This judgment was handed down remotely at 10.30am on 24 March 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Mr Justice Lavender:
(1) Introduction
- The claimant appeals against the decision of Mr Recorder Gibbons to give summary judgment for the defendant on the claimant's claim for damages.
(2) Background
(2)(a) The Pension Scheme
- The claimant was employed as a craftsperson by the defendant between 8 June 1981 and 1 August 2002.
- The claimant was a member of what was then known as the Lattice Group Pension Scheme ("the pension scheme"). Rule 3.5 of the pension scheme rules provided as follows:
"A member who is dismissed by his employer before normal retirement age due to incapacity is, if the trustees in their discretion determine, entitled to immediate payment of the scale pension.
"
- Rule 12.1 of Schedule 2 to the rules provided that:
""incapacity" in respect of a DB member means ill-health or infirmity which, in the opinion of the employer (which may act on such medical evidence as it may require), is likely to render the DB member permanently incapable of carrying out his duties."
- There are issues about the construction of these rules, including, in particular, whether "his duties" means all, or merely some, of the duties of the member's role as employee.
- Where a pension was payable under rule 3.5, it was an enhanced pension, but it was liable to be suspended, revoked or reduced. Rule 3.5 continues as follows:
"
The scale pension will be calculated as in (1) or (2) below:
(1) In cases where the member is likely to be permanently incapable of carrying out his duties, the scale pension will be enhanced by taking into account one half of the additional pensionable service which the member would have completed had he remained in service until normal retirement age with no change in his salary after his actual exit date ("Category A pension"); and
(2) In cases where the member is likely to be permanently incapable of any work, the scale pension will be enhanced by taking into account the additional pensionable service which the member would have completed had he remained in service until normal retirement age with no change in his salary after his actual exit date ("Category B pension").
The trustees may suspend, revoke or reduce any pension paid under the DB rule 3.5, in the case of a "Category A pension" at any time before the member reaches age 55, and in the case of a "Category B pension" at any time before the member reaches normal retirement age, unless the member satisfies the trustees of his continued incapacity to carry out any remunerated work.
"
- The distinction between paragraphs (1) and (2) is potentially significant, since it demonstrates that a member who is "likely to be permanently incapable of carrying out his duties" need not be "likely to be permanently incapable of any work".
(2)(b) The Claimant's Dismissal
- On 27 February 1999 the claimant was involved in an accident at work which injured his back. He did not return to work, apart from an unsuccessful attempt which lasted for only 3 days. He was dismissed on 1 August 2002. The defendant sent him a letter dated 1 August 2002 which stated that his employment had been terminated "on the grounds of capability due to ill health".
- On about 6 August 2002 the claimant submitted an application to the trustees of the pension scheme for a pension. On 2 and 16 September 2002 the secretary to the trustees wrote to the claimant to say that his application was invalid. In the second letter the secretary said that the defendant had stated that it had not dismissed him for incapacity. I have not been shown a copy of this statement (unless it is to be found in the note of a telephone conversation on 2 September 2002), but the defendant accepts that it was made. I will refer to it as the 2002 opinion.
- The claimant contends that it was negligent and/or irrational for the defendant to form the 2002 opinion, having regard to the various medical reports which had been prepared on the claimant between his accident and his dismissal. The claimant contends, in effect, that, in forming the 2002 opinion, the defendant asked itself the wrong question.
- Since 2002 the claimant has repeatedly asked the defendant to state that he was dismissed on grounds of "incapacity", but the defendant has declined to do so.
(2)(c) The First Complaint
- Following a complaint made by the claimant on 29 July 2008 under the first stage of the pension scheme's internal dispute resolution procedure, the trustees asked the defendant to provide formal written confirmation of whether or not the claimant's dismissal was on the ground of incapacity and the defendant provided this confirmation on 13 November 2008. Again, I have not been shown a copy of the defendant's confirmation, but apparently it was in the following terms:
"Further to investigation into this matter, I can confirm that in the opinion of the employer, based on medical evidence that it was not possible to reach the conclusion that Mr Phillips was permanently incapable and therefore was not eligible for ill health."
- I will refer to this as the 2008 opinion. Again, the claimant contends that it was negligent and/or irrational for the defendant to form such an opinion in 2008 and that the defendant had asked itself the wrong question.
- In the light of the 2008 opinion, a pensions administration manager wrote to the claimant on 11 December 2008 to say that the trustees were unable to consider the claimant's application for a pension.
