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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Christie v The Mary Ward Legal Centre [2022] EWHC 1684 (QB) (01 July 2022) URL: http://www.bailii.org/ew/cases/EWHC/QB/2022/1684.html Cite as: [2022] PNLR 25, [2022] EWHC 1684 (QB) |
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QUEEN'S BENCH DIVISION
B e f o r e :
A Master of the Senior Courts Queen's Bench Division
____________________
Ms Anna Christie | Claimant | |
v | ||
(1) The Mary Ward Legal Centre | ||
(2) Mr Andrew Dymond | Defendants |
____________________
Mr Wood, counsel for the First Defendant, instructed by Anthony Gold Solicitors LLP
Mr Maxwell, counsel for the Second Defendant, instructed by Messrs. Browne Jacobson LLP
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Crown Copyright ©
Judge Victoria McCloud:
"Time limit for actions founded on tort.
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."
The authorities
At 58 Gloster LJ stated:
"… at is clear is that determination of the issue is critically dependent on the circumstances arising in any particular case. Thus, although there appears to be a tension between certain statements made in some cases, when compared to what is said in others, I am not persuaded that it is either necessary, or appropriate, for this Court in this case to reconcile what may be differently nuanced approaches to what, at the end of the day, is essentially a factual question: namely, when did the claimant first suffer actual damage as a result of the professional negligence."
"What is meant by actual damage? Mr Stuart-Smith says it is any detriment, liability or loss capable of assessment in money terms and it includes liabilities which may arise on a contingency, particularly a contingency over which the plaintiff has not control; things like loss of earning capacity, loss of a chance or bargain, loss of profit, losses incurred from onerous provisions or covenants in leases. They are all illustrations of a kind of loss which is meant by 'actual' damage."
"Lord Hoffmann's formulation of the test by reference to the question: "when is the claimant worse off financially by reason of a breach of the duty of care than he would otherwise have been", is a simple and attractive one. It necessarily involves a factual inquiry in every case. It may, for example, be that the claimant is worse off financially at the time when, relying on the negligent advice of the defendant, he actually enters into the relevant transaction; see cases such as D W Moore & Co Ltd v Ferrier [1988]1 W.L.R. 267; alternatively, a claimant may not suffer actual financial loss at the time that the transaction entered is into in reliance upon the defendant's negligent advice, but only some time later; for example, when the amount which the lender/claimant has paid out under the transaction, plus its carrying costs, exceeds the value of the negligently under-valued security: see such cases as UBAF Ltd v European Banking Corporation [1984] QB 713 and First National Commercial Bank v Humberts [1995] 2 All E.R. 673."
"An action at risk of being struck out without the possibility of revival may well diminish the value of the claim being pursued in the action, since, apart from anything else, the settlement value of the claim is likely to be reduced. To my mind, however, the overwhelming difficulty with this submission is that it simply ignores the fact that the plaintiff is not suing for any earlier diminution in the value of his claim, but for the loss of his cause of action, through his solicitors negligence"
"At 492, Clarke L.J. (as he then was) described the relevant principles as follows:
"11 The appellants' case is that the respondent's cause of action accrued before
13 October 1994. They say that the alleged breaches of duty (which I shall
describe as negligence for short) and the respondent's relevant loss occurred
before that date. The negligence was essentially the failure to progress the
action against the accountants.
12 The following principles are not in dispute and may be summarised in
these propositions:
i) A cause of action in negligence does not arise until the claimant suffers
damage as a result of the defendant's negligent act or omission.
ii) The damage must be 'real' as distinct from minimal: Cartledge v Jopling
[1963] A.C. 758 per Lord Reid at 771 and Lord Evershed MR at 773–774.
iii) Actual damage is any detriment, liability or loss capable of assessment
in money terms and includes liability which may arise on a contingency:
Forster v Outred [1982] 1 W.L.R. 86 per Stephenson L.J. at 94, approved
by the House of Lords in Nykredit per Lord Nicholls (with whom the other
members of the appellate committee agreed) at 630F.
iv) The loss must be relevant in the sense that it falls within the measure
of damages applicable to the wrong in question: Nykredit at 1630F.
[…]"
"In a case in which the purpose of engaging the professional is to secure some right or benefit for the client in connection with a contemplated transaction, and because of a failure to exercise reasonable skill and care the client does not secure that right or benefit, the cases consistently hold that the client sustains damage when the transaction takes place."
Conclusions
It "might be said that in theory the value of the chose in action will deteriorate over a period of time prior to the date when an application to strike out would have succeeded, and therefore once the decline starts, damage is sustained. But in the words of Lord Evershed in Cartledge v Jopling at p.774 there must be 'real damage as distinct from purely minimal damage'. It seems to me that a claimant does not suffer real damage in the form of diminution of the value of his chose in action until there is a serious risk that the original action could be dismissed for want of prosecution"
Judge: Victoria McCloud, Master of the Senior Courts Queen's Bench Division
Handed down 30/6/22