of the present case show, the service of the particular statement of case under attack is likely to pre-date the delay relied upon (or much of it); and, although the body of the Application Notice identifies the Particulars of Claim as the relevant target, the Company in truth wants the whole Claim struck out as is apparent from the draft Order attached to it.[28]Wherever the precise place may be within CPR 3.4 for a Birkett v James type case, the same notes in the White Book cite more recent authorities which support the conclusion that excessive delay coupled with some additional factor can constitute an abuse of process. See Aktas v Adepta [2010] EWCA (Civ) 1170, at [72] per Rix LJ, for more recent recognition, in the context of considering whether a second action is an abuse of process when the first has been struck out, of the point that that abuse of process can include a want of prosecution as well as a wholesale disregard of the court rules. So far as the additional factor in the present case is concerned, I would accept that the medical evidence presented by the Company is sufficient to meet the fairly low threshold set by the Farmizer decision even though it is clear that the Company’s witness was encountering problems with his memory before January 2015. However, in my judgment, the problem for the Company lies not with the establishing the obvious difficulties in the way of litigating over events at this distance in time but in attributing those difficulties to culpable (or relevant) delay on the part of Mr Davy.[29]I remarked to Mr Adams during the course of argument (as is apparent from the language of the CPR which is directed to the striking out of statements of case) that an abuse of process argument presumes the existence of proceedings to be abused. I did so because many of the matters of which the Company complains (as summarised in paragraph 23 above) pre-date the issue of the Claim. If the complaint about Mr Davy’s pursuit of such matters is that they occasioned unnecessary delay then that is something regulated only by the application of the relevant limitation period (whether primary or alternative). If, applying the limitation period, the legal process can nevertheless be shown to have been commenced within time then, at the point of issue, neither it nor the claimant’s earlier conduct in relation to it can be categorised as an abuse of process. Mr Howarth had a further fundamental point in rejecting the charge of abuse of process, which he expressed pithily at the outset of his oral submissions, and which he says applies to matters since the commencement of proceedings and about which the Company complains (and also to the pre-commencement Standstill Agreement). He points out that, like the Standstill Agreement, the post-issue delay of which the Company complains was almost entirely consensual in that it was agreed between the parties that the proceedings should be stayed while the issue over the limitation direction was taken on appeal. And, as he further observes, the final period of stay (while the Court of Appeal’s judgment was still awaited) was granted on the Company’s application when Mr Davy had refused to agree to it.[30]I accept this submission of Mr Howarth in response to the strike-out application. His client has not been guilty of any misuse of the court process. True it is that his client initiated the application for the limitation direction, on which he was ultimately unsuccessful, but the Company did not have to agree or propose stays pending the appeal on that. Had it not done so then Mr Davy would have been forced either to press on with the Claim, pending the appeal, or to have applied for a stay in the face of the Company’s (presumed) protest that there had already been delay enough. But in fact it made no such protest at the time and it cannot now present an argument as if it had done so. To express Mr Howarth’s point another way from the perspective of both potentially applicable limbs of CPR 3.4 - including the one which is not identified by the Application (3.4(2)(c)) - there has been anything but a failure by Mr Davy to comply with the court orders as they were in fact made after May 2015.[31]That same basic observation in my judgment also provides the answer to the Company’s complaint about Mr Davy’s conduct, within the proceedings, so far as the allegedly partial and reluctant disclosure of relevant documents is concerned. Mr Howarth referred me to a letter from the Company to Mr Davy dated 18 October 2011 which stated that “the team have successfully dug into the Company’s archives and retrieved all the documents and files concerning your decision to opt for the Cash Equivalent Transfer Value in lieu of pension.” Whether or not that apparently successful and comprehensive search for relevant documentation would provide an answer in respect of Mr Davy’s own disclosure obligations, however they might come to be formulated, the simple point is that he is not yet in breach of any court order in relation to disclosure.[32]For these reasons I reject the Company’s application to strike out the Claim.

Summary Judgment: Limitation

[33]I have already noted that it is common ground between the parties that the issue of whether or not the January 2015 Claim is statute barred turns on the questions of section 14A knowledge and section 32 concealment.[34]As I explain next in addressing the Standstill Agreement, the critical date for working back 3 years for testing Mr Davy’s position under section 14A is not the date of the Claim but the date of the Standstill Agreement. That exercise brings into very sharp focus the fact that in July 2011 Mr and Mrs Davy had a meeting with Mr Rodney Ings, a financial adviser employed by Sanlam Wealth Planning UK Ltd (who had acquired the Company’s client base upon it ceasing business). Mr Howarth submits that his client did not acquire section 14A knowledge, for a claim in respect of either the 2001 advice or the 2006 advice, until that meeting. He also says, for the purposes of his client’s case under section 32, that the July 2011 meeting marked the revelation that the Company’s further advice of 2006 constituted a piece of deliberate concealment of a claim in respect of the earlier advice.[35]For the purposes of the issue under section 14A the timing could not be more acute. Working back 3 years from the date of the Standstill Agreement produces the date of 17 July 2011. The meeting between Mr and Mrs Davy and Mr Ings took place on 19th and 20th July 2011. If Mr Howarth is right in his submissions on section 14A then Mr Davy just creeps into the applicable 3 year period. The timing is less fine for the purposes of section 32, as discovery of the 2001 cause of action (the only cause of action in relation to which that section is invoked) only in July 2011, as a consequence of prior concealment, would mean that Mr Davy had a further 6 years from that date in which to bring his Claim: section 32(1). The Standstill Agreement (and consequential “know by” date)[36]The parties, by their skeleton arguments, indicated that they were in agreement that the critical date by which Mr Davy had to establish the continuing absence of section 14A knowledge was 17 July 2011, that being 3 years before the date of their Standstill Agreement. If, by the date of that agreement, the alternative 3 year limitation period had already expired and a complete limitation defence (extending to that fall-back alternative period for bringing a claim) had thereby crystallised before that date then there was no ongoing limitation period to “suspend”. Any such accrued limitation defence would not be caught by the essential promise in clause 2.1(a) of the Standstill Agreement; that “no party shall raise any Limitation Defence that relies on time running in ….. the Period”. The 3 year period for section 14A purposes therefore involves counting back not from the date of issue of the Claim but from the date of the agreement which preserved the time in which it might be issued.