(2)(d) The Second Complaint
- Following a further complaint made by the claimant on 7 June 2009 under the second stage of the pension scheme's internal dispute resolution procedure, on 30 July 2009 the secretary to the trustees wrote to the claimant as follows:
"Further to your attendance, accompanied by your wife and your barrister Mr Heppinstall at the Trustees' meeting on 20 July, I am writing on behalf of the Trustees to advise you of the proposed next steps.
The Trustees subsequently considered the matter and agreed to accept Mr Heppinstall's invitation, made on your behalf, for the Employer to reconsider its opinion in light of your submission.
As soon as there is any further news, I will advise you and your representative, Mr Govier of IBB Solicitors."
- On 14 October 2009 a pensions officer wrote to the defendant as follows:
"
The Trustees of the National Grid UK Pension Scheme discussed Mr Phillips' case at their meeting on 20 July 2009. The Trustees agreed that the Company should be asked to undertake a further review of the circumstances pertaining to Mr Phillips' dismissal in 2002, especially the decision that he did not meet the requirements of ill health retirement under the (then) Lattice Group Pension Scheme.
"
- I will refer to this as the 2009 request.
- On 19 November 2009 Michael Foster for the defendant prepared a report on the review which he had conducted into the claimant's file, seemingly prompted by the 2009 request. Mr Foster said as follows:
"
The "opinion" from National Grid that was finally reached in 2008 is clear and unequivocal. However, its lack of reference to a medical expert is problematical as it makes no attempt to resolve the medical ambiguity referred to above. After reviewing this case I am of the view that under the scheme rules of 2002 the medical advice available to me fails to confirm that Mr Phillips is entitled to an ill health retirement pension. That said this advice is not categorical and a degree of ambiguity exists. In addition it is also likely Mr Phillips left with the expectation that he would receive an ill health pension and this should not have been the case. Finally the failure of Transco to confirm an "opinion" in support or otherwise of ill health retirement was instrumental in this case being under discussion for over seven years. Mindful of the above I am recommending that Mr Phillips is referred to a medical expert with the expectation that National Grid can obtain a clear and unambiguous medical view before finally confirming its "opinion".
"
- In the event, no such medical report was ever prepared, despite correspondence between the parties. Each party blames the other for the delay. I will return later to this period of delay.
- It appears that the trustees were informed of Mr Foster's review. A pensions officer wrote as follows in an email dated 4 December 2009:
"
The Trustees considered Mr Phillips' Internal Disputes Resolution (IDR) application at their meeting earlier in the year. Following legal advice from Sackers, it was agreed at that time that the case should not be considered under the Scheme's IDR procedure, as the ill health decision under dispute was one that had been made by the Company.
The Trustees, however, agreed to accept Mr Phillips' approach as a request to send the case file back to the Company for a further review to be carried out.
We wrote to Mr Phillips to confirm the Trustees' decision, and the case was passed to the Company accordingly.
I have had confirmation back from the Company that they have completed a full and exhaustive review of the files. The Company have agreed that there was a level of ambiguity in the medical evidence at the time they made their decision. Whilst this is no longer a case for the Trustees to consider, I can confirm that the Company are taking this case forward. They will be corresponding with Mr Phillips accordingly.
"
- I have not been shown any evidence that the defendant made any further response to the 2009 request.
(2)(e) Further Correspondence with the Defendant
- The claimant instructed his current solicitors and they first wrote to the defendant on 5 April 2018, alleging that the following question remained unanswered: "Was the claimant permanently incapable of carrying out his duties?" The solicitors asked the defendant to answer that question in the affirmative.
- Following a number of chasing letters, on 6 November 2018 the defendant wrote to the claimant's solicitors as follows:
"
The medical advice received by the Company supported the conclusion that there may be scope for Mr Phillips to undertake a modified role in the future. From this advice, the Company reached the view that Mr Phillips should be dismissed on capability grounds, rather than on incapacity grounds. As such, based upon the rules in force at that time, there was no right, or ability, for Mr Phillips to seek an ill-health pension from the Scheme from Active status.
"
"
Given the extended time that has elapsed since Mr Phillips left the Company, it would not be deemed appropriate to try to obtain a retrospective medical opinion, which would, of course, have needed to evaluate the position as at the date of leaving, and not the medical circumstances prevalent at that date."
