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Knowledge of negligence – Section 14A of the Limitation Act

News | Tue 12th May, 2015

Section 14A of the Limitation Act is extremely challenging and has given rise to a considerable body of case-law.

One particularly vexed question is the extent of knowledge required where lawyers are sued for providing allegedly negligent advice on an underlying claim. In particular, does the claimant to have to know that the advice given by the lawyers was wrong? Or is that excluded by Section 14A(9), which provides “Knowledge that any acts of omissions did or did not, as a matter of law, involve negligence is irrelevant for the purposes of subsection (5) above”. This has now been answered by the Court of Appeal in Chinnock v Veale Wasbrough [2015] EWCA Civ 441.

In 2001 Ms Chinnock sought the advice of solicitors and a barrister in respect of a potential wrongful birth claim against an NHS Trust. The thrust of the claim was that clinicians had failed to inform Ms Chinnock of the significant risk of foetal abnormality (1:13), and also failed to tell her that a radiologist had “strongly suspected” there was some major abnormality with the baby, but could not define it.

Ms Chinnock’s legal team advised her, in light of medical evidence, that she did not have a viable cause of action against the NHS Trust. Given this, she was advised not to serve the Claim Form that had been issued. The legal team informed Ms Chinnock that if she was dissatisfied, she could seek alternative advice.

Ms Chinnock was extremely surprised and disappointed with the advice. Nonetheless, she followed it. The Claim Form was not served.

In 2009 Ms Chinnock consulted different solicitors as she was getting divorced. They advised her that the legal team had been negligent in 2001. Ms Chinnock brought a professional negligence claim against them.

Ms Chinnock’s claim was dismissed by Dingemans J, who held that the solicitors were not negligent. This was upheld on appeal.

The decision on limitation was much more controversial. Dingemans J held that Ms Chinnock had actual knowledge within Section 14A(5) of the Limitation Act in 2001, and so the professional negligence claim was time-barred. At that time, Ms Chinnock knew the identity of the legal team, and she knew she was not pursuing the wrongful birth claim because of their advice. The judge held that the fact she did not know that advice was negligent was irrelevant, because of sub-section (9).

The majority of the Court of Appeal (Jackson and Longmore LJJ, Roth LJ dissenting on this point) disagreed with this analysis, holding that in 2001 Ms Chinnock knew all material facts, save that (1) that the advice in 2001 had been wrong, and (2) that this error had been negligent. Whilst Ms Chinnock did not need to know the (alleged) error was negligent for her to have actual knowledge, she did need to know that the advice had been wrong. As such, there was no actual knowledge.

However, given Ms Chinnock was deeply unhappy with the advice she had received, it would have been reasonable for her to obtain alternative legal advice well within the primary limitation period for the professional negligence claim. This was conceptually similar to Forbes v Wandsworth Health Authority [1997] QB 402.


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