Osborne v Follett Stock (a firm) & Anor

This is my judgment on a preliminary issue arising in a claim brought by the claimant against her former lawyers, in the emanations of both the original partnership and a subsequently formed LLP. The claim form was issued on 17 August 2016 as a claim for professional negligence against the lawyers for a failure to bring proceedings against another firm of solicitors, Coodes of Torpoint (“CT”) for their alleged professional negligence in relation to the claimant’s claim under a will made in 1997, whose testator died six days later.

The particulars of claim, dated 16 August 2016, make clear that two kinds of negligence were alleged against CT. The first related to an alleged failure to advise the claimant as to the procedure for attesting the will, as a result of which the claimant’s husband was one of the attesting witnesses, so that the gift under the will to the claimant was void, by virtue of section 15 of the Wills Act 1837. This is referred to as “the Attestation Negligence”. The second related to an alleged failure to advise the claimant as to the need for independent legal advice for the other party to an agreement to vary the terms of that will in favour of the claimant. This is referred to as “the Agreement Negligence”.

It is common ground that any claim against CT in respect of either of these two alleged kinds of negligence is now statute barred. The negligence alleged against these defendants is that they failed to advise the claimant appropriately in relation to CT’s alleged negligence as set out above, with the result that the claimant lost her opportunity to sue CT for that alleged negligence. The issue arising now, however, is whether any claim against the defendants in allegedly failing to advise the claimant appropriately is itself statute barred.

A defence was filed on behalf of the defendants on 1 November 2016, and a reply was filed on 29 November 2016. The defence raises, amongst other matters, the question of limitation. On 17 February 2017, Judge Denyer QC made agreed directions, including for the trial of a preliminary issue as to limitation. On 20 June 2017 Judge Cotter QC vacated a pre-trial review, and confirmed that the preliminary issue would be tried on the 12^th and 13 July 2017. That is the issue which I have heard, and on which I am now giving my judgment. At the hearing before me Mr Michael Berkley appeared on behalf of the claimant, and Mr Michael Bowmer appeared on behalf of the defendants. I am grateful to both of them for their cogent submissions. No evidence was heard for the purposes of this hearing. It was assumed that the claimant would be able to prove all the allegations made in her statements of case, though I emphasise that, at this stage, no findings have been made.

The Limitation Act 1980 relevantly provides:

“2.

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.

[ … ]

5.

Time limit for actions founded on simple contract.

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.

[ … ]

[14A. Special time limit for negligence actions where facts relevant to cause of action are not known at date of accrual.

(1)

This section applies to any action for damages for negligence, other than one to which section 11 of this Act applies, where the starting date for reckoning the period of limitation under subsection (4)(b) below falls after the date on which the cause of action accrued.

(2)

Section 2 of this Act shall not apply to an action to which this section applies.

(3)

An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) below.

(4)

That period is either—

(a)

six years from the date on which the cause of action accrued; or

(b)

three years from the starting date as defined by subsection (5) below, if that period expires later than the period mentioned in paragraph (a) above.

(5)

For the purposes of this section, the starting date for reckoning the period of limitation under subsection (4)(b) above is 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.

(6)

In subsection (5) above “the knowledge required for bringing an action for damages in respect of the relevant damage” means knowledge both—

(a)

of the material facts about the damage in respect of which damages are claimed; and

(b)

of the other facts relevant to the current action mentioned in subsection (8) below.

(7)

For the purposes of subsection (6)(a) above, the material facts about the damage are such facts about the damage as would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.

(8)

The other facts referred to in subsection (6)(b) above are—

(a)

that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence; and

(b)

the identity of the defendant; and

(c)

if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant.

(9)

Knowledge that any acts or omissions did or did not, as a matter of law, involve negligence is irrelevant for the purposes of subsection (5) above.

(10)

For the purposes of this section a person’s knowledge includes knowledge which he might reasonably have been expected to acquire—

(a)

from facts observable or ascertainable by him; or

(b)

from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek;

but a person shall not be taken by virtue of this subsection to have knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.]”

