Personal Injury, Professional Negligence and Costs specialist Stephen Goodfellow of No5 Barristers’ Chambers discusses the recent decision in Witcomb v J Keith Park Solicitors [2023] EWCA Civ 326, which concerns the failure of solicitor and counsel to advise a claimant of the option of seeking provisional damages.

The claimant suffered serious injuries to his right leg and foot in a road traffic accident in 2002.  At a settlement meeting in December 2009 he received £150,000 in full and final settlement of his claim. The claimant received no advice from the solicitor or counsel about provisional damages. He was advised that, other than a trial, a lump sum payment was the only option available to him.  However, it was explained that if he settled at this stage there was a risk of settling at an undervalue, particularly if the operation he was awaiting, to remove metalwork, was unsuccessful.  The claimant’s condition deteriorated much more quickly than had been anticipated and in January 2017 he was advised, for the first time, that he needed a below knee amputation of the right leg.  He was advised to take further legal advice, which he did and issued proceedings in December 2019. 

The hearing in the High Court, and the Court of Appeal acknowledged that the professional negligence claim was brought outside the primary limitation period and considered the alternative three year period, which runs from the date of relevant knowledge, as set out in s14A Limitation Act 1980, specially:

(4) (b) three years from the starting date as defined by subsection (5) below…

(5) … the starting date is the earliest date on which the plaintiff … first had both the knowledge required for bringing an action for damages in respect of the relevant damage and a right to bring such an action

(6) … the knowledge requiredmeans knowledge both— 

           (a) of the material facts about the damage in respect of which damages are claimed; and 

(b) of the other facts relevant to the current action mentioned in subsection (8) below. 

(7) … the material facts about the damage are such facts about the damage as would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment. 

(8) The other facts referred to in subsection (6)(b) above are— (a) that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence; and (b) the identity of the defendant; and (c) …

At the trial the judge concluded that the claimant had knowledge of the material facts in mid-2016 and knowledge of attribution at some stage after January 2017, less than three years before proceedings were issued. 

On appeal the defendant argued that the claimant had knowledge of attribution as at 2016, when he knew he was left with a full and final settlement which had made no provision for the possibility of a serious deterioration in his condition in future. He had known that there was a risk of settling at an undervalue and he now knew that the risk was occurring. 

However, the Court of Appeal rejected this, stating that the damage in respect of which damages are claimed arise out of the absence of the claim for provisional damages, which the claimant knew nothing about until he received further legal advice after January 2017.  It reiterated the House of Lords decision in Haward v Fawcetts [2006] 1 WLR 682  and the observation that “A claimant who has received apparently sound and reliable advice may see no reason to challenge it unless and until he discovers that it has not been preceded by or based on the investigation which he instructed or expected” and added that “this is particularly the case where, as here, the claimant is unaware that he has lost anything by following apparently sound and reliable advice” (para. 51 & 52).

The decision confirmed that where the essence of the allegation of negligence is the giving of wrong advice, time will not start to run under section 14A of the Act until a claimant has some reason to consider that the advice may have been wrong.  Similarly, where the essence of the allegation is an omission to give necessary advice, time will not start to run under section 14A until the claimant has some reason to consider that the omitted advice should have been given.

This also highlight the importance for solicitors and counsel in personal injury and clinical negligence claims of considering and advising claimants about seeking provisional damages under CPR 41.2 where there is a chance, even a small one, of a claimant developing some serious disease or serious deterioration in their physical or mental condition at some time in the future.