Neutral Citation Number: [2006] EWHC 2582 (QB)
Case No: N5BH01448
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
APPEAL FROM BOURNEMOUTH COUNTY COURT 
The Law Courts
The Guildhall,
Small Street, 
Bristol BS1 1 DA

Date: 20 October 2006 
Before:
MR JUSTICE SILBER

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Between:

	(1)FRANCIS ALICE JESSUP
(2)IRIS HAZEL EMILY HARVEY
(3) GWENDOLINE GLADYS HORNEY
(4) SHIRLEY MAY KELLER
(5) PETER FRANKLIN HORNEY
(6) ROBERT ALAN HORNEY 
(7) VICTORIA MAY JAMES
(8) MAVIS ROSE CATLIN	Claimants	
	- and -		
	(1) IAN SINCLAIR WETHERELL
(2) NORRIS BAZZARD & CO (a firm)	Defendants	
- - - - - - - - - - - 
- - - - - - - - - - - 

Teresa Rosen Peacocke (instructed by Frettons of Christchurch, Dorset) for the Claimants
Simon Wilton (instructed by Beachcroft LLP) for the Defendants
Hearing dates: 4 and 5 October 2006
- - - - - - - - - - - 

JUDGMENT
The Honourable Mr. Justice Silber: 
1. Introduction
 
	1. Francis Alice Jessup, Iris Hazel Emily Harvey, Gwendoline Gladys Horney, Shirley May Keller, Peter Franklin Horney, Robert Alan Horney, Victoria May James and Mavis Rosie Catlin (“the claimants”) wish to appeal an order of District Judge Dancey made on 6 April 2006 in which he held that there should be summary judgment pursuant to CPR 24.2 for Ian Sinclair Wetherell and Norris Bazzard & Co (“the defendants”) against the claimants on the basis that the claimants’ claim was statute-barred.
	2. Permission to appeal was refused by the District Judge. I have heard an application for permission to appeal and if permission is granted, it has been ordered that the appeal has been listed for immediate substantive hearing. Ms Teresa Rosen Peacocke counsel for the claimants and Mr. Simon Wilton counsel for the defendants have stated that that on the substantive hearing, they would not wish to make any  submissions additional to those which they had  already made on the application for permission to appeal. So I will now give a judgment dealing with both the application for permission to appeal and, if permission is granted, with the substantive appeal
	3. The issue raised on this application is essentially a dispute as to the date on which the claimants’ cause of action arose against the defendants because the defendants contend that the present claim was not issued within the limitation period but this is strongly disputed by the claimants. There are also disputes on the length of the appropriate limitation period. 
II. Chronology.   
	4. On 8 April 1980, Amy Horney, the mother of all the claimants died. All the claimants together with three other children of Mrs Horney were beneficiaries of her estate under her will.
	5. On 6 April 1982, probate of Mrs Horney’s will was granted to her executors, who were Clinton Worsfold and Frederick Mills. One of the principal assets of the deceased’s estate was some freehold land. In April 1991, the first defendant was instructed to make a claim on behalf of the beneficiaries of the deceased’s estate against the executors for failing to deal with the land properly. By a writ issued on 10 March 1992, proceedings (“the first action”) were commenced by the beneficiaries against the executors claiming breach of trust and maladministration. 
	6. On 12 November 1991 the executors offered to resign and by a Deed of Appointment and Retirement of 30 April 1993, the executors were replaced by four of the beneficiaries as trustees. The first defendant, who had been the solicitor acting for the beneficiaries in the first action, moved to join the second defendants on 1 July 1997. On 29 January 1999, a notice of change of solicitors to the second defendants and of a notice of intention to proceed to apply to fix a hearing date of the beneficiaries’ claim in the first action was served by the defendants on the executors.
7. On 8 March 1999, the executors applied to strike out the claim in the first action. On 23 April 1999, the first action was struck out by Master Bowles. It is noteworthy that six years before the present claim was commenced (i.e. on15 April 1999) the application to strike out the first action had been issued but it had not yet been heard. This fact is central to the dispute between the claimants and the defendants on the present application.
8. On 15 April 2005, the present claim was brought on the basis that the defendants had been negligent and in breach of their duty of care to the claimants in their conduct of the first action. The claimants contend that there should be a suspension of the commencement of the limitation periods because of concealment by the defendants and also because the claimants did not have knowledge of the relevant facts so as to bring the second claim
III. The Issues
9. The defendants submit, as they did before the District Judge, first that the appropriate limitation period for the present claim is six years and second that the claimants’ cause of action against the defendants arose before 15 April 1999 with the result that the defendants are bound to succeed at trial on the limitation issue so that they should now be entitled to summary judgment.
10. The case for the claimant is  first  that the District Judge failed properly to analyse the facts and ratio decidendi of the relevant authorities relating to the commencement of the limitation period for the present claim, second that the facts of the present case (which  should not have been fully investigated at this stage) make the limitation issue unsuitable for determination on a summary application and third that the overriding objectives and the balance of justice requires that the claimants should have an opportunity to prove their case at trial especially as negligence and loss have already been admitted.
11. The issues that therefore have to be resolved on this appeal are;
		(A) what is the appropriate limitation period for the present claim?
		(B) when did that limitation period for the present claim commence; and 
	(C) whether in the light of all the circumstances this is an appropriate case  	in which to order summary judgment.       
12. Before embarking on consideration of these issues, I acknowledge that I have been greatly assisted by the admirable oral and written submissions of counsel as well as by the thoughtful, clear and impressive judgment of the District Judge to which I wish to pay special   tribute.   
IV. Issue A: What is the appropriate limitation period for the present claim?   
(i) Introduction 