Section 14A was added by the Latent Damage Act 1986. The period of limitation under ss 2 and 5 is usually referred to as the primary limitation period. That under s 14A is generally referred to as the secondary limitation period.

The case stems from the will of one Filip Roth, a former Yugoslav prisoner of war. He formed a long-term relationship with the claimant’s aunt, Miss Wills. When she died in 1995, by her will she left her property, including a farm in Cornwall, to him. His previous will having become out of date, he made a fresh will leaving the property to his natural daughter Liza Benakovic (“Lisa”), if she could be located, otherwise to the claimant. Shortly thereafter, Liza was located by the Red Cross, so he made another will, leaving the bulk of his estate to Liza, and only £10,000 to claimant. Subsequently, however, apparently being disappointed in some way in Liza, he decided to change his will, and the claimant and her husband, and their friend and professional associate, a Mr Stuart Condliffe, arranged for a consultant with CT to draft a simple new will for Mr Roth. On 11 February 1997, the testator executed that new will, by which he gave a pecuniary legacy of £50,000 to Liza but left everything else to the claimant. The claimant and her husband were also appointed executors of the will.

Unfortunately, because of the absence of one of the intended witnesses, this will was witnessed by the claimant’s husband. Mr Roth died six days later on 17 February 1997. Four days later, on 21 February 1997, the claimant consulted different solicitors, and was told for the first time of the problem under section 15 of the Wills Act 1837. The effect was not that the whole will was invalid, but that the gift in favour of the claimant certainly was. As a result, there was a partial intestacy of the gift to the claimant, which therefore devolved upon Liza, as the testator’s daughter.

According to the claimant, at the funeral of Mr Roth she reached an agreement orally with Liza, which with the assistance of CT was reduced into writing by a document dated 1 March 1997. By this agreement the will was to be varied. The legacy in favour of Liza was to be increased to £75,000, but everything else was to go to the claimant. Unfortunately, Liza was not advised to, nor apparently did she, obtain any independent legal advice in relation to this agreement. Nor, apparently, was the claimant advised of the need for such advice if the agreement was to be free from challenge.

Following this agreement, the claimant and her husband, believing that the will as varied was valid and effective, obtained probate on 23 July 1997. The instructions of CT ended in February 1998. In 2004 to 2005 there was correspondence between various parties, including with Mr Stuart Condliffe. On 9 February 2005, Liza through her then solicitors wrote a letter of claim to the claimant, alleging that the agreement of 1997 was not binding on her and that she was entitled to the whole of the estate of her father.

In June 2005 proceedings were begun by Liza in the Bristol District Registry of the High Court against the claimant and her husband to set aside the agreement varying the will. There were also proceedings brought against them in the County Court at Truro by Mr Stuart Condliffe claiming professional fees of some £70,000. In Bristol, on 19 June 2006 Liza was awarded summary judgment on her claim against the claimant and her husband. An appeal against that decision was dismissed by His Honour Judge Weekes QC on 14 July 2006. The judge pointed out that the claimant was an executor of the will, and was in effect buying Liza’s interest in the residue for only £25,000, without any independent advice being given to her. This obviously could not stand.

Following those court proceedings, a number of other law firms were retained to advise on behalf of the claimant, until in April 2007, the first defendant was instructed. An application was made to set aside the summary judgment in June 2008, on the grounds of new evidence and an estoppel claim. However, the application was unsuccessful. Subsequently, the second defendant was incorporated in order to take over the practice of the first defendant, and the second defendant took over the representation of the claimant and her husband in April 2010. The dispute between Liza and the one hand and the claimant and her husband on the other was finally disposed of by a consent order entered into on 26 October 2010. A claim against the defendants was first intimated by the claimant on 17 October 2011, but, although a standstill agreement was entered into on 9 February 2015, that agreement was made only with the second defendant, and not with the first. As I have already said, the claim form in this matter was issued on 17 August 2016 against both defendants.