- On 30 June 2021 the defendant wrote to the claimant's solicitors (in response to a letter dated 27 May 2021) as follows:
"
We have carefully considered the points which you have raised in your letter and have concluded that there is no new evidence which would suggest that the Company's grounds for ending Mr Phillips' employment should be revisited.
"
(2)(f) The Claim
- The claim form was issued on 14 June 2022.
- In paragraph 8 of the particulars of claim, the claimant said as follows:
"At the time of dismissal and since, the Defendant has owed the Claimant a duty of care to answer all inquiries and/or state any and all opinions as to the reasons for his dismissal with reasonable care and skill, alternatively, by reason of the duty of mutual trust and confidence, the Defendant has, at all material times, been obliged to state a fair and accurate opinion, under Rule 12.1 as above. Further and/or alternatively, in all the circumstances, the Defendant has been under a duty to protect the post-employment economic interests of the Claimant. In so far as the Defendant has been exercising a discretion then it was an implied term for that discretion to be exercised rationally, in good faith, for a proper purpose, without perversity or caprice and only taking into account relevant matters and not irrelevant matters."
- In the particulars of claim, the claimant recited some of the correspondence to which I have referred and also referred to the medical reports which had been obtained from time to time and asserted both that he had been dismissed for incapacity and that no reasonable employer could express the contrary opinion.
- In paragraph 15 of the particulars of claim, the claimant said as follows:
"The Claimant has on too many times to particularise, asked the Defendant to state to the Pension Scheme an opinion that it dismissed him for incapacity within the meaning of rule 12.1. The Defendant has either wrongfully refused to make that statement and/or has negligently misstated that he was not so dismissed, on many occasions. Further and/or alternative, having wrongfully made an inaccurate statement, the Defendant has wrongfully failed and/or refused to correct or amend that statement."
- In paragraph 24 of the particulars of claim, the claimant said as follows:
"The Defendant, in breach of the contractual and common law duties set out above, has failed to, and continues to refuse, to state a true and fair opinion to the Pension Scheme and/or an opinion reached after using reasonable care and skill and/or after properly exercising its discretion."
- The claimant claimed an injunction requiring the defendant to state a true and fair opinion to the pension trustees, alternatively damages in the amount of the pension lost.
- The defence is dated 26 August 2022 and the reply is dated 22 December 2022.
(2)(g) The Application
- By an application notice dated 4 August 2023 the defendant applied for either an order striking out the claim or summary judgment. The grounds for the application were that the claimant had no entitlement to the remedies which he claimed and/or that the claim was time-barred. The defendant contended that the claim for damages was barred on the expiry of 6 years after 2002, alternatively 2008, and that the claim for an injunction was barred by the doctrine of laches.
- The recorder heard the application on 4 January 2024. The claimant did not dispute that the relevant limitation period for the damages claim was 6 years from the accrual of the cause of action. In his skeleton argument, the claimant summarised his case as to the legal basis for the defendant's alleged contractual and/or tortious duties by saying that the defendant was under a duty:
"(a) to answer all inquiries and/or state any and all opinions as to the reasons for his dismissal with reasonable care (Spring v Guardian Assurance PLC and others [1995] 2 AC 296);
(b) to state a fair and accurate opinion (cf. TSB Bank plc v Harris [2000] IRLR 157 and RDF Media Group plc and another v Clements [2008] IRLR 207);
(c) to reach an opinion using reasonable care and skill;
(d) to protect the post-employment economic interests of the Claimant (Rihan v Ernst & Young [2020] EWHC 901), and;
(e) to exercise any discretion rationally, in good faith, for a proper purpose, without perversity or caprice and only taking into account relevant matters and not irrelevant matters (Braganza v BP Shipping Limited and another [2015] UKSC 17).
- The claimant then summarised his case as to when the cause of action accrued as follows:
"(a) There is an on ongoing duty on the Defendant to lawfully opine on the Claimant's incapacity (or otherwise) which it was mandated to do by the Scheme Rules. This duty is breached each day the Defendant fails to so opine. Breach of this duty is ongoing and has been since the Defendant's dismissal in 2002;
(b) There is an on ongoing duty on the Defendant to lawfully opine on the Claimant's incapacity (or otherwise), which arises following the Trustee's request that the Defendant reconsider its opinion (being the result of the Stage 2 Dispute Resolution Procedure) and/or the Defendant's 2009 undertaking to reconsider following this request. This duty is breached each day the Defendant fails to so opine. Breach of this duty is ongoing;
(c) In November 2018 and May 2021 the Defendant came to fresh opinions and/or reviewed its files. In forming these opinions and conducting reviews it was subject to the pleaded duties. It breached those duties. These breaches are unarguably in time;
(d) Loss is the essence of the cause of action in negligence. The Claimant suffers loss on an ongoing basis when the Pension Trustees (acting on the Defendant's breaches of duty and its unlawful opinion) do not pay to the Claimant payments due under the incapacity pension to which he is entitled."