13. There is a dispute between the parties as to when the limitation period for the present claim expired. It is common ground that the basic statutory rule is that an action founded on tort or on simple contract:
 “shall not be brought after the expiration of six years from the date from which the cause of action accrued”: sections 2 and 5 of the Limitation Act 1980 (“the 1980 Act”).
14. The defendants contend that this period of six years is the one, which is applicable to the present claim while the case for the claimants is that this period of six years has been extended by reason of the provisions of section 32 of the 1980 Act and/or of section 14A of that Act. The defendants contend that neither of those two provisions is relevant and so it becomes necessary to consider them in turn. 
(ii) Section 32 of the 1980 Act.
15. This provision has the heading “Postponement of limitation period in case of fraud, concealment or mistake”. It provides in so far as material to the present dispute that:
“(1)... where in the case of any action for which a period of limitation is prescribed by this Act, either-
		(a)…
 (b) any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant...
the period of limitation shall not begin to run until the plaintiff has discovered the ... concealment... or could with reasonable diligence have discovered it…”
16. In   Cave v Robinson Jarvis [2003] AC 384, Lord Millett explained at page 394 in a speech with which other members of the Appellate Committee agreed that:
	“25. In my opinion, section 32 deprives a defendant of a limitation defence in two situations: (i) where he takes active steps to conceal his own breach of duty after he has become aware of it; and (ii) where he is guilty of deliberate wrongdoing and conceals or fails to disclose it in circumstances where it is   unlikely to be discovered for some time. But it does not deprive a defendant of a limitation defence where he is charged with negligence if, as being unaware of his error or that he has failed to take proper care, there has been nothing for him to disclose”
17. There is no evidence in this case that there has been or might have been any deliberate concealment by the defendants of the kind described by Lord Millett  especially as the defendants had  informed the claimants in a letter dated 26 April 1999 that the first action had been struck out on 23 April 1999. It is true that the defendants refused to hand over their papers to the claimant’s solicitors until their outstanding fees were paid.  The defendants were entitled to take this stance as they were merely exercising their lawful lien on the relevant papers until they were paid. There is no allegation or evidence that the defendants took any other steps, which could possibly be regarded as amounting to concealment. 
18. It has been suggested on behalf of the claimants that they should be entitled to discovery as this might provide to the claimants some further documents to support   a claim based on section 32. I am unable to accept that submission as there is no factual basis for assuming or predicting that there would or could   be any evidence whatsoever of concealment that might be disclosed on discovery. Thus I reject the contention that section 32 is of any assistance to the claimants.
(iii) Section 14A
19. This provision has the heading “Special time limits for negligence actions where facts relevant to cause of action are not known at date of   accrual”. If this provision applies, the consequence would be   that the time limit for the present claim would according to section 14A (4) of the 1980 Act   be the later of   the end of the period of six years from the date on which the cause of action against the defendants accrued and the end of a period of three years from:
	 “the earliest date on which  the plaintiff or any person in whom the cause of action was vested before him 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” (section 14A(5)).
20. In Haward and others  v Fawcetts [2006] 1 WLR 682, the House of Lords had to consider the approach to section 14A of the 1980 Act and it was explained in that case that:
	(a) “it is not necessary for the claimant to have knowledge sufficient to enable his legal advisors to draft a fully and comprehensively particularised statement of claim” [10] per Lord Nicholls of Birkenhead;
	(b) “Knowledge of fault or negligence is not necessary to set time running. A claimant need not know he has a worthwhile cause of action” ibid [12];
	(c) Knowledge of [facts said to constitute negligence] is needed before time begins to run, knowledge of the... (legal consequences of the facts) is irrelevant” ibid [12];
	(d) “the plaintiff must know enough for it to be reasonable for him to begin to investigate further” ibid [9]; and
	(e) “a claimant must know there is a real possibility that damage was caused by (‘attributable to’) the acts or admissions alleged to constitute negligence” ibid [19];
21. In this case, as I have explained,   the claimants were told by letter from the defendants dated   26 April 1999 that the first action had been struck out three days earlier. In a witness statement   made on 16 March 2006,   Ms Michelle Hayter, a solicitor employed by the claimants’ solicitors, explained that it   was not until approximately 26 March 2002 that the papers held by the defendants relating to the first action were released to the claimants’ present solicitors. Thus, it is said that the three-year period only ran from that time. Even if that is correct, it would mean the limitation period would not have been extended because the period of three years after 26 March 2002 would have expired not only before the present action was started but also before the expiry of the six-year period from the time when the first action was doomed to failure or was struck out. For the purpose of completeness I ought to say that the delay in handing over papers by the defendant’s present solicitors would appear to have been caused by the fact the defendants exercised as they were entitled to a lien on those papers relating to the first action until the claimants paid all outstanding fees.
(iv) Conclusion    
22. I do not consider that the claimants can derive any assistance from either section 32 or section 14A of the 1990 Act. In my view, there was a six year limitation period for the present claim   and thus it becomes necessary to ascertain if the claimants’ cause of action had accrued before 15 April 1999, which is six years before the present claim was commenced.