As mentioned earlier, this is the trial of a preliminary issue, concerning limitation. This is not the hearing of an application for summary judgment or to strike out. The question of limitation by way of defence having been raised, the burden of proof lies squarely on the claimant to show that the claim was brought in time. It is not enough to show that the claim is arguable. In the claimant’s skeleton argument, four possible routes to the liability of the defendants were identified. Of these, counsel for the claimant accepted that two were out of time. A third, relating to concealment of breach of duty, was not pursued at this trial. Only one route was therefore argued before me.

In paragraph 25 of the particulars of claim, that route is put this way:

“It is accepted and acknowledged by the claimant that the limitation period in respect of the Attestation Negligence expired in or around February 2003, prior to the defendant’s instruction. However, in relation to the Agreement Negligence, the negligence occurred in March 1997, but no damage occurred until Liza changed her mind and decided not to abide by the agreement in June 2005. Accordingly, by virtue of section 14A of the Limitation Act 1980, the limitation period for the Agreement Negligence did not expire until after the defendant’s instruction by the claimant.”

I was referred to a considerable number of decisions bearing on this question. In addition to those from which I cite below, they include Baker v Ollard (1982) 126 SJ 593, DW Moore v Ferrier [1988] 1 WLR 267, Bell v Peter Brown [1992] QB 495, Knapp v Ecclesiastical Insurance Group plc [1998] PNLR 172, Nykredit Mortgage Bank plc v Edward Erdman [1997] 1 WLR 1627, Shore v Sedgwick Financial Services [2008] EWCA Civ 863, Pegasus Management v Ernst & Young [2010] PNLR 23. Sitting here at first instance, I hope I will be forgiven for not referring to all of them.

In Forster v Outred & Co [1982] 1 WLR 86, a decision before the Latent Damage Act 1996 added s 14A to the 1980 Act, a mother charged her house to secure a contingent liability of her son for the purposes of his business. The liability matured, and she had to discharge that liability in order to ensure that her own property was not subject to sale in order to pay the debt. She issued a first claim against her former solicitors in 1977, but that was struck out in 1980 for want of prosecution. She issued a second claim in March 1980. The question was whether, on the assumption of negligence by the solicitors, she suffered loss when she executed the charge, or only when demand was first made by the lender. She would have been statute barred on the first footing, but in time on the second.

Stephenson LJ said (at p 98):

“Although there is no more direct authority than those cases among those which have been cited to us, I would accept Mr. Stuart-Smith's statement of the law and would conclude that, on the facts of this case, the plaintiff has suffered actual damage through the negligence of her solicitors by entering into the mortgage deed, the effect of which has been to encumber her interest in her freehold estate with this legal charge and subject her to a liability which may, according to matters completely outside her control, mature into financial loss — as indeed it did. It seems to me that the plaintiff did suffer actual damage in those ways: and subject to that liability and with that encumbrance on the mortgage property was then entitled to claim damages, not, I would think, an indemnity and probably not a declaration, for the alleged negligence of the solicitor which she alleges caused her that damage. In those circumstances her cause of action was complete on February 8, 1973, and the writ which she issued on March 25, 1980, was issued too late to come within the six years' period of limitation.”

Dunn LJ said (at p 100):

“In this case, as soon as she executed the mortgage the plaintiff not only became liable under its express terms but also — and more importantly — the value of the equity of redemption of her property was reduced.

Before she executed the mortgage deed she owned the property free from encumbrances; thereafter she became the owner of a property subject to a mortgage. That, in my view, was a quantifiable loss and as from that date her cause of action against her solicitor was complete, because at that date she had suffered damage. The actual quantum of damages would, of course, depend on events between that date and the date when the damages had finally to be assessed, but the cause of action was complete when she executed the mortgage, without proof of special damage.”

Sir David Cairns agreed with both judgments.