[37]Prior to the hearing the parties appeared to have assumed that 17 July 2011 (3 years before the date of the Standstill Agreement) was the critical date, for section 14A knowledge purposes, for all and any negligence claims identified in Mr Davy’s Particulars of Claim. The way that Mr Howarth, both in his skeleton argument and oral submissions, presented the events of August 2006 - analysed as a further piece of actionable negligence as opposed to his client’s alternative treatment of it as an act of concealment of the earlier alleged negligence in 2001 – was as a failure of the Company to advise Mr Davy to seek independent advice in relation to the 2001 pension switch, leading to the loss of a chance to sue the Company at that time.[38]However, having considered the terms of the Standstill Agreement before the hearing, I raised with counsel the question of whether its language in fact provided for a suspension of the limitation period for any claim for negligence claim arising in 2006. If a claim in respect of alleged negligence in 2006 instead fell outside the scope of the Standstill Agreement then, for the purposes of these proceedings issued in January 2015, that claim would plainly be statute barred, whether the applicable period is 6 years from August 2006 or (on Mr Davy’s own position on the section 14A issue) 3 years from the July 2011 meeting. I should note that there is no suggestion that the 2006 cause of action might be saved by the alternative application of section 32. Mr Davy categorises the advice then given as an act of deliberate concealment in relation to the earlier advice but does not and cannot sensibly allege that any independent negligence claim arising out of whatever was said or left unsaid in August 2006 was itself the subject matter of deliberate concealment.[39]I raised the question because the Standstill Agreement operated to suspend any then unexpired limitation period “in connection with the Dispute”. For these purposes “the Dispute” was defined in the first recital as “any claim arising out of or connected with advice provided by [the Company] to [Mr Davy] in 2001 to transfer out of an occupational pension scheme with British Airways into a personal pension scheme with Skandia Life.” On the face of it, a claim arising in 2006 in respect of a failure then to advise Mr Davy to seek separate advice about the 2001 transfer was not obviously within the scope of “the Dispute”.[40]Having raised the question and given counsel time to reflect upon it, their submissions were perhaps predictable (given their clients’ respective interests) but equally succinct and helpful. In his submissions that the Standstill Agreement was confined to the 2001 claim Mr Adams said its language was clear and bore the narrower, first blush meaning mentioned above. However, he also drew my attention to the letter before action dated 1 July 2014 which referred only to “a claim for negligence for advice received in 2001 to transfer out of the occupational pension scheme” and which, he submitted, resolved any ambiguity there might be in the Company’s favour. Mr Howarth, on the other hand, emphasised the language of “arising out of or connected with” the advice given in 2001, and submitted that the failure to advise in August 2006 (with a recommendation to seek independent advice upon the 2001 switch) fell within the definition of “the Dispute”.[41]In order to resolve this issue as to the scope of the Standstill Agreement it is necessary to consider how Mr Davy’s claim based upon the “non-advice” (my shorthand phrase) in August 2006 is pleaded. Mr Howarth is right to say that the pleaded case in relation to the advice given in August 2006 (on that occasion by Mr Marston-Smith on behalf of the Company) includes the complaint that Mr Davy was not advised to seek independent advice about the reasonableness or otherwise of the advice given in September 2001 (by Mr Pickering), so that he lost the opportunity to bring a claim in respect of that allegedly flawed, earlier advice. Accordingly, should any such claim in respect of the 2001 advice now be statute barred, which of course he disputes, Mr Davy has a claim for loss of a chance, being (to quote from the section “Causation, Loss and Damage” in paragraph 37 of the Particulars of Claim) “a cause of action against the [Company] for the loss of his primary claim, the damages recoverable pursuant to which cause of action are to be calculated as pleaded [for that primary claim]”.[42]This “loss of a chance” claim arising in August 2006 (on which the words just quoted might perhaps also cover the alternative of a recovery of a percentage of the damages that might have been recovered under a timely claim brought in respect of the 2001 advice) sits alongside paragraphs in the Particulars of Claim which summarise the advice which was given in August 2006 (and to the giving of which the same pleaded contractual, common law and fiduciary duties held against the 2001 advice are said to have applied at that later date). This includes Mr Marston-Smith’s observation that Mr Davy’s substantially equity-based portfolio was “quite an adventurous one” and ought to be “re-organised” so as to reduce the risks to which it was exposed; and that Mr Davy ought to increase the portfolio’s percentage holding in corporate bonds and real property. However, although this positive aspect of the August 2006 advice is alleged (paragraph 33.15) to have been marked by a general failure “to act with the skill and care reasonably to be expected of a competent financial adviser”, there is no specific allegation that it (or any part of it) was wrong, nor that by acting on it (if indeed he did) Mr Davy suffered loss. On a careful analysis of Mr Davy’s pleaded case in relation to August 2006, it seems clear that the only complete cause of action (whatever the merits of it might be) is that arising out of the oft-repeated “failure” of the Company to advise Mr Davy of the flawed nature and consequences of the earlier 2001 advice, or to recommend that he should seek independent advice about it.[43]That alleged negligence by omission in August 2006, leading to the loss of a chance to bring a timely claim for damages in respect of the 2001 advice, is also to be distinguished from Mr Davy’s categorisation of the same episode as an act of “deliberate concealment” for the purposes of section 32 of the Limitation Act 1980: see the Particulars of Claim at paragraph 32 (where the inference is drawn that Mr Marston-Smith knew that the earlier advice had been deficient and deliberately chose not to inform Mr Davy that it was) and paragraph 38.1 (where section 32 is pleaded in anticipation of a limitation defence by the Company). Clearly, the section 32 element of the pleading in relation to the advice of 2006 is irrelevant to my consideration of the scope and application of the Standstill Agreement. Section 32 does not create any cause of action (or “claim” for the purposes of that agreement) but, where it is triggered, instead operates to extend the time for bringing a claim in respect of one. And, as explained in paragraph 55 below, the ingredients for a successful plea of deliberate concealment within the meaning of the section raise for any claimant a quite different (and more onerous) standard of culpability than that required to be established under the duties pleaded by Mr Davy in support of his claim.[44]With this basic analysis of Mr Davy’s pleading in relation to August 2006 in mind, the question for the court is whether the alleged negligence through a failure to advise is something that can properly be said to have given rise to a claim (for loss of a chance) “arising out of or connected with advice provided by the Company to Mr Davy in 2001” and for the pursuit of which the Standstill Agreement might operate to preserve the limitation period.