V. Issue B. When did the limitation period for the present claim commence?

(i) Introduction

23. Ms Peacocke contends that the claimants’ cause of action had not accrued six years before the present claim was commenced namely on 15 April 1999 with result that the present claim is not statute-barred. Mr Wilton disputes this and submits that the cause of action   had accrued before 15 April 1999 so that it is statute-barred.

24. As I have explained, the position in the first action on 15 April 1999 was that the defendant had issued an application to strike out the claim in that   action but this application   was not heard or granted until 23 April 1999. Thus, it is necessary to determine whether in the circumstances of this case, the claimants’ cause of action against the defendants had accrued by 15 April 1999 notwithstanding that the first action had not then been struck out even though  the court was about to hear  an application to strike out that action. The cause of action for the present action would have accrued if the claimants had suffered damage in respect of the claim contained in the first action by 15 April 1999. Ms Peacocke said that in those circumstances the claimant had not suffered any loss as that only occurred when the first action was struck out according to the decision of the Court of Appeal in Hopkins v Mackenzie [2001] Lloyd’s Law Report 600.

25. Mr Wilton accepts that the Hopkins decision supports the claimants’ submission but he  submits that it is no longer the test because the present position is (with my emphasis added) in the words of  Lord Mance in Law Society v Sephton & Co [2006] 2 WLR 1091 at 1111 [69] that:

“ a similar line of authorities establishes that the cause of action against a solicitor whose negligence deprives his client of a claim which the solicitor was engaged to pursue accrues when the claim becomes time barred or liable to be struck out for want of prosecution (thereby obviously eliminating or reducing the value of any claim)” 

26. I propose to consider the position in the light of the present evidence before considering the contention of Ms Peacocke that the appeal should be allowed because of the possibility of  further evidence becoming available which is a possibility that  I will consider in paragraphs 56 to 59 below.

(ii) What is the status now of 	Hopkins v Mackenzie?