In Law Society v Sephton & Co [2006] 2 AC 543, HL, a solicitor misappropriated substantial sums from his client account between 1990 and 1996. The Law Society intervened in his practice and he was subsequently struck off. In July 1996 a former client made a claim for compensation from the Solicitors Compensation Fund. In 1992 the Law Society issued proceedings in negligence against the former solicitor’s accountants, who had prepared and certified the solicitor’s annual reports. The question was whether the Law Society’s cause of action in negligence in relation to the reports prepared and certified had accrued as soon as the solicitor had misappropriated monies after the receipt by the Law Society of the relevant report, or whether the cause of action only accrued when the misappropriation was not otherwise made good and a claim in proper form was made to the Law Society. In the latter case, the claim would not be statute barred. In the former case, it would.

Lord Hoffmann said:

“30.

In my opinion, therefore, the question must be decided on principle. A contingent liability is not as such damage until the contingency occurs. The existence of a contingent liability may depress the value of other property, as in Forster v Outred & Co [1982] 1 WLR 86, or it may mean that a party to a bilateral transaction has received less than he should have done, or is worse off than if he had not entered into the transaction (according to which is the appropriate measure of damages in the circumstances). But, standing alone as in this case, the contingency is not damage.

31.

The majority of the Court of Appeal appear to have decided the case on the basis that the Law Society did not enter into any transaction giving rise to the contingent liability. It did nothing and the contingent liability was created by the misappropriations and the previous existence of the Compensation Fund and the rules which governed its administration. No doubt in most cases in which a party incurs a contingent liability as a result of entering into a transaction, that liability will result in damage for the reasons already discussed in relation to bilateral transactions. But I would prefer to put my decision on the simple basis that the possibility of an obligation to pay money in the future is not in itself damage.”

Lord Walker said this:

“48.

In all these cases the claimant has as a result of professional negligence suffered a diminution (sometimes immediately quantifiable, often not yet quantifiable) in the value of an existing asset of his, or has been disappointed (as against what he was entitled to expect) in an asset which he acquires, whether it is a house, a business arrangement, an insurance policy, or a claim for damages. Your Lordships have not, I think, been shown any case in which the imposition on a claimant of a purely personal and wholly contingent liability, unsecured by a charge on any of the claimant's assets, has been treated as actual loss. That would have been the position if the claimant in Forster [1982] 1 WLR 86 had given a personal covenant guaranteeing her son's debts (which she seems not to have done—she paid them simply to prevent enforcement of the security on her farm) and if she had not given any security over any of her own assets.”

Lord Mance, after a review of the case law, said this:

“70.

In all these cases except Forster v. Outred [1982] 1 WLR 86 the defendant failed to preserve or procure for the claimant an asset (including a particular chose in action) which could and should have been preserved or protected by proper performance of the defendant's duty in relation to the transaction affecting the claimant's legal position. In Forster v. Outred the claimant's case was that, but for the defendant's negligence, she would never have entered into the transaction at all. But in that case, by doing so, she clearly depreciated the value of her house in a measurable way. However, while a defendant's failure to preserve or protect a particular asset by proper performance of his duty in relation to a particular transaction may readily be seen to have caused measurable loss, negligence causing a claimant to enter into a transaction which he would not otherwise have entered may not immediately, or indeed ever, cause measurable loss to any particular asset.”

Lord Scott and Lord Rodger agreed with those three speeches.

In Axa Insurance Ltd v Akther & Darby [2010] 1 WLR 1662, CA, an insurance company set up an “after the event” legal expenses insurance scheme for personal injury claims. A panel of solicitors vetted the claims put forward by members of the public, according to criteria set by the insurer. The assignee of the insurer brought proceedings against the defendant solicitors alleging negligence, and the defendants raised a limitation defence. There was a preliminary issue as to when damage had occurred for the purposes of this claim. The majority of the Court of Appeal held that damage would not be constituted by the incurring of a purely contingent liability, but that there had to be a measurable loss additional to the incurring of the contingent liability. However, in this case the insurer carried liabilities as soon as the policies had been underwritten so as to incur liabilities in excess of those which would have been incurred if the breaches of duty had not occurred.