[45]In my judgment it can properly be so categorised. Although I would see real force in any argument that, on Mr Davy’s own case, the 2006 advice was entirely disconnected from that given in 2001 – to the point that it is alternatively analysed by him as an act of concealment of the alleged wrongdoing within the former – the point to be borne in mind is that the Standstill Agreement defines “the Dispute” not by reference to trigger events for liability but, instead, by reference to “claims”. I think it is fair to say that the 2006 advice had nothing to do with the advice given in 2001. That is in fact the gravamen of Mr Davy’s case about the later advice. But the point remains that his claim which is said to arise out of the negligent omission in August 2006 is one that “arises out of” and/or is “connected with” the 2001 advice upon the pension transfer. So much so that the lost opportunity which is said to have been the consequence of that omission is one described in terms of his inability to make an effective claim in respect of the 2001 advice and (as appears from paragraph 37 of the Particulars of Claim quoted above) the recoverable damages are said to derive from the loss occasioned by the pension transfer which resulted from that advice.[46]Accordingly, I conclude that the Standstill Agreement is capable of applying to both Mr Davy’s claim in respect of the 2001 advice and his claim (which, as I have sought to explain, is only that loss of a chance claim) in respect of the 2006 advice.[47]Whether the Standstill Agreement in fact operated to ensure that these proceedings, commenced in January 2015, were brought in time therefore rests upon the issues as to(i) when Mr Davy acquired section 14A knowledge for the purposes of the causes of action arising in 2001 and 2006 and/or(ii) in relation to the direct claim in respect of the 2001 advice, whether there was deliberate concealment within the meaning of section 32. If, by either route, Mr Davy can get to a start date that is within either 3 years (for the purposes of section 14A) or 6 years (for the purposes of section 32) before the date of the Standstill Agreement then the provisions of that agreement will carry him over the line in his argument against his claims being statute barred.[48]Although Mr Davy relies upon section 14A and section 32 in the alternative, on his case each provision gets him to the same starting date for the commencement of the limitation period: the date of the meeting with Mr Ings on 19-20 July 2011. In summary, his position is that he lacked section 14A knowledge before that meeting because there had been deliberate concealment by the Company in 2006 which operated to perpetuate a position of prior ignorance on his part of the facts to support a claim (in respect of the 2001 advice) which thereafter continued until the July 2011 meeting.[49]The effect of him issuing his Claim within the Period under the Standstill Agreement is such that Mr Davy has no need to invoke the full 6 year period from July 2011 that would otherwise flow from his argument on section 32. Nevertheless, and despite the fact that section 32 has no application to any cause of action arising in August 2006, it is sensible to address the section 32 issue first. It is based upon an event earlier in time than the July 2011 meeting and, in my judgment, it must follow (at least in the context of a summary judgment application) that if Mr Davy can establish a real prospect of succeeding at trial in his contention of deliberate concealment in 2006 then that is likely to influence the court in its decision as to whether and how he might be said to have acquired section 14A knowledge in the years following.[50]In addressing the limitation issues in this order I recognise that it is the Company’s case that Mr Davy had section 14A knowledge from around 2003, and in any event long before 2011, so potentially before the deliberate concealment in 2006 which Mr Davy asserts. Mr Adams submitted by reference to Sheldon v Outhwaite [1996] 1 AC 102, 144B, that once a claimant acquires the requisite section 14A knowledge in respect of the claim there is no scope for section 32 thereafter to operate to so as to re-trigger the commencement of the limitation period. That is obviously right. However, as Rix LJ observed in Williams v Lishman, Sidwell, Campbell & Price Ltd [2010] EWCA Civ 418, [48], by reference to the provision in section 32(5), section 14A does not apply to any action to which section 32(1)(b) applies, so that there are two separate statutory regimes, but “in a case of deliberate concealment section 32 takes precedence.” On Mr Davy’s case, the deliberate concealment of the 2001 cause of action must relate back to 2001 (the accrual date which was at the heart of the debate in Sheldon v Outhwaite on which the majority in the House of Lords clarified the effect of section 32 in the case of later concealment) even though the first and only pleaded act of deliberate concealment, based on inference, took place in August 2006. Although the picture is somewhat clouded by that later event being alleged also to have given rise to a further cause of action (not itself concealed and geared to the original 2001 loss) it is therefore sensible to consider the potential effect of the two discrete sections from the perspective of Mr Davy’s case. On his case, section 32 has the potential to be “in play” at all times until July 2011 (with section 14A banished to the sidelines in accordance with section 32(5)) so that, quite independently of the Standstill Agreement, the Claim of January 2015 was brought well within time. Section 32[51]Section 32(1)(b of the Limitation Act 1980 operates to postpone the running of the primary limitation period in a case where “any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant.” The period does not begin to run until the claimant has discovered the concealment or could with reasonable diligence have discovered it. Section 32(2) provides that the deliberate commission of a breach of duty in circumstances where it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.[52]As is to be expected where the provision may be relied upon to overcome a limitation defence based upon time running from the accrual of the cause of action in question, the onus is upon the claimant to make out the case for it applying: Cave v Robinson [2003] 1 AC 384, [60] per Lord Scott.[53]Authority has clarified what is meant by “any fact relevant to the plaintiff’s right of action” in section 32(1)(b). In Williams v Lishman, Sidwell, Campbell & Price Ltd, at [38], Rix LJ observed that the phrase has a more limited meaning than might be supposed in that it extends only to those facts which are necessary for the ability to plead the cause of action in question. He referred to his earlier observations in AIC Ltd v ITS Testing Services (UK) Ltd (The “Kriti Palm”) [2006] EWCA Civ 1601 that this “statement of claim” test was directed to the claimant lacking sufficient information to plead a complete cause of action as a result of the defendant’s deliberate concealment. The judgment of Elias LJ, at [62] likewise confirmed that the statement of claim test requires “that in order to be a “relevant fact” within the meaning of s. 32, any fact which is concealed must be a fact which should be pleaded in a statement of claim.” It necessarily follows that an allegation of prior deliberate concealment will clearly fall to be considered by what the claimant does later plead as a necessary and proper element of his claim, once known. Although Mr Davy’s case in relation to the successive causes of action in 2001 and 2006 raises (conceptually at least) claims to different losses at different times, the obiter observations made by Rix LJ (at [50]) and Elias LJ (at [71]) about a potential qualification to the statement of claim test – where the first known loss may not have been worthy of proceedings brought in respect of a later and larger concealed loss – are of no significance in this case.[54]In Arcadia Group Brands Ltd v Visa Inc [2015] EWCA Civ 883, at [49], the Chancellor (Sir Terence Etherton) summarised the position in relation to section 32(1)(b) by reference to earlier authority as follows:
“Johnson, the Mirror Group Newspaper case and The Kriti Palm are clear authority, binding on this court, for the following principles applicable to s 32(1)(b) of the 1980 Act: (1) a “fact relevant to the Plaintiff's right of action” within s 32(1)(b) is a fact without which the cause of action is incomplete; (2) facts which merely improve prospects of success are not facts relevant to the Claimant's right of action; (3) facts bearing on a matter which is not a necessary ingredient of the cause of action but which may provide a defence are not facts relevant to the Claimant's right of action.”