- The recorder handed down judgment remotely on 22 January 2024. His order striking out the claim for damages was made on 25 March 2024.
(2)(h) The Recorder's Judgment
- The recorder said in paragraph 15 of his judgment that:
"The essence of the present claim is that the Defendant failed in 2002 and again in 2008 to provide a fair and honest opinion as to the Claimant's incapacity
"
- The recorder dealt with the claim for specific performance in paragraphs 16 to 28 of his judgment. In particular:
(1) In paragraph 27 he said, in effect, that it was highly arguable that the 2002 and 2008 opinions were wrong, saying, "To my mind, this point carries a high degree of credibility."
(2) In paragraph 28 he said:
"
However, a re-examination of the conclusions, whether or not backed by a fresh medical opinion, and in the light of the quashing of the original conclusion, may lead to a different conclusion as to whether there was incapacity (as the Scheme defined it) in 2002.
"
- The recorder dealt with the limitation issue in paragraphs 29 to 35 of his judgment. In particular:
(1) In paragraphs 30 to 33 he addressed the claimant's argument that there was a continuing breach of contractual and/or tortious duty. He considered a number of cases and held that the Court of Appeal's decision in Bell v Peter Browne & Co [1990] 2 QB 495 was fatal to this aspect of the claimant's claim.
(2) In paragraph 33 he found that any loss was suffered in 2002, when the defendant provided its opinion to the pension trustees.
(3) Also in paragraph 33, he dealt with events in 2008, saying that, even if a fresh cause of action arose when the defendant confirmed its 2002 decision in November 2008, the same limitation points would arise.
(4) Then in paragraph 34 he dealt with events since 2008, saying that there was in his judgment nothing which occurred after 2008 which could give rise to a fresh limitation period starting to run. In particular, he noted that the letter written in November 2018 was not a fresh letter to the pension trustees.
- However, the recorder did not refer in his judgment to the 2009 request.
(3) The Law
(3)(a) Strike-out and Summary Judgment
- CPR 3.4(2)(a) provides as follows:
"The court may strike out a statement of case if it appears to the court
(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;"
- CPR 24.3 provides as follows:
"The court may give summary judgment against a claimant or defendant on the whole of a claim or on an issue if
(a) it considers that the party has no real prospect of succeeding on the claim, defence or issue; and
(b) there is no other compelling reason why the case or issue should be disposed of at a trial."
(3)(b) The Limitation Act 1980
- Section 2 of the Limitation Act 1980 provides as follows:
"An action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued."
- It is well established that a cause of action founded on tort accrues if:
(1) the defendant owes the claimant a duty in tort;
(2) the defendant breaches that duty; and
(3) the claimant suffers loss as a result.
- There is a helpful discussion of what constitutes a continuing nuisance in paragraphs 24 to 40 of Lord Burrows' judgment in Jalla v Shell International Trading and Shipping Co Ltd [2024] AC 595 ("Jalla"), in which it was held that an oil spill was not a continuing nuisance, although its effects continued for so long as the oil remained on the claimants' land, with the result that the claimants' cause of action accrued when the oil first reached their land.
- Section 5 of the Limitation Act 1980 provides as follows:
"An action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued."
- It is well established that a cause of action founded on contract accrues when the defendant commits a breach of contract.
(3)(c) Different Types of Duty
- It is possible for a contractual or tortious duty to be continuing in nature, such as a covenant to keep property in good repair or the duty not to commit a nuisance.
- Alternatively, a duty may require a party to do something within a fixed time or within a reasonable time. For instance, Chitty on Contracts, 35th Edn, ("Chitty") states as follows in paragraph 25-013:
"Where a party to a contract undertakes to do an act, the performance of which depends entirely on itself, and the contract is silent as to the time of performance (or merely uses indefinite words such as "with all dispatch") the law implies an obligation to perform the act within a reasonable time having regard to all the circumstances of the case.
"
- Many authorities are cited for this proposition.