27. In Hopkins v Mackenzie, the issue to be determined was whether a claim against solicitors was statute-barred because six years previously there had been only a risk that the underlying claim would be struck out but which at that stage had not then yet been struck out. The Court of Appeal held first that the cause of action accrued when the claimant had suffered   loss, which meant actual loss or damage not future loss and second that as the claim against the solicitor was for loss of a cause of action and of the right to advance his claim in court, the claimant suffered no loss until his cause of action was struck out.

28. In Malik Javid Khan v RN Falvey [2002] Lloyd’s Law Reports (Professional Negligence) 369, the Court of Appeal held if and insofar as Hopkins v Mackenzie had held that in new claims arising out of actions previously struck out for want of prosecution, there is no damage prior to the strike-out, that decision was wrong and was inconsistent with the decision of the House of Lords in Nykredit Mortgage Bank Plc v Edward Erdman Group Ltd (No 2) [1997] 1 WLR 1627. The Court of Appeal held in Khan’s case that if that was the effect of the Hopkins’ case, it ought not to be followed. Indeed, it is significant that in that case, the Court of Appeal reversed the decision of   the judge at first instance, who had held that a result of the Hopkins case, causes of action against solicitors for negligence in not pursuing an earlier claim did not arise until the earlier actions had actually been struck out.

29. Sir Murray Stuart-Smith explained in Khan’s case (with my emphasis added) that:

“28. A claim in tort is a chose in action and as such is assignable. But the value of the chose in action depends on the prospect of success. If for whatever reason it is very likely or almost bound to fail, whether because it is liable to be struck out for want of  prosecution, lack of merit or some other reason, it will have no value or substantial value. In my judgment the claimant in the present case could not have assigned his causes of action in Cases 1 and 3 for any real value for several years before they were actually struck out, because during that period there was an inevitability or at least a very serious risk that they would be struck out at any time. If this be right, as I believe it to be, it must follow that the claimant already suffered damage by diminution in the value of his chose in action well before the actual striking out of the actions.
 
29… when an action had gone to sleep for years, the actual application to strike out is not made till years after it might successfully have been done. In such cases it seems to me that the damage is caused when there has been such an excusable and inordinate delay or non-compliance with  rules such that the Court would have struck out the action and pursuant to CPR Part 3.4 because the chose in action has so diminished in value to be of no real value”.

30. Later in his judgment, he stated that: 

“33. In my judgment therefore and in so far as Hopkins v Mackenzie purports to hold there can be no damage in this type of case prior to the actual strike out, I cannot agree that it is correct or is consistent with Nykredit… if it is clear that the value of the chose in action has been substantially diminished before the limitation date the action will be statute barred..”

31. Chadwick LJ explained at page 380 [49] that if Hopkins v Mackenzie established that a cause of action against a solicitor who did not pursue an action only arose when the underlying action was actually struck out, then Hopkins v Mackenzie was inconsistent with the Nykredit case “and ought not to be followed” (see also similar comments at page 381[54]).

32. He later explained paragraph the very limited circumstances in which the Hopkins case could still be invoked when he said that:

“57. If the decision of this Court in Hopkins v. Mackenzie is understood, as I think it should be, as limited to those cases  in which the only loss on which the Claimant  seeks to found his cause of action is the loss of his right to pursue the earlier action by reason of the strike out- measured by, and confined to ,the residual value of the claim immediately before the actual strike out-then it cannot, in my view, be held to be inconsistent with the later decision in the Nykredit case. But the circumstances in which a claim can be advanced on that limited basis are likely to be rare. As soon as the Claimant seeks to found his cause of action on the diminution in the value of his claim arising from a period of delay, the decision in Hopkins v Mackenzie is of no assistance.”

33. Schiemann LJ agreed with the decision by explaining (with my emphasis added) at page 382   that:

“63...I consider that it is manifest that circumstances can exist when a claimant, who had an action against a tortfeasor which is not pursued with due diligence by his solicitor, suffers loss as a result of that lack of diligence before the underlying action is struck out.”

