The basic ingredients for a professional negligence claim are:
- A Duty of Care
- Breach of the duty
- Resulting loss caused by the breach
A duty of care against a legal advisor can be founded in contract or tort.
But the limitation regime is different depending on whether the duty is contract or tort based. A claim for professional negligence must be brought within 6 years. But if you are claiming on a contractual basis, then it is 6 years from the date of breach (i.e. when the contract is performed). In a tort based claim the 6 years runs from when the actionable damage occurred. The latter is usually more generous and tend to be pleaded in the alternative.
Limitation will also be affected if you include any personal injury as part of your claim (in which case the period is drastically reduced to 3 years). An alternative to the 6 year limitation is to bring a claim 3 years from ‘date of knowledge’ in the event this is later.
The illustration of limitations in the professional negligence cases was made in the recent Court of Appeal case of Chinnock v Wasbrough and Rea (2015), which was also reported in the Law Gazette.
The facts were quite tragic. The clients’ daughter had died when she was 11 years old from a serious chromosome abnormality. They instructed a firm of solicitors and a barrister to bring a wrongful birth claim against the NHS. Initially a claim was issued in April 2001 but following a conference with experts in July 2001, the clients were advised that the claim had no merits to proceed. Coincidentally in 2009 the father instructed solicitors in respect of the divorce between the parties and was advised that they did have a clinical negligence claim worth pursuing back in 2001. So in July 2009 the mother issued proceedings against the solicitors and in January 2012 against the barrister. She lost at the first instance and it was upheld at the Court of Appeal that a) the legal advisors had not been negligent and in any event b) the claim was statute barred.
The reasoning was that in July 2001, the clients knew or ought to have known that they had lost the chance to bring a claim against the NHS. Although they did not actually know at the time that the advice from the legal advisors were wrong/negligence, they had ‘constructive knowledge’ of this and should have consulted alternative legal advisors for advice on whether they did in fact have a clinical negligence claim, long before limitation expired (which would have been July 2007).
It is clear that if you have received advice from your legal advisor which you are not happy with or dubious about, a second opinion should be sort at the earliest opportunity to salvage the original underlying claim and to avoid any potential professional negligence claim falling foul of limitation as did happen to Mrs Chinnock.