- Paragraph 25-013 also states as follows:
"
When deciding whether or not performance has taken place within a reasonable time, a court is not limited to what the parties contemplated or ought to have foreseen at the time of entry into the contract but can, with the benefit of hindsight, take account of a broad range of factors, including any estimate given by the performing party of the time which it would take for it to perform, whether the party for whose benefit the relevant obligation was to be performed needed to participate in the performance, whether it was necessary for a third party to collaborate with the performing party in order to enable it to perform, and the nature of the cause or causes of any delay in performance."
- The type of duty can affect the question of when a cause of action accrues. Chitty states as follows in paragraph 32-035:
"Successive and continuing breaches Where the innocent party elects to treat himself as discharged from further performance consequent upon a breach of the contract, time begins to run immediately. For instance, if there is an anticipatory breach accepted by him as a repudiation of the contract, his cause of action accrues at once, and not from the failure of the party in default subsequently to perform at the time fixed for performance. Similarly, if:
"
the obligation is to perform an act by a given date or (as the case may be) within a reasonable time, that is an obligation which can only be broken once"
and time will start to run from that date, even if the breach was one that could have been remedied. But if there are one or more breaches which do not give rise to a discharge either because they are not suffciently fundamental or because the innocent party declines to accept them as having that effect, each will give rise to a separate cause of action. There may also be a series of breaches of a single covenant. Examples are failure to pay instalments of interest or rent. Or the breach may be a continuing one, e.g. of a covenant to keep in repair. In such a case the claimant will succeed in respect of so much of the series of breaches or the continuing breach as occurred within the six (or 12) years before action brought. In Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp the failure of a solicitor to register an interest in land was held to constitute a continuing breach of his retainer, so the client's cause of action did not become barred until six years after registration ceased to be possible. But in subsequent cases involving similar facts this decision has either been distinguished or doubted; and the Court of Appeal has held (albeit it in a case not involving any question of limitation) that it is now to be regarded as wrongly decided. Time will therefore start to run when the act should have been carried out."
- The quotation in this paragraph is from Slade LJ's judgment in Farimani v Gates [1984] 2 E.G.L.R. 66, 69, although that was a case on waiver, not limitation.
- Bell v Peter Browne & Co is cited in Chitty as a case in which Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp [1979] Ch. 384 was distinguished or doubted. In Bell v Peter Browne & Co the defendant solicitors negligently failed to prepare or execute a formal declaration of trust or other suitable instrument or to cause appropriate entries to be made on the register at the time property was transferred by the claimant and his wife to the wife in the context of their divorce. Although the position could have been remedied at any time before the former wife sold the property, nearly 8 years later, the Court of Appeal held that the causes of action in contract and in tort accrued when the property was transferred.
- The claimant argued that the solicitors owed him a continuing contractual duty to protect his interest in the property and that that duty continued until it became incapable of performance (i.e. when the property was sold) or until it was repudiated by the solicitors and that repudiation was accepted by the claimant. This argument was unsuccessful.
(3)(d) Kelly
- Kelly v Mersey Docks & Harbour Co [2005] Pens. L.R. 133 ("Kelly") was a case in which the defendant employer was found to have been in breach of duty in asking itself the wrong question when deciding whether or not to give the consent required by a provision in the rules of a pension scheme which said that a pension could be paid, in the trustees' discretion, to someone "who retires from the service with the consent of the Employer by reason of partial incapacity".
- Mance LJ dealt briefly with the issue of limitation in paragraph 54 of his judgment, when he said:
"The other defence raised is limitation. Miss Kelly's claim form was delivered to the court on 31st August 2001, so that, having regard to the six year time limit provided under the Limitation Act 1980, it is common ground that her claim is time barred unless it is in respect of a breach of contract or duty by the Company occurring on or after 31st August 1995. The Company submits that any breach was committed prior to that date when it decided to refuse consent to retirement by reason of incapacity, as evidenced by its letter dated 29th August 1995. However, the breach involved failure to consent to retirement from the service by reason of incapacity. Consent for the purposes of rule 9 could have been given at any time up to the termination of Miss Kelly's employment on 31st August 1995. Indeed, it may well be that it could have been given even subsequently and retrospectively. Mr King also submits that it is only the communication to Miss Kelly of the refusal of consent that could involve any breach, and that the (first class) letter of 31st August 1995 must be taken to have been received only on 31st August 1995. I would agree with the first part of this submission, but the basis for the second part (and on whom the onus lies one way or another) are matters open to debate, into which I need not go."