34. In Hatton v Chafes [2003] PNLR 24, the Court of Appeal again had to reconsider the Hopkins’ case   when hearing a strike-out application made on the basis that the   claim had been statute-barred. In that case, the claimant had instructed the defendant solicitors in 1984 to issue a writ which they did in January 1987 in respect of wrongful acts in 1983. In October 1995, the claimant was warned by the solicitors that there was a chance of those proceedings being struck out for want of prosecution. The proceedings were indeed eventually struck out on 8 June 1999. The proceedings by the claimants against the defendant solicitors were issued on 13 October 2000 alleging negligence in respect of the 1997 action. The Court of Appeal struck out the claim because the cause of action against the defendant solicitors arose not at the time of the strike-out but when the right of action became worthless. The basis of that decision was   that the latest time when this occurred   was when a strike-out application would have been bound to succeed and this was well before the time when the action was actually struck out.

35. Clarke LJ (with whom Peter Gibson LJ and Sir Anthony Evans agreed) stated at page 493[14] that the Court of Appeal had held in Khan’s case that the decision in Hopkins v Mackenzie:

 “did not compel the courts to reach [a conclusion that the cause of action pleaded in the second action did not arise until the first action was actually struck out because no damage occurred until then] or, if it did, that it was wrong and should not be followed in the light of the decision of the House of Lords in Nykredit”. 

36. In his judgment, Clarke LJ explained at page 493 [15] that Khan’s case:

“is authority for the proposition that it is not a condition precedent for any claim against defendants’ solicitors that the underlying action should have been struck out. That is because the claimant may have suffered relevant damage before an order is made striking the action out”. 

37. In   Polley v Warner Goodman & Street [2003] PNLR 40 the Court of Appeal had again to consider the date when a cause of action for solicitors’ negligence accrued. Clarke LJ (with whom Lord Woolf CJ and Auld LJ agreed) stated (with my emphasis added) that Khan’s case:

“19... is authority for the proposition that it is not a condition precedent   that any claim against the defendant’s solicitors that the underlining actions should be struck out or come to an end. That is because the claimant may have suffered relevant damage before an order is made striking the action out or bringing it to an end. That is because the claimant may have suffered relevant damage before an order is made striking the action out or bringing it to an end”. 

38. More recently in Cohen v Kingsley Napley [2005] PNLR 37, Pill LJ explained (with my emphasis added) that:  

“[19] Whether a cause of action has value at the material time [for limitation purposes] will  depend, first on whether it would have been struck out had an application been made”.

39. In the recent case of the Sephton [supra], as I have explained in paragraph 25 above, Lord Mance considered that a cause of action against a solicitor whose negligence deprives a client of a claim which the solicitor was engaged to pursue accrues not merely when the action becomes time-barred but also when it is:

“liable to be struck out for want of prosecution( thereby obviously eliminating or reducing the value of any claim)”.

40. A similar approach was adopted by Lord Walker of Gestingthorpe who stated at page 1105 (with my emphasis added)   that: 

“47.. when a client instructs a solicitor to bring a claim for damages. His claim is a chose in action and it in fact entrusted to the solicitor to bring it to maturity. The solicitor is liable for making his client’s chose in action valueless if he carelessly allows it to become statute-barred (or “doomed to failure”) because a striking out application would be bound to succeed..”

41. In reaching that conclusion,   Lord Walker relied on the comments made in Hatton’s case to which I have already referred in paragraphs 34 to 37 above. I should add that it is common ground that the actual decision in Sepheon (supra) is of no relevance to the present application.

42.  I therefore conclude that a claimant’s cause of action against   defendant solicitor for failing to pursue expeditiously an earlier claim accrues when that earlier action is   “doomed to failure” (per Lord Walker) or “liable to be struck out for want of prosecution( thereby obviously eliminating or reducing the value of any claim)” (per Lord Mance) or  “ there was an inevitability or at least a very serious risk that they would be struck out at any time” ( per Sir Murray Stuart Smith) or has suffered “relevant damage”( per Clarke LJ) or “it would have been struck out had an application been made”( per Pill LJ). As I will explain, it is unnecessary to decide which of these formulations would apply.

43. Thus this leads me to consider the issue of whether the claim in the first action of the claimants was “doomed to failure” as at 15 April 1999

(iii) Was the first claim “doomed to failure” as at 15 April 1999?

44. Mr Wilton contends that the first claim was indeed “doomed to failure” on 15 April 1999 while Ms Peacocke disputes that contention.