Arden LJ said:

“30.

It follows from Sephton that there can be cases, like that of Mrs Forster, where a contingent liability is incurred but it does not crystallise into an actual liability until a future date but where damage occurs for the purposes of the commencement of the limitation period at the time when the transaction is entered into so that time starts running from that time. I will call this "the damaged asset rule". As a matter of outcome, this rule benefits the wrongdoer, but that is a policy decision made in Sephton and is the result whenever a cause of action becomes time-barred. The fact that the wrongdoer benefits and the claimant has no knowledge of his claim against him may partly explain why Sephton creates a rule for purely contingent liabilities. If the consequence of Sephton is that the result in Forster is to be translated into the world of insurance, it could mean that the mere underwriting of a policy of insurance would constitute damage, and start the running of the limitation period. The insurer would then be placed in the same position as Mrs Forster. The beneficiary would again be the alleged wrongdoer. In the case of longtail business (such as employers' liability), the insurer may not know that he has suffered a loss as a result of a wrong until the limitation period for bringing an action in respect of that wrong has expired. The exception to that would be where he is able to bring himself within the provisions of s 14A of the Limitation Act 1980 dealing with latent damage.

31.

It is clear from the speeches in Sephton that there are other situations where loss is suffered immediately. The speeches refer to cases such as D. W. Moore v Ferrier [1988] 1 WLR 267. In that case, the plaintiff did not discover the deficiencies in a restrictive covenant in an employee's contract of employment until the covenant was challenged several years later. It was held that damage occurred when the agreement was executed since at that point in time the plaintiff received a worthless covenant rather than a valuable chose in action. Accordingly time began to run from this point. Likewise in Bell v Peter Browne & Co [1990] 2 QB 495, where the defendant solicitors failed to register the interest of a husband in a house following the terms of a separation agreement, time began to run from a failure to take the necessary steps and not from the time when the husband discovered that the house had been sold and the proceeds dissipated. In these cases, there was a bilateral transaction under which the claimant should have received certain benefits but owing to the negligence of his professional adviser did not do so. I will refer to this situation as "the package of rights rule". There is no reason in principle why this line of authority should not apply where what the claimant by virtue of the bilateral transaction places himself under a contingent liability. Lord Hoffmann at [22] of his speech in Sephton expressly contemplates that situation (see also the first sentence of the passage from the judgment of Saville LJ in Humberts which Lord Walker cited at [44] of his speech). The judge considered that what I have called the package of rights rule applied to this case.

32.

In my judgment, the damaged asset rule and the package of rights rule are best regarded not as a series of independent qualifications on the basic rule in Sephton that the assumption of a "pure contingent liability" does not cause the limitation period to start to run, but as different cases in which the courts have tried to express a central idea. That idea has to be found by seeking the ultimate ratio in Sephton, that is, a ratio which expresses the reason for the decision on which, despite the differences in expression, all the members of the House in that case were agreed. As I see it, the concept on which all the members of the House agreed was that there had to be measurable loss before time began to be run, that is to say, loss which is additional to the incurring of a purely contingent liability. In my judgment, for this purpose, rights of contribution or subrogation must be ignored because those rights arise by operation of law, unless excluded by agreement or statute. If they were taken into account, they would undermine the basic rule which is clearly established in Sephton that a pure contingent liability is not damage.

33.

In my judgment, the central idea in Sephton is that there has to be loss additional to that resulting from the incurring of a purely contingent liability. This reflects the formulation in Wardley with which Lord Hoffmann expressly agreed. That passage in particular held:

"Rather, it seems to us, the decisions in cases which involve contingent loss were decisions which turned on the plaintiff sustaining measurable loss at an earlier time, quite apart from the contingent loss which threatened at a later date … If … the English decisions properly understood support the proposition that where, as a result of the defendant's negligent misrepresentation, the plaintiff enters into a contract which exposes him or her to a contingent loss or liability, the plaintiff first suffers loss or damage on entry into the contract, we do not agree with them."