[55]For section 32 to apply in such a case the fact which the claimant needs to know to complete his claim must be deliberately concealed from him by the defendant. Section 32(2) states that a deliberate commission of a breach of duty in circumstances where it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty. This is an alternative to the claimant alleging active concealment on the part of the defendant of any fact which (applying the “statement of claim” test) is relevant to the claimant’s claim. The decision of the House of Lords in Cave v Robinson confirms that the alternative does not cover the case where the defendant has been negligent and his breach of duty involves a failure to take reasonable care (of which he is ignorant) rather than any deliberate wrongdoing. Unless the negligent defendant, upon later becoming aware of his negligence, takes steps actively to conceal it from the claimant his conduct will not be caught by section 32 and there will be no basis for saying he has only himself to blame for the fact that he is facing a negligence claim more than 6 years on from his negligent act.[56]Whether or not there has been later deliberate concealment by the defendant of his earlier negligence is a question of fact. If the defendant’s retainer is a continuing one to provide investment advice there is generally no obligation upon the adviser to exercise continuing vigilance to discover any past mistakes and to put them right: Capita (Banstead 2011) v RFIB Group Ltd 2016 QB 835 at [19] per Longmore LJ (an observation made in the context not of section 32 concealment but an argument that such a continuing retainer meant that the cause of action in respect of the initial mistake continued to accrue day by day). As the presumption must therefore be that investment advice is only forward not backward looking, any allegation that some later advice involves deliberate concealment of negligent advice in the past is one that must be grounded in fact rather than any duty of care to second guess the correctness of previous advice.[57]In this case, by a letter to Mr Davy dated 2 September 2003 from Tim Collyer (its Technical Support Manager) the Company did say that as part of its service “we regularly review the funds that we originally recommended to our policyholders and compare them to our current recommendation”. It is important to note that this was anything but an indication that the Company would re-visit the original recommendation to see whether or not, at the time it was made, it had been a correct one.[58]With these principles in mind I turn to Mr Davy’s case on section 32 concealment.[59]His Particulars of Claim make it clear that his case that the Company was guilty of deliberate concealment is one based upon inference: see paragraphs 32 and 38.1. It is alleged that the Defendant ought to have advised Mr Davy (paras. 29 and 30) that its 2001 advice had been deficient and, on that basis, that it ought to have advised him to seek independent advice about the reasonableness of that earlier advice.[60]Proceeding upon that basis Mr Davy relies upon the terms of the Company’s letter dated 25 August 2006 which Mr Howarth describes as “far too pale a letter” to constitute anything less than concealment of the earlier advice which is alleged to have been negligent. It is said that Mr Marston-Smith (the author of the letter) must have been aware that Mr Pickering had (or may have) been negligent because he, Mr Marston Smith, had given a statement on behalf of the Company in connection with the Company’s attempt to defend a claim by Senior First Officer Simon Lodge, another former BA employee whose cause for complaint was (it is said) similar to Mr Davy’s and which also arose out of Mr Pickering’s advice to transfer out of the BA occupational pension scheme.[61]This case of deliberate concealment is in my judgment seriously flawed in a number of respects. First, it proceeds on the assumption that the duty upon the Company was more onerous than the default position, revealed by the Capita v RFIB decision, supports.[62]Secondly, and as also falls to be addressed below in the context of the section 14A issue, Mr Lodge’s case was a different case. It is impermissible to impute to Mr Marston-Smith awareness that Mr Davy had been negligently advised simply because he, Mr Marston-Smith, was aware that one other client of the Company who had been a BA employee had made a complaint about the financial effects of his own pension switch. For all the court knows, there may have been one or more other retiring BA employees to whom the Company gave “similar” advice which was acted upon to their own individual satisfaction and without any subsequent complaint. Such conjecture shows why it would be wrong in principle to attribute to Mr Marston-Smith (or any other representative of the Company) what in effect would be guilty knowledge of prior wrongdoing based upon supposedly similar fact reasoning derived from one other case. But in fact it can be seen from the later judgment of the Court of Appeal in the Lodge case (delivered on 11 June 2008 on the Company’s unsuccessful application for judicial review of the Ombudsman’s decision) that, as at August 2006, Mr Lodge’s complaint had yet to be upheld by the Financial Ombudsman Service. It appears that the FOS upheld his complaint and directed financial redress by a decision dated 23 November 2006.[63]The third and last reason why the case under section 32 is flawed is because it appears to ignore the general thrust of the August 2006 advice, which was to reveal the extent of Mr and Mr Davy’s exposure to the investment risk of equities (at least across the range of their combined investment portfolio) and to highlight its “adventurous” nature. Again, I return below to the 2006 advice in the context of the issue under section 14A. If anything, it involved further opening Mr Davy’s eyes to, rather than an attempt to avert his gaze from, the possibility that the advice he had been given in 2001 was inconsistent with what he now alleges were his investment aims and objectives and what he then regarded as an acceptable level of investment risk.[64]The matters to which Mr Davy refers therefore do not in my judgment make out a realistic case that in 2006 either was guilty or is to be inferred to have been guilty of section 32 concealment. Section 14A[65]The test for determining the acquisition of section 14A knowledge at some point earlier in time than the actual commencement of the proceedings must, like the consideration of the facts which are said to have been deliberately concealed for the purposes of section 32, obviously be considered with hindsight and in the light of the elements of the claim as it has subsequently come to be pleaded. The test for section 14A knowledge is clearly anything but a “statement of claim” test but, as with section 32, consideration of what the claimant later pleads against the defendant must set the parameters of whatever it is he says he lacked knowledge of until section 14A(5) was triggered. And, as with the alternative riposte to the application of the primary limitation period, it is for the claimant to make out the case for section 14A applying: see Haward v Fawcetts [2006] 1 WLR 682, [106] per Lord Mance.[66]The test for what I have described by way of shorthand as section 14A knowledge is clearly set out in section 14A(5)-(10) as further explained by high authority. The authorities have focused in particular upon the degree of objectivity involved in the examination of the claimant’s knowledge (ss. 14A(7) and (10)); the primary nature of the “material facts” and other facts to which the inquiry into knowledge is directed; and the irrelevance of any knowledge as to whether or not those facts (viewed as actionable acts or omissions) amounted in law to negligence (ss. 14A(9)). Thus: i) the state of knowledge required is that of having sufficient confidence to justify embarking on the preliminaries to a claim such as taking advice, collecting evidence or submitting a claim to the proposed defendant or, in other words, “the claimant must know enough for it to be reasonable to begin to investigate further”: Haward v Fawcetts at [9] per Lord Nicholls (and at [20] and, per Lord Mance, at [113] and [128]); ii) section 14A(10) imports a degree of constructive knowledge. As Lord Mance observed in Haward v Fawcetts, at [126], the subsection covers the situation where, although the claimant lacks actual knowledge of the material facts which (see the next point) constitute the essence of his complaint, he knows sufficient to make it reasonable for him (by himself or with advice) to acquire further knowledge which would lead him to have it. But the emphasis is upon what would reasonably have been required “of him” which is something different from the court holding the claimant to the potentially different benchmark of what the purely hypothetical “reasonable man” would have done. This subjective qualification within the provision for imputing constructive knowledge was the subject of comment by Arden LJ in Gravgaard v Aldridge & Brownlee [2005] PNLR 19, [20]-[23], where she said the court must have regard to the characteristics of a person in the position of the claimant as opposed to characteristics peculiar to the claimant. The language of section 14A(10) clearly imports it and it is not surprising that it does when section 14A(7) – addressing element “(a)” of knowledge of the material facts about the damage suffered as opposed to element “(b)” relating to the source of, and reasons for it – is directed to the knowledge of “a reasonable person who had suffered such damage”. That subsection is all about whether the claim is worth the candle for a reasonable person in the claimant’s position; iii) the degree of detail required to be known is not that required to formulate a particularised statement of case but, instead, that which supports an understanding, in broader terms, of the complaint on which the claim is based: Haward v Fawcetts at [10], [49], [90] and [113]. The claimant must know the substance or factual essence of what is subsequently alleged to have been negligence, recognising that section 14A(9) clearly decrees that whether or not it is known at the time that, as a matter of law, the act(s) or omission(s) constitute negligence is irrelevant in determining whether or not section 14A knowledge exists; and iv) for the purposes of section 14A(8), and consistent with the last point, knowledge that the relevant damage, or some of it, is attributable to the alleged act or omission means knowledge that is capable of being attributed to it (as opposed to any higher state of knowledge which familiarity with legal concepts of causation in the law of negligence might support): Haward v Fawcetts at [11], [59], [122]. The focus is upon a real possibility (as opposed to probability) of it being so attributed, as opposed to a fanciful one.