- However, Mance LJ's observation that it may well be that consent in that case could have been given subsequently and retrospectively was tentative, did not form part of the ratio of that case and did not involve any analysis of how long after the termination of the employment any duty to give consent would have continued.
(4) The Issues
- The claimant has advanced four grounds of appeal:
(1) Ground 1 challenges the recorder's decision that this was not a case of continuing breach of duty.
(2) Ground 2 challenges the recorder's decision insofar as he held that a breach of duty in 2002 or 2008 set the limitation period running for causes of action arising thereafter.
(3) Ground 3 challenges the recorder's decision that this was not a case of continuing loss.
(4) Ground 4 challenges the recorder's decision insofar as he held that only a fresh decision could give rise to a breach of duty.
- In addition, the defendant has advanced in the respondent's notice three different or additional grounds:
(1) Additional ground 1 is that the pleaded duties are not capable of being continuing duties.
(2) Additional ground 2 is that the claimant has no real prospect of establishing that there was a continuing breach of duty.
(3) Additional ground 3 is that the claim for damages is bound to fail for want of causation because there is no evidence that the pension trustees would have exercised their discretion differently if the defendant had given a different opinion.
- I will deal with these various grounds under the heading of continuing breach of duty (i.e. grounds 1, 2 and 4 and additional grounds 1 and 2), continuing loss (i.e. ground 3) and causation (i.e. additional ground 3).
(5) Continuing Breach of Duty
(5)(a) Continuing Breach of Duty: Submissions
- The claimant did not dispute that, insofar as the defendant was in breach of its alleged contractual duty in forming the 2002 and 2008 opinions, the cause of action which accrued in 2002 or 2008 was statute-barred. The same applied to any breach of the alleged tortious duty in 2002 or 2008, subject to the point about continuing loss, which I will address separately.
- The claimant's primary case was that the defendant's alleged contractual and/or tortious duties were continuing duties which continue to this day, on the basis that the defendant had a duty to state a valid opinion, but it has never done so and that, even today, a revised statement of opinion would lead to the claimant being given, back-dated, the pension to which he claims that he is entitled.
- However, the claimant also submitted in the alternative that:
(1) The 2009 request imposed a fresh duty on the defendant to give an opinion and to form that opinion properly and that the defendant was in breach of that duty because it had not given an opinion in response to the 2009 request, either at all or within a reasonable time.
(2) The correspondence in 2018 imposed a fresh duty on the defendant.
- The claimant submitted that the alleged duties arose in contract or in tort, but did not submit that there was any difference between the alleged contractual or tortious duties.
- The defendant's primary submission was that its only duty was to express an opinion in 2002 and that, if there was a breach of duty in relation to the formation of the 2002 opinion, the limitation period in respect of that breach expired in 2008. The defendant also submitted that the recorder was right to hold that it was not subject to any continuing duty.
- In particular, the defendant submitted that it was under no obligation to express any further opinion, either in 2008 or in response to the 2009 request, since the trustees had no power to request a further opinion unless and until a court set aside the 2002 opinion. In any event, the defendant submitted that the limitation period in respect of any breach of duty committed in 2008 expired in 2014 and that any cause of action in respect of its failure to give a new opinion in response to the 2009 request arose upon the expiry of a reasonable time after the 2009 request, which was much more than 6 years before the issue of the claim form on 14 June 2022.
(5)(b) Continuing Breach of Duty: Decision
(5)(b)(i) The Nature of Any Duties Owed
- Like the recorder, I consider that it is arguable that the defendant owed a contractual and/or tortious duty to the claimant and that the defendant was in breach of that duty. However, it is necessary to consider what is arguable as to the nature and extent of that duty.
- Given the terms of the pension scheme and the decision in Kelly, it is certainly arguable that the defendant owed the claimant a duty following the claimant's dismissal which can be said to have had two parts: the first part was to express an opinion whether the claimant had been dismissed for incapacity and the second part was to approach the task of forming that opinion in the appropriate manner. It is unnecessary for present purposes to choose between the various formulations which the claimant has proposed of the second part of the alleged duty. For the sake of convenience, I will refer to the defendant's alleged duty as a duty to exercise reasonable care and skill in forming its opinion, while recognising that there are other potential formulations of the alleged duty. The claimant was a former employee of the defendant who may have been entitled to a valuable pension, but who could not apply for such a pension unless the defendant expressed the appropriate opinion. Those facts alone appear to make it difficult for the defendant to argue that: (a) it was entitled to express no opinion; or (b) if it expressed an opinion, it was not obliged to approach the task of forming that opinion properly.