45. Ms Peacocke contends that there was no period of limitation in respect of the first action in the light of the decision of the Court of Appeal in Green and Others v Gaul and others [2006] EWCA Civ. 1124.  Although Mr Wilton initially agreed with that submission, he later contended that it was incorrect. In the light of my conclusions on other matters, it is unnecessary for me to resolve this matter and I am prepared to assume for the purposes of this application (but not to decide) that Ms Peacocke is correct and that there was no period of limitation in respect of the first claim.

46. The Green case also establishes that the doctrine of laches is not excluded by the 1980 Act (see paragraphs 33-40) and can still apply in a case such at that made in the first action.

47. It is noteworthy that in Arbuthnot Latham Bank Ltd and others v Trafalgar Holdings Ltd and others [1998] 1WLR 1426, Lord Woolf CJ giving the judgment of the Court of Appeal explained that:

(a) “it is already recognised by Grovitt v Doctor [1997] 1WLR 640 that to continue litigation with no intention to bring it to a conclusion can amount to an abuse of process” (page 1436 F);
(b) “  while an abuse of process can be within the first category identified in Birkett v James [1978] AC 297 it is also a separate ground for striking out or staying an action.. which does not depend on the need to share prejudice to the defendant or that a fair trial is no longer possible” (page 1436 H); and 
(c) “ the more ready recognition that hold so failure, as such to comply with the rules justifies an action being struck out, as long as it is just to do so, will avoid much time and expense being incurred in investigation questions of prejudice, and allow the striking out of actions whether or not the limitation period has expired” (ibid).

48. Subsequently it was held by the Court of Appeal in Choraria v Sethia (15  January 1999) that the principles of law set out in Arbuthnot case applied to breaches of  rules or orders committed before the decision in that case and not just to those committed subsequently. So it now becomes necessary to apply those principles in the Arbuthnot case to the present case.

49. The chronology of the first action is disturbing. The writ was issued on 16 March 1992. Pleadings closed in June 1992 at the latest but the defendants only issued the summons for directions on 8 April 1993. Directions were made on 13 May 1993 when it was ordered that discovery should take place by 27 May 2003 and that the action be set down on or before 10 June 1993. The action was not set down until 17 November 1994. On 10 July 1995, Harman J ordered that an application to fix a date for trial was to be made by 24 July 1995 and in default, the action should be removed from the warned list. 

50. No such application was made and the matter was removed from the warned list on 3 August 1995. The action had not been set down by   April 1999 even though it should have been set down by 10 June 1993 and the action had not proceeded beyond discovery. The plaintiffs had served their list of documents in August 1994 and the defendants served their list of documents on 16 August 1994. The plaintiffs still had not completed discovery in 1999 even  though they had been ordered to complete it by 27 May 1993. Notice of intention to proceed was served on 29 January 1999.  

51. Thus in April 1999, the regrettable state of the first action  was that almost seven years had elapsed since the start of proceedings and at that time no step in the action had been taken for over five and quarter years. Orders for directions had not   been complied with by the plaintiffs. The first action was struck out and not surprisingly nobody suggested that the claimants should appeal that order.

52. In my view  by April 1999, the first action was clearly “doomed to failure” (per Lord Walker) or “liable to be struck out for want of prosecution( thereby obviously eliminating or reducing the value of any claim)” (per Lord Mance) or  “ there was an inevitability or at least a very serious risk that they would be struck out at any time” ( per Sir Murray Stuart Smith) or has suffered “relevant damage”( per Clarke LJ) or “it would have been struck out had an application been made”( per Pill LJ).

53. It is necessary to stress that the claim that is being made in the present action was that as a result of the negligence of the defendants the claimants had suffered   loss and damage and in the words of paragraph 29 of the Particulars of Claim “in particular the loss of the   substantial chance of prosecuting their claims against the Executors at a trial, or to  a satisfactory compromise before the trial of their action” as well as substantial inconvenience or distress. This shows that it is very different from the situation described by Chadwick LJ in paragraph [57] of  Khan’s case and quoted in paragraph 32 above  as being the limited situation in which the approach in Hopkins is still to be regarded as good law.

54. Put in another way, the claimants had a chose in action (namely their claim against their defendants) and it had been greatly reduced in value as at the start of April 1999 because of the claimants’ reduced ability to obtain a satisfactory compromise with the hearing of   a serious strike-out application then being   pending. In my view, the claimants could then have commenced proceedings against the defendants and no court would have held that to be premature. 