[67]In the context of negligence claims against financial advisers arising out of failed or poorly performing investments, the claimant’s damage will usually arise upon the making of the bad investment. Unless the investment carries with it some contingent liability or risk that might be argued not to be characteristically inherent within it from the moment it is made, the financial loss, as and when it arises, is one that reflects its characteristics. There may be some cases where it is said that the later fulfilment of some contingency, or trigger of liability event, has operated to create the loss when, without it, the investment’s characteristics alone would not have produced it. I have in mind, say, a later change of law or in the investor’s individual position which only then results in it becoming particularly disadvantageous from a tax perspective (assuming, for the purposes of a negligence claim, that the adviser should be taken to have foreseen it) and without which no loss would have arisen. Otherwise, the investment loss cannot be said to be independent of the nature and terms of the investment, once made.[68]In the usual case, therefore, any cause of action that the claimant may have if an unsuitable investment is made as a result of negligent advice is one that arises once he has made the investment, even if the true measure of his loss (without which no claim for substantial damages will ever likely be made) does not materialise and become quantifiable until later. This is consistent with the investment being treated as a one-off transaction which the claimant says he would not have entered into, on its particular terms, had he not been negligently advised. Of course, in circumstances where the investor can be presumed initially to have received full investment value in return for the monies invested under the transaction, the incurring of loss will usually depend upon the occurrence of later events, or contingencies, but there is nothing “contingent” about the terms of the investment transaction to which he has become committed and which exposes him to the risk of such loss. Any other conclusion, involving the proposition that the cause of action only accrued when the loss later materialised, would result in financial advisers (including those like the Company who have since ceased business) or the insurers under their professional indemnity cover (including any run-off cover) being exposed to the risk of potential claims many years after the investment was made; and, moreover, claims to which the primary 6 year limitation period would then apply with little if any need for most investor claimants ever to trouble themselves with resorting to the alternative period under section 14A.[69]Applying the terminology that has been adopted in earlier authority which addresses when the limitation clock begins to tick for the purposes of the primary limitation period, this is therefore a “flawed transaction” scenario, where the advice is said to have caused the claimant to enter into a disadvantageous transaction when compared with the attributes of an analogous transaction to which, he accepts and asserts, he would otherwise have become (or remained) committed. It is not a “no transaction” scenario, where the claimant’s financial position later becomes measurably worse upon a contingency becoming fulfilled in circumstances which would not have arisen had it not been for the defendant’s negligence because, without it, the claimant would not have become committed under that type of transaction at all.[70]A “no transaction” case might, on its particular facts, be said to involve loss which arises only upon the later happening of an event in respect of which the transaction actually entered into creates a contingent liability or exposure. The loss is prospective, and may never arise, but once it arises it is attributable to the negligence which caused the claimant later to become exposed to it. By contrast, the “flawed transaction” case involves a claim based upon the inherent flaws of the transaction the moment it is entered into when compared with the hypothetical alternative transaction promoted by the claimant. Again, the loss may never arise - the riskier investment markets, however unsuitably advised the investor may have been to enter them, might prove to be very profitable over the term of his investment - but, should it do so, it will be referable to the risks that were present from inception (and which are to be compared with the analogous transaction lost to the claimant as a result of the negligence). The analysis of the present claim as a “flawed transaction” case is, in my judgment, reinforced by the fact that the alternative, relatively “flawless” transaction already existed in the form of Mr Davy’s membership of the BA scheme. He came to the Company in 2001 for advice about the transfer of value from one pension to another rather than with a cheque for over £600,000 which, but for the Company’s input, he would have torn up and kept the cash (with no investment of it in a pension and therefore no comparable investment risks beyond the risk of theft or the impact of inflation).[71]Shore v Sedgwick Financial ServicesLtd [2008] EWCA Civ 863, upon which the Company relies, was also a case involving the claimant’s switch from an occupational pension scheme into a personal pension plan. I note that Dyson LJ (with whom the other members of the court agreed) – using the contrasting terminology of “the transaction cases” and the “contingent liability cases” at [26]-[49] – held that the claim was not a pure contingent liability case. He observed that the private plan created no contingent (or other) liability for the claimant and instead the transfer was “a transaction under which Mr Shore obtained a bundle of rights which, from the outset, were less advantageous to him than the benefits he enjoyed under the Avesta scheme” (at [48]). At the level of principle, Mr Davy’s case is subject to the same analysis.[72]Mr Davy’s own Particulars of Claim are consistent with this basic point that his case is one of transaction-based rather than pure contingency-based loss. In relation to the 2001 advice his claim arises out of the fact that he transferred his pension entitlement to the different terms and underlying investment of Skandia Life scheme when, properly advised by the Defendant by reference to his “cautious to medium” attitude to risk, he would not have left the BA occupational scheme. The Particulars of Claim (at paragraphs 25, 33 and 37) cannot be read otherwise than as supporting an accrual of a cause of action at the date of transfer – 2 November 2001 – even though (per para. 37(2)) “the damages [are] to be assessed on the basis of a comparison between his present position and the position he would have occupied had he remained a member of the BA Pension Scheme”. There is no element of loss claimed by Mr Davy, as a result of what he says is this unfavourable comparison, which arises otherwise than by reason of the attributes of the personal pension with Skandia Life as those existed from the moment of its inception. Even Mr Davy’s claim in respect of the 2006 advice is for the loss arising out of his inability to sue over that investment step he took in November 2001.[73]When section 14A is in play in such a negligence claim against a financial adviser the issue will be about when the claimant investor acquired knowledge (of sufficient quality to take the complaint forward, as explained above) of the essential matters which form the gravamen of that claim. The terms of the section proceed on the basic premise that most prospective litigants do not give thought to a proposed claim until significant damage arises by focusing upon a start date which refers to “the knowledge required for bringing an action for damages”. That knowledge is broken down into knowledge of the material facts about the damage and the “other facts” which are specified: section 14A(6) and (8).