- I also consider that it is arguable that the defendant had a duty to reconsider its opinion when asked to do so by the trustees and that the defendant also had a duty, when it reconsidered its opinion, to exercise reasonable care and skill. I make no decision in respect of the defendant's argument that the trustees had no power to ask the defendant to reconsider its opinion, save to say that I do not consider that argument to be so compelling as to lead either to the striking out of the claimant's claim or summary judgment against the claimant. From the defendant's perspective, the trustees were giving active consideration to the question whether to give the claimant a pension and had asked for the defendant's assistance in that regard. That, in my judgment, was sufficient to make it arguable that the defendant was under a duty both to provide the requested opinion and to exercise reasonable care and skill in forming that opinion.
- The defendant provided the 2002 and 2008 opinions. Any breach of duty in forming those opinions resulted in a cause of action which accrued in 2002 or 2008 (subject to the continuing loss point), with the result that any claim for damages in that respect is statute-barred.
- The defendant did not provide an opinion in response to the 2009 request. I consider that it is arguable that the defendant should have done so and (as the recorder held) that a properly formed opinion would have been that the claimant was dismissed for incapacity. However, I also consider that any duty which the defendant owed to provide an opinion in response to the 2009 request was a duty to do so in a reasonable time. Insofar as the alleged duty arose as an implied term of the claimant's employment contract, this is consistent with the law as stated in paragraph 25-013 of Chitty. Insofar as the alleged duty was a tortious one imposed by operation of law, there is no reason why the tortious duty (if any) should be more extensive than the alleged contractual duty.
- I agree with the recorder that it is not arguable that the defendant owed the claimant an open-ended continuing duty of the kind contended for by the claimant. Bell v Peter Browne & Co and the other cases cited in paragraph 32-035 of Chitty are against the implication or imposition of such a duty. Although they concerned different factual situations, they are illustrations of the general proposition that the court will be slow to imply or impose a duty on a defendant to correct his own breach of duty.
- Insofar as the claimant contends that there was an implied term of his employment contract, a term will not be implied into a contract unless it is necessary to do so and the term contended for by the claimant was not necessary in the present case. For substantially the same reasons, the law will not impose an open-ended continuing tortious duty where it is not necessary to do so.
- I have quoted the passage from the claimant's skeleton argument before the recorder in which the claimant identified all of the authorities relied on in support of his contention that the defendant owed him a contractual or tortious duty, but I note that I was not taken to any of those authorities and it was not suggested to me that any of those authorities contained any support for the proposition that the defendant was not merely under a duty of the kind I have found to be arguable, but was under the open-ended continuing duty of the kind contended for by the claimant.
- I do not consider that it is arguable that events in 2018 gave rise to a duty on the part of the defendant. What happened in 2018 was that the claimant's solicitors repeated the claimant's request for the defendant to provide a fresh opinion and, by the letter of 6 November 2018, the defendant confirmed that it would not do so. It is not arguable that either of these activities gave rise to a duty on the part of the defendant. As the recorder observed, the defendant's letter was not a fresh opinion expressed to the trustees, but confirmation to the claimant that the defendant would not be providing a fresh opinion.
- The claimant could have brought a claim against the defendant at any stage after September 2002, subject to the applicable limitation periods. It is not open to the claimant unilaterally to extend the limitation period simply by writing letters to the defendant. As Lord Burrows said in paragraph 39 of his judgment in Jalla:
"To accept Mr Seitler's submission would be to undermine the law on limitation of actions which is based on a number of important policies principally to protect defendants but also in the interests of the state and claimants (see Limitation of Actions (1998) (Law Com Consultation Paper No 151), paras 1.221.38) because it would mean that there would be a continual re-starting of the limitation period until the oil was removed or cleaned up."
(5)(b)(ii) Reasonable Time
- The 2009 request was made on 14 October 2009. As I have said, it is arguable that the defendant was under a duty to provide a fresh opinion within a reasonable time thereafter. It is clear that the defendant did not do so. It follows that the defendant was in breach of the alleged duty once a reasonable time had expired. The question arises, therefore, whether a reasonable time had expired by 14 June 2016, i.e. 6 years before the issue of the claim form.