55. In consequence, the claimants’ cause of action against the defendants had crystallised by the latest at the beginning of April 1999 with the result that on the evidence before me   the present claim, which was issued on 23 April 2005, was by then  statute-barred. I must now consider if any further evidence might be forthcoming which would assist the claimants.

(iv) Is there any further evidence which might become available which will or might assist the claimants to avoid summary judgment on the limitation issue?

56. It is appropriate at this stage to consider a submission from Ms Peacocke   that   this action should not be struck out because   expert evidence or other evidence might emerge to assist the claimants to show that the claim was not statute-barred. She relied on the recent decision of Creswell J who in the case of Great North Eastern Railway Ltd v JLT Corporate Risks Ltd [2006] EWHC 1478(QB)   held that on the facts of that case, there were compelling reasons why a limitation issue in that case should be disposed of at trial where expert evidence as to the relevant practice of insurance brokers was likely to inform and to assist the court as to the extent and nature of any continuing duties of a broker after placement in relation to the need to obtain an agreed policy wording and to provide it to the insured. 

57. I have been unable to discover what possible expert evidence could be of any relevance to the present case, which raises on limitation a bare issue of law relating to when the claimants’ cause of action arose. I have considered with care if   further discovery might assist the claimants as if there is such evidence, this fact might assist the claimants at a subsequent trial. I have concluded that no such discovery is likely to be forthcoming   not least because the claimants have had access to the defendants’ documents and it is not suggested that there are any further documents available, which still have not been disclosed. 

58. Ms Peacocke sought to derive some assistance from the fact that there had been without prejudice negotiations proceeding up till the time when the first action was struck out. The existence of such discussions does not assist the claimants because there is no evidence of what (if anything) was being offered by the defendants’ solicitors. If, as is quite possible, they were merely suggesting that the action should be dismissed with no order for costs, this would not assist the claimants. Indeed, there is no likelihood that any new evidence will become available which will show what sum  (if any) was being offered by the defendants.  

59. Thus I conclude that the limitation defence will succeed.

VI. Issue C. In all the circumstances, is this an appropriate case in which to order summary judgment?

 (i) Introduction.

60. I must now carry out a two-stage inquiry of which the first step is to determine whether permission to appeal should be granted and if so, whether the appeal should be allowed. Ms Peacocke contends that in any event I should grant permission to the claimants to appeal   from the decision below but that is disputed by Mr. Wilton who contends that the merits of the claimants’ grounds of appeal fail to reach the threshold required to obtain permission.
(ii) The relevant principles.

61. Ms Peacocke   stresses that in deciding whether to grant permission  I should not conduct a mini-trial and I will not do so. The established principles for granting permission to appeal  are well-known and are  set out in CPR 52.3(6) and in Civil Procedure (2006 Edition Volume 1 paragraph 52.3.6) By the same token, the approach to summary judgment is set out in CPR Part 24.2 and in the notes  to that Part in Civil Procedure..

62. I will bear those settled and clearly established principles in mind and I will not bother to repeat them as they are now very well-known and not controversial.

63. In my opinion, the case for the claimants fails to reach the threshold required to obtain permission to appeal the summary judgment. In summary, the case for the claimants in the first action was doomed to being struck out   by   April 1999 and by then   the value of the claimants’ asset – namely the claim in the first action- had been very greatly reduced. It does not matter which of the tests set out in the cases and which are summarised in paragraph 52 above applies, the claimants’ cause of action had accrued before 23 April 1999. So the claimants had suffered loss and damage by then and the limitation period of six years had started to run by then with the result that it had expired by the time the present claim was started on 23 April 2005. In reaching that conclusion, I have taken into account my conclusion that there is no reason to believe that any further evidence could come to light which could affect these conclusions. Thus the defendants are correct in contending that the present claim is statute-barred and the strength and cogency of their case on this issue means that I must refuse permission to appeal from the clear and thoughtful judgment of the District Judge.

64. I can only extend my sympathies to the claimants, who still have not had their claim determined twenty-six years after their mother’s death and fourteen years after they first issued their writ in the first action.  I appreciate that this decision will be a great disappointment to the claimants and also to their solicitors but they can be consoled by the fact that Ms Peacocke has argued forcefully and clearly every point which was open to the claimants.