34.

The central idea which I have identified is also consistent with the "simple basis" on which Lord Hoffmann puts his decision at the end of paragraph [31] of his speech: "...the possibility of an obligation to pay money in the future is not in itself damage" (emphasis added). Lord Walker expressly agreed with the passage cited in the last paragraph from Wardley. In addition, Lord Walker, cited with approval a passage from the judgment of Saville LJ in Humberts (see the passage cited in paragraph [19] above). This concentrated on the requirement for incurring of loss rather than the acquisition of less valuable rights under a bilateral transaction, which is the particular situation with which Lord Walker deals in paragraph [45] of his judgment. I do not read Lord Walker as rejecting any part of what Saville LJ had held. On this basis the acquisition of less valuable rights is to be regarded as a species of loss and not as describing the whole genus of loss. Lord Mance spoke of the necessity for a change in legal position and a diminution in value of a particular asset (see paragraphs [77] and [78] of his judgment). This also appears to be an acceptance of a requirement for additional loss, though arguably limited to damage to a particular asset. However, as Lord Mance agreed with Lord Hoffmann and Lord Walker I do not consider that his speech should be read as ruling out the incurring of additional loss in other ways.

35.

In my judgment, the true ratio of Sephton is that there has to be measurable loss as defined in Wardley for time to begin to run for limitation purposes. On this basis what has to be shown is additional loss, and that loss does not have to be of a kind previously considered in the case law. Types of damage considered in the case law thus far include damage to existing property (my damaged asset rule) or a failure to obtain the hoped-for benefits under a bilateral transaction (my package of rights rule).”

The other judge in the majority, Longmore LJ, said:

“73.

… The fact that the flawed transaction has been entered into will usually be damage from the claimant's point of view. The fact that the recipient of the advice might have hoped for a better transaction or might have hoped to avoid any transaction makes no difference to the fact that he has entered into a flawed transaction which he would not have done if he had been competently advised. If such a flawed transaction has come into existence that will, in my view, usually be the damage which the recipient of the advice has suffered and that is more than the existence of a mere contingent liability.”

Lloyd LJ dissented.

In Russell v Cornwell [2014] EWHC 1509 (QB), in January 2000 the claimant then in the process of divorce proceedings instructed the defendant as her solicitor. In May 2000 the matrimonial home was transferred to her by her husband. In January 2001, the husband presented a bankruptcy petition, on which he was adjudicated bankrupt. In May 2007 the husband’s trustee in bankruptcy wrote a letter of claim to the claimant asserting a claim under section 339 of the Insolvency Act 1986, arguing that the transfer of the house to the claimant had been a transaction at an undervalue which was liable to be set aside. The claimant took advice, and eventually paid the trustee in bankruptcy some £68,000. In February 2013 the claimant launched proceedings against the defendant, her former solicitor.

His Honour Judge David Mitchell, sitting as a judge of the High Court, said:

“18.

Mr Harris (for the defendant) submits this is not a contingency case like the case of Law Society v Sephton. He submits that from the outset the claimant, Mrs Russell, had a flawed interest in the property because it had been made clear that the husband’s bankruptcy could affect her position and indeed it did as things turned out.…

28.

In my judgment the submissions of Mr Harris that the transaction was vulnerable from the time that it was entered into succeed, and it seems to me that this case sadly is another example of the authorities to which I have referred and upon which he has relied. In my judgment the limitation period in some ways could have begun to run at the time of the transaction, it could begin to run at the time of the bankruptcy, but in my judgment it certainly began to run at a time when the defendant was instructed, and I need not, I do not think, say any more than that, so that in effect by the time the retainer was discharged on 14 February 2001 the limitation clock had begun running.”