[74]In relation to the “other facts”, as in the present case, there will in many cases be no difficulty over section 14A(8)(b) (or (c)) as the identity of the financial adviser, as proposed defendant, will have been known from the outset. However, given that investment losses could have been caused by market or economic factors that might not relate particularly to the matters of which he later complains (e.g. the inherently risky and unsuitable nature of the largely equity-based underlying investment funds) there may be an issue as to when the claimant either did or ought reasonably to have acquired knowledge, to justify further investigation, of what might be described as the core elements and financial consequences of the suspected negligence: section 14A(6) and (8).[75]As was argued by the claimant investor in Shore v Sedgwick Financial ServicesLtd, Mr Davy contends that he did not acquire the knowledge required for bringing an action for damages until he received independent advice about his investment (in July 2011). In effect, and in the context of the element of constructive knowledge which is imported by section 14A(10), this involves him asserting that he could not reasonably be expected to have sought such advice before that time. I have to decide whether he is right to do so when the Company’s case is that the occurrence of loss and the market causes of it meant that, without the benefit of independent advice, he had acquired the requisite knowledge of the core ingredients and financial consequences of the its alleged negligence at a much earlier point in time.[76]This analysis in hindsight requires consideration of what is now Mr Davy’s pleaded Claim. The core elements of his complaint in relation to 2001 (as they emerge from the Particulars of Claim) are that the Company: i) did not undertake fact-finding a proper process to ascertain Mr Davy’s financial position, financial objectives and attitude to risk; ii) mistakenly categorised Mr Davy’s attitude to risk as “medium” when it was in truth “cautious to medium, in that he wished to obtain a reasonable level of income and, if possible, growth in relation to his pension funds, but was unwilling to accept any significant loss of capital” (para. 18); and iii) failed to make any proper comparison between the advantages and disadvantages of Mr Davy remaining in the BA scheme and transferring to the Skandia Life pension. The attractions of the BA scheme in terms of the guaranteed nature of the RPI-linked pension payments (so that BA took on the investment risk) are highlighted in paragraph 14 and the relative risks of the private pension (which it said the Company failed to explain) are addressed in paragraph 23 where the complaint is about excessive concentration, at the level of between 77% and 85%, of its investments in equities or equity based investments. The Skandia Life investments exposed Mr Davy to “a risk as to the performance of his Personal Pension in the event of downturn in equity market performance” whereas the Company’s advice (as summarised in paragraph 20) “assumed equity market performance would remain robust at between 7% and 11% per annum”.[77]I have already summarised the nature of Mr Davy’s complaint about the advice of 2006 (as the basis of the loss of a chance claim) in paragraphs 41 and 42 above.[78]I believe it is fair to say that Mr Davy’s essential complaint is that the Company caused him to invest in a private pension whose investments carried too much risk for an investor with his “cautious to medium” risk profile. I note that one particular matter relied upon by him is the Company’s alleged failure to illustrate or explain what the effect would be if the growth rate of the investments fell below the percentages used to illustrate the benefits that would be available under the personal pension and in particular “if returns fell below the level of drawdown taken”: see paragraphs 18 (as quoted above), 20.2 and 33.4 of the Particulars of Claim.[79]Mr Howarth submitted that it was vitally important to recognise that Mr Davy was not claiming any form of guarantee in respect of the value of his pension; that he was not claiming he had been advised in 2001 that it is value would not fall beyond the initial transfer value. Accordingly, he says, this case is different from cases such as Haward v Fawcetts (at [47]) or Jacobs v Sesame [2014] EWCA Civ 1410 (at [32]-[33]) where the court was able to identify a known event which was sufficiently at odds with the claimant’s investment expectations, as a result of the investment advice originally given to him or her, that it marked the trigger date for section 14A knowledge. In both his skeleton argument and oral submissions Mr Howarth said that his client’s case was that he was advised that there might be period of loss or downturn under the private pension but that “ultimately” that pension arrangement would be preferable to the BA scheme.[80]Mr Howarth also referred to what I have described above as the subjective qualification to the constructive knowledge provision within the section. He pointed out that in Shore v Sedgwick Financial Services Ltd (at [56] and [59]) the claimant had been a trustee of the occupational scheme from which he had been advised to transfer his accrued benefits and that in Williams v LishmanSidwell, Campbell & Price Ltd (at [58]) the claimant was described as “a wordly and experienced man of business”. I suspect that Mr Adams’ exercise in taking me to some of the documents surrounding the decision in the present case to transfer from the occupational pension scheme into the personal plan was designed to show that Mr Davy was more knowledgeable than naïve in financial and investment matters, but I agree with Mr Howarth that, on this summary judgment application, no conclusion or inference adverse to his client on this aspect can safely be drawn.[81]Mr Davy’s witness statements on this Application do seek to impress upon the court the point that he always regarded the investment as a long-term one and, in particular, he was not in a position to compare the performance and likely benefits under the Skandia Life scheme with those benefits that would have been available had he stayed in the BA scheme.[82]It is also the case that the Skandia Life letter dated 6 November 2001, mentioned at the beginning of this judgment, referred to the latest residual annuity purchase date of 20 October 2024 (when Mr Davy would be 75 and which was identified in the letter as the selected annuity purchase date). On that basis, the letter contained a projection of the fund value over each of the following 24 years (assuming annual withdrawals at different projected percentage rates of growth by reference to an assumed value of the non-protected rights which may, I think, have been different from the actual value at commencement). I also note that, although he ceased to work for BA in late 2001, Mr Davy’s evidence is that he thereafter took up work as a technical manager for a kitchen fitting business (working fairly flexible hours for about £10,000 p.a.) which continued from March 2003 until 2016.[83]However, there must be limits to any point of the kind sought to be made by Mr Davy to the effect that the Skandia Life investment was a long-term one so that really quite serious falls in its value – such as happened at an early point in its life as a result of the 11/9/2001 terrorist attack and later in 2008/9 in the global financial crash – were not such, so he argues, to trigger section 14A knowledge. By his first statement he says (in refuting the suggestion that his receipt of periodic statements from Skandia Life alerted him to the risks attached to the investment) “my complaint is that the benefits under the Skandia Life scheme turned out to be less that those which would have been available under the BA scheme”. Mr Howarth’s skeleton argument says that his client recognised “that there might be periods of loss/downturn in the value of investments, but that ultimately the private pension arrangement would be preferable” (his emphasis). Pursued to its logical conclusion this line of reasoning would mean that it might well not be until October 2024, the date by which Mr Davy had to purchase his annuity, that he would know whether or not the Skandia Life pension (with its then fund value available to purchase an annuity and having regard to the value of any annual cash withdrawals made during the intervening years) compared favourably or unfavourably with the guaranteed pension, including the survivor’s pension payable to Mrs Davy at the rate of two-thirds if she became a widow, that Mr Davy could have taken under the BA occupational pension scheme.[84]That brings me to the more significant objection to Mr Davy’s suggestion that it was (at least until the meeting with Mr Ings in July 2011) too soon to read into those quite drastic falls in the value of the Skandia Life fund any reasonable grounds for further investigation as to whether the Company’s advice about the relative advantages and disadvantages of the two alternative forms of pension provision had in fact been flawed advice. The point is that it is unrealistic, for the purposes of argument under section 14A, to hold out for the prospect of a comparison between the two investments, in the longer term, when such a comparison is simply not practicable, at least not for the purposes of supporting any suggestion that the Company was in 2001 negligent in failing to recognise, that is to say predict, that over the remainder of Mr Davy’s lifetime (and possibly Mrs Davy’s too) the benefits under the private pension would (or, perhaps, would probably) be less favourable than those that would have been received under the BA scheme.