- Submissions were made to me on this question, but I do not consider that it would be appropriate for me to decide it on the current state of the evidence. It is not an issue which the recorder dealt with in his judgment, which, as I have said, did not mention the 2009 request. Each party's pleaded case is that the other party was responsible for the delay after the 2009 request, which indicates that the significance of this question was not appreciated when the parties produced their statements of case. Nor was this question addressed in the witness statement or skeleton argument relied on by the defendant before the recorder.
- Some correspondence from the period 2009 to 2014 has been produced, but it is plainly incomplete. It may be that, given the passage of time, that will prove to be all that can be found, but I cannot be sure of that. For instance, the claimant's then solicitor, Justin Govier, was party to this correspondence and he is a potential source of documents and/or evidence. It could be said that the claimant should have obtained and deployed any material available from Mr Govier before the strike-out application was heard, but that consideration is significantly tempered by the fact that this question was not raised by the defendant in its witness statement or skeleton argument.
- There was a long delay between 2009 and 2016, but the correspondence which I have seen suggests that the claimant was responsible for at least a significant part of the delay. For instance, he was sent a consent form on 15 October 2010 for him to give his consent to the release of his medical records, but he did not return the form until 9 July 2012. In accordance with the law as stated in paragraph 25-013 of Chitty, the claimant's conduct is relevant to an assessment of what was a reasonable time for the defendant to provide a fresh opinion.
- In all the circumstances, I will allow the appeal to the limited extent of permitting the claimant to pursue his claim that the defendant was in breach of duty in not providing a fresh opinion within a reasonable time after the 2009 request.
(6) Continuing Loss
(6)(a) Continuing Loss: Submissions
- The claimant submitted that he suffered loss, and therefore a fresh cause of action in tort arose, every month when he was not paid the pension which he says that he should have been awarded.
- The defendant submitted that the loss, if any, suffered by the claimant was the loss of the opportunity to have the trustees decide whether or not to award him a pension and that that loss was suffered, if at all, when the defendant provided the 2002 opinion.
(6)(b) Continuing Loss: Decision
- In my judgment, the claimant has not suffered a fresh loss every month. In relation to the 2002 opinion, for instance, his case is that, if the defendant had correctly performed its duty, it would have expressed the opinion in 2002 that he had been dismissed for incapacity and the trustees would have decided to award him a pension. It is clear that his alleged loss is the pension and that he suffered that loss in 2002. The fact that the pension would have been payable monthly for the rest of his life (subject to the possibility of suspension, revocation or reduction of the pension) did not mean that he suffered a fresh loss every month. The claimant could have sued in 2002 for damages assessed by reference to the value of the pension. The present case is, in this respect, akin to the situation in Jalla, where there was a single tort, albeit with lasting consequences.
- The same analysis applies in relation to the claim in respect of the 2008 opinion and the defendant's alleged failure to produce a fresh opinion within a reasonable time after the 2009 request.
(7) Causation
(7)(a) Causation: Submissions
- The defendant submitted that the claimant could not show that any breach of duty on its part had caused the loss of the claimant's pension, because: (a) there is no evidence as to how the trustees would have exercised their discretion; and (b) the claimant has pleaded that he lost the pension, not that he lost a chance of getting a pension.
- The claimant submitted that it is clear that the trustees would have decided to give him a pension if the defendant had expressed the opinion that he had been dismissed for incapacity.
(7)(b) Causation: Decision
- I do not consider that the claimant's damages claim is bound to fail on causation grounds. In the light of the defendant's argument, the claimant will want to consider what, if any, evidence he can call in support of his case as to what the trustees would have done if the defendant had expressed the opinion that he had been dismissed for incapacity, but it may be that this is an issue where the court can make its own assessment, especially in the absence, as appears to be the case, of any evidence of a reason why the trustees would not have awarded the claimant a pension.
- As for loss of a chance, during the hearing I encouraged the claimant to consider seeking permission to amend the particulars of claim so as to plead the loss of a chance in the alternative. I note that the claim in Kelly succeeded on the basis of loss of a chance. However, I do not consider that the absence of such a pleaded alternative means that the pleaded case is bound to fail. Again, the apparent absence of any evidence of a reason why the trustees would not have awarded the claimant a pension is a potentially significant factor.
(8) Conclusion
- For the reasons which I have given, I allow the appeal to the limited extent of permitting the claimant to pursue his claim that the defendant was in breach of duty in not providing a fresh opinion within a reasonable time after the 2009 request. In all other respects, I dismiss the appeal.