[85]The reason why Mr Davy made the switch to the personal pension plan was because it was a different product necessarily offering different benefits. It offered greater flexibility than the BA scheme so far as the withdrawal of an initial tax-free lump sum and permitted annual withdrawals were concerned. My understanding of what the BA scheme would have offered as benefits incidental to the fundamental provision of an index-linked pension (with the ability to defer its commencement, at least for some period of time, and thereby increase it) is hampered by not having the “Statement of Pension Benefits” that was originally attached to the letter dated 24 August 2001 and written to Mr Davy by British Airways Pensions in anticipation of his retirement. But it is clear from the letter - including its reference to the ability to commute the pension into an initial lump sum (at the rate of £1 annual pension to £12.95 cash) up to a maximum specified in the now missing schedule – that the package of rights was quite different from those under the Skandia Life plan.[86]Neither does Mr Davy’s pleaded case support his emphasis on this Application upon waiting and seeing, in order to be able to compare ultimate outcomes. As I have sought to explain, his pleaded case is fundamentally about the unsuitably risky nature of the Skandia Life plan (more specifically the nature and composition of its underlying investment across the 7 funds identified at page 7 of the Skandia Life letter dated 6 November 2001). The quantification of any damages payable to him on the pleaded claim would indeed rest upon a comparison between the benefits under the occupational scheme and the private pension. Expert evidence is contemplated by the Particulars of Claim and I would have thought that, depending upon the date of assessment, that would include actuarial evidence directed to the likely value of any annuity to be purchased under the Skandia Life scheme and proper allowance for the time value of money taken out of it in the meantime through cash withdrawals. However, that relates to the issue of quantum not the issue of liability arising upon his entry into the private pension transaction. In relation to liability his case is that the Skandia Life plan (more specifically the chosen investment funds underpinning it) was in and of itself too risky for Mr Davy with his suggested investment aims and appetite for risk.[87]The reason why I have laboured the point above about this case (like Shore v Sedgwick Financial ServicesLtd) being a “flawed transaction” case, involving a bundle of rights acquired, is because Mr Davy’s evidence and Mr Howarth’s submissions have a strong flavour of “no transaction”, and purely contingent liability, about them. But that is not a correct analysis of Mr Davy’s case which is concerned solely with the alleged unsuitably and flawed attributes of the transaction he entered into. The transaction he came out of (the BA scheme) is of no relevance to the pleaded case other than as providing a reference point for quantum. Its terms in relation to benefits payable to Mr (or Mrs) Davy over the remainder of the lives are irrelevant to the assessment of whether or not the Skandia Life investment was, for Mr Davy, a flawed one. Those terms are no more relevant to that question than they would be if Mr Davy had entered into what was, for him, an entirely satisfactory and sound alternative pension arrangement which did not cause him ever to contemplate suing the Company. And, as I have already observed, if this was a case where the existence of grounds for complaint about the Skandia Life pension was contingent upon some future reckoning between the two quite different arrangements then it is not clear to me when that reckoning should take place, nor even whether the time for it has yet arrived.[88]With that fundamental point in mind, I have no difficulty on the material before the court (which includes the documentation disclosed by Mr Davy) in concluding that Mr Davy had the required section 14A knowledge well before 17 July 2011. To quote from the “complaint summary” in the letter dated 28 July 2011 from the Financial Ombudsman Service to the Company, and therefore written soon after that date, the “Complaint regards the misselling of a drawdown pension. The adviser led the complainant to believe the policy would perform better than it has done.” The emphasis upon the past tense is mine and it plainly relates to a longer-held realisation of unacceptable investment risk than one triggered only within the previous fortnight.[89]The FOS letter, including those quoted words, was based upon a Complaint Form which Mr and Mrs Davy each signed putting the date of 28 July 2011, though I note that the date next to Mr Davy’s signature has been struck through and replaced with the date of 24 September 2011. In any event, it was clearly submitted to the FOS in late July 2011 (they acknowledged receipt of it by also writing to Mr Davy on 29 July) and in answer to the question “When did you first complain to the business you think is responsible?” the answer of 28 July 2011 was given.[90]For the Company’s purposes on the Application, it is sufficient for me to conclude that Mr Davy has no real prospect of establishing that he lacked section 14A knowledge before 17 July 2011.[91]That Mr Davy plainly had section 14A knowledge in respect of the complaint well before that date, and well before the initial formulation of his complaint on 28 July 2011, is in my judgment plain from the following matters: i) Mr Davy’s receipt of a letter dated 6 August 2002 from Mr Pickering in which he acknowledged “the reason why you are slightly nervous at the moment” and went on to say “everyone thought the current turbulence on the Stock Market would have been over by now”. This letter began by thanking Mr Davy for his short note which is not available to the court. It went on to say that Mr and Mrs Davy should “try to reduce your withdrawals as much as you can at the moment” (and I read this as relating to cash withdrawals from other investments, including Mrs Davy’s, and not just the Skandia Life pension). Mr Davy says in his witness statement that the letter contained a reassurance that all was well and it is right to say that Mr Pickering emphasised the wisdom of reducing withdrawals “for the moment” and expressed the hope that the markets might “bottom out” in a week or two. Whether or not Mr Davy read it as reassurance that all was well, it was obvious to him from this letter and the circumstances in which it was written that his personal pension was significantly exposed to the risk of adverse movements in the equity markets. The essence of his complaint against the Company is that he should not have been in this early position of seeking such reassurance in the first place. ii) Mr Davy did reduce his monthly withdrawals in the manner contemplated by Mr Pickering’s August 2002 letter. The annual statements produced by Skandia Life each September show that his monthly withdrawals in the first year of the plan had been £2,079.33 (the maximum permitted) but these were reduced to £1,000 in 2003; though it is fair to note that the September 2004 statement shows them coming back towards the maximum (at £2,000 per month over the preceding year). Part of Mr Davy’s case is that he expected the pension to provide a reasonable level of income and that, even if it might not grow, the underlying fund should not suffer significant capital loss. Although his witness statement says that his employment from March 2003 meant that he had no need to make higher capital withdrawals (and this is supported by him being sent the form to reduce the level of withdrawals by Mr Pickering’s letter of March 2003 mentioned below) he either did know or ought reasonably to have concluded in by late 2002 that any higher rate of monthly withdrawal would come at the expense of eating into capital. iii) In late September 2002, by the Skandia Life statement dated 3 September 2002, Mr Davy could see that the value of the non-protected rights fund had fallen to £301,411.25. It is not easy to establish by reference to the documents now in evidence what the value of that fund was when the pension was taken out the previous November. The total sum invested in the pension (in both protected rights and non-protected rights) may well have been less than the £484,378.55 mentioned in the Particulars of Claim and at the outset of this judgment. Mrs Davy’s later note prepared in connection with the meeting with Mr Ings (see paragraph 96 below) suggests that the value of the non-protected rights fund in November 2001 may have been £359,677. Whether or not that was the lower starting figure (than that forming the basis of the alternative forecasts at page 2 of the Skandia Life letter dated 6 November 2001) Mr Davy could see that he had suffered a significant loss of capital in his investment. I have already observed how his witness statements, directed to this not being a matter of concern in anything but the very long term, do not address the point that his own case is that he should not have been exposed to this kind of equity market-based loss. iv) That Mr Davy had expressed further concern about the loss is apparent from the terms of Mr Pickering’s letter to him of March 2003. It was this letter which enclosed the form for seeking reduced monthly withdrawals. Again, the court does not have the communication from Mr Davy (a letter dated 23 March 2003) to which this was a response. In his letter Mr Pickering began by thanking Mr Davy for his letter and saying “I do appreciate your concern as far as the Stock Markets are concerned.” It ended on the same note by offering to “sit down with you and suggest various ways we might be able to reduce that concern”. The terms of the letter clearly indicate that Mr Pickering was addressing the possibility of moving out of equity-based investments. Whether or not Mr Davy’s own letter had raised that suggestion (which would be a fair inference) Mr Davy was clearly concerned by the fall in the value of his fund and that it was attributable to the stock markets. In his witness statement Mr Davy says he was also reassured by this letter. It is true to say that Mr Pickering was hopeful that the markets would recover and that if he did not switch underlying investments Mr Davy would benefit from any recovery. However, the point is that Mr Davy then knew he was in a position where he had to hope for some recovery from the loss of fund value. v) The letter dated 2 September 2003 from Mr Collyer mentioned earlier in this judgment stated that Mr Pickering “feels there would be a benefit in a switch and/or redirection of your funds” within the Skandia Life pension. On the face of it, this letter indicates that Mr Pickering had formed a different view from the general “stay put” message in his March letter. It appears that Mr and Mrs Davy did attend an annual review meeting with Mr Kennedy in November 2013. His letter to them dated 20 November 2003 noted, that despite an improvement in performance to September 2003 due to improving markets, “we are still a long way short of the value we had in November 2001”. It appears that Mr Davy agreed to implement a switch of some of the funds of his protected rights investment. Again, the point is that Mr Davy was aware of the fall in the value of his pension fund. vi) The review the following year took place between Mr Collyer and Mr Davy in October 2004. A note of the review dated 12 October 2004 indicates that the value of the pension fund was then £314,788 and that Mr Davy completed a switch of investments form. Mr Collyer’s follow-up letter dated 7 December 2004 referred to that switch but went on to say that, having discussed matters with Mr Pickering, they had “something a little more radical in mind”. The letter continued by describing in a little detail the proposed underlying investments – described as “Skandia Medium Pension” – which “over the last 3 years produced a lower level of volatility (risk) and yet has managed to achieve a higher rate of return” than “Graham Current”. One of the details of the proposed switch was that Mr Davy’s exposure to the North American stocks would be reduced from 27% of the portfolio to 8.7%. Mr Davy was sent a switch form for completion and the terms of a later letter from Mr Collyer dated January 2005 indicate that “the new portfolio” was by then in place. This was a further illustration of Mr Davy’s attention being drawn to the investment risks of his pension before that date. vii) The letter dated 25 August 2006 which Mr Marston-Smith wrote in connection with the 2006 advice. In the light of the terms of this letter it is not clear that Mr Davy had in fact adopted the “Skandia Medium Pension” switch recommended to him in 2004. Mr Marston-Smith’s letter to both Mr and Mrs Davy commented that “nearly 77% of your overall assets are equity based” (and that percentage might be said to be higher if one took account of a property share fund which held mostly property shares rather than property itself). That said, and although the three attachments to the letter are missing, the letter clearly related to other investments aside from Mr Davy’s Skandia Life pension. However, to the extent that “the high equity content of your portfolio” was attributable to that pension investment, the letter contained a clear indication of the Company’s view that it was “sensible at the present time to take a more cautionary approach to your asset allocation”.[92]In the light of these matters, it is in my judgment clear beyond sensible argument that Mr Davy had the requisite section 14A knowledge in respect of a claim against the Company over its advice in 2001 by no later than August 2006. By that time he knew that the investment he had made on the Company’s advice was a risky one (relative to the level of certainty provided by the BA scheme) and that the level of risk was attributable to the heavy equity-based nature of the pension fund investments. Indeed, the risk attached to them was one which materialised in the first year of the investment. It resulted in a significant loss of capital which he says was unacceptable for someone with his appetite for risk and with his expectations of an annual income funded otherwise than at the direct expense of capital. These are the essential grounds of his later complaint against the Company.[93]Although he made no complaint about the Company’s initial advice at the time, Mr Davy’s concern about his pension’s exposure to downturn in the stock markets was the basic theme of the subsequent reviews of his pension summarised above. Mr Davy suggests that it was only when he received the advice from Mr Ings on 19-20 July 2011 that he acquired the requisite section 14A knowledge. This prompts the obvious question as to what it was that Mr Ings of Sanlam told Mr Davy that was not already apparent to him.[94]The answer is that Mr Ings suggested to Mr Davy that he should “google” the case of Mr Lodge, the other BA employee mentioned above who had on the Company’s advice transferred out of the occupational pension scheme in favour a private pension. Having undertaken that search Mr and Mrs Davy found out that Mr Lodge had made a successful complaint to the FOS which the Company had failed to overturn on an application for judicial review. Allowing for any similarities between the position of Mr Davy and Mr Lodge, given their employment by BA, Mr Lodge’s complaint against the Company was obviously a different complaint based upon his own circumstances. A reading of the Court of Appeal’s judgment dismissing the application for judicial review confirms that Mr Lodge’s complaint does indeed appear to have involved the charge that Mr Pickering’s assumed growth rates were unrealistic and the 9% figure was anything but “modest”, as described by Mr Pickering. But the Ombudsman’s finding was based upon the fact that Mr Lodge’s “section 32 pension plan (with AXA Sun Life) with his fund invested in equities” in fact carried with it a significantly higher level of risk than his “medium” risk categorisation warranted; and, as I read the judgment, was recognised by the Company not to be able to support the purchase of an annuity at a level equivalent to the pension he might have drawn under the BA scheme. I note that Mr Lodge, who had a “significantly younger” wife who might have benefited from the widow’s pension under the BA scheme, intended at the time of the switch to continue working until 60 as a pilot with Airtours and to delay taking his pension until then. I also note that he appears to have questioned the wisdom of the switch by seeking independent advice within a matter of months of committing to it, and that led to a formal complaint just over 4 years later.[95]Nothing that Mr Davy read about the circumstances of Mr Lodge’s complaint can have enlightened him, Mr Davy, further upon any grounds he himself had for complaining about the advice he had received from the Company in 2001. If Mr Davy drew from his research into that other case the conclusion that if the Company’s investment advice to Mr Lodge in 1999 was not suitable then its advice to him in 2001 was also negligent (however safe or unsafe that conclusion might) then that is the one piece of knowledge that is not required before section 14A knowledge can be said to exist: see section 14A(9).[96]Although on this Application I accept what Mr and Mrs Davy say about Mrs Davy’s manuscript notes having only been prepared for the second day of the meeting with Mr Ings, on 20 July 2011, so that it cannot be inferred they were prepared before it (and possibly, therefore, before the crucial date of 17 July 2011) that does not undermine the conclusion that Mr Davy acquired the section 14A knowledge some considerable time before. On the contrary, the content of those notes reinforces that conclusion. Mrs Davy’s notes compare the amount invested in the non-protected rights fund in 2001 with its value in November 2003 and go on to record “25% LOSS OF FUND IN 15 MONTHS!!!”. They continue with reference to the reduced monthly income withdrawals (“in November 2003 all deposit monies gone – income now taken from cashed in units”) before observing “it took 4 years for the fund to recover to its initial value” (in 2005) and then (after a high point in 2007) saying “it has lost value since then (4 year period)”.[97]Unlike Mr Ings’ revelation about Mr Lodge’s case, those notes confirmed Mr Davy’s awareness of those matters over a number of years. Like the Complaint submitted to the FOS shortly afterwards, they confirmed a state of section 14A knowledge (of matters they were revealing to Mr Ings) that had existed for some considerable time.[98]In my judgment, for these reasons, there is no real prospect of Mr Davy establishing at any trial that he lacked the requisite knowledge (as elucidated in paragraph 66 above) to bring any claim in respect of the Company’s 2001 advice until a point some time later than 17 July 2011.

Disposal

[99]For the reasons set out in this judgment the Claim is statute barred on the application of both the primary and alternative limitation period and I grant summary judgment on the whole of the Claim in favour of the Company.

Cited in 5 later judgments