The most recent expression of judicial opinion at the third level on this point is Maharaj v Johnson [2015] UKPC 28, [2015] PNLR 27. In that case, the Judicial Committee of the Privy Council heard an appeal from Trinidad and Tobago. In that case a man called Patrick Lambert had died in 1976. In 1984 letters of administration had been granted in Trinidad to his widow, who lived in Venezuela. She had granted a power of attorney to a Mr Inniss. In 1985, the claimants contracted to buy certain land in the estate from Mrs Lambert. In early 1986 Mr Inniss executed a transfer of the land to the claimants. In 2008 the claimants were considering using the land as security for a loan, though in fact in February that year they contracted to sell the land to a property developer for many times what they had paid for it. Shortly after the contract, the bank from whom they had proposed to borrow money expressed concern about Mrs Lambert’s title. The result was that the property developer rescinded the contract. The claimants brought a claim against their former solicitors acting at the time of the purchase in 1985-86. It should be said that the law of Trinidad and Tobago has provisions concerning latent damage, somewhat similar to England and Wales, but they apply only to actions for personal injuries.

Lord Wilson, giving the majority opinion of the Board, said this:

“15.

… Quite apart from the desirability of reducing disparity between parallel causes of action, the law encourages prompt claims and should not to readily derail an early complaint of a breach of a duty of care on the basis that the breach has not, or not yet, caused what the law recognises as actual damage. On the other hand, take a case, such as the present, in which the breach of duty was unknown to the claimants for 22 years. In its wider and overarching function the law fails if in such circumstances it provides that the action is time-barred because the breach caused them actual damage 22 years previously. So a balance needs to be struck. Mr Casey on behalf of the claimants submits to the board that, in certain of its decisions during the last 33 years, the Court of Appeal of England and Wales has forfeited balance by discerning actual damage in circumstances where the damage was not actual at all.

[ … ]

19.

It was Rimer LJ, in his judgment in Pegasus Management Holdings SCA v Ernst and Young [2010] EWCA Civ 181, [2010] PNLR 438, who, at para 28, drew a distinction in cases of professional negligence between “no transaction” cases and “wrong transaction” cases. Perhaps the latter are even better described by Longmore LJ in Axa Insurance Ltd v Akther and Darby [2009] EWCA Civ 1166, [2010] 1 WLR 1662, at para 71, as “flawed transaction” cases. In his dissenting judgment in the same case Lloyd LJ suggested, at para 134, that a focus on the distinction might be an unhelpful distraction. Although the Board considers that the distinction can represent a helpful sign-post to the relevant principles, it is essential to bear in mind that the central concept behind the “no transaction” and the “flawed transaction” cases is different. For in the latter the claimant does enter into a “flawed transaction” in circumstances in which, in the absence of the defendant’s breach of duty, he would have entered into an analogous, but flawless, transaction. In the former, however, the claimant also enters into a transaction but in circumstances in which, in the absence of the defendant’s breach of duty, he would have entered into “no transaction” at all. The difference in concept dictates a difference in the inquiry as to whether, and if so when, the claimant suffered actual or measurable damage. In the “flawed transaction” case the inquiry is whether the value to the claimant of the flawed transaction was measurably less than what would have been the value to him of the flawless transaction. In the “no transaction” case the inquiry is whether, and if so at what point, the transaction into which the claimant entered caused his financial position to be measurably worse than if he had not entered into it: see the Nykredit case, cited above, at p 1631 (Lord Nicholls). The Nykredit case was a classic example of a “no transaction” case in that the claimants, who had lent money on the security of a property which the defendant valuers had negligently overvalued for them, would have declined to make the loan if the valuation had not been deficient.

[ … ]

22.

The present case is an obvious case of a flawed transaction: it was flawed because it did not convey to the claimants a legal interest in the land and, in the absence of the defendants’ breach of duty, they would have entered into an analogous transaction in which it was conveyed to them. The inquiry then becomes: was the value of a full equitable interest in the land on 6 February 1986 measurably less than the value then of a full legal and equitable interest in it? If so, the claimants then suffered actual damage and their action in tort is time-barred. The claimant’s second ground of appeal, to which the Board now turns, involves criticism of some of the guidance given by the Court of Appeal of England and Wales in relation to this type of inquiry.

[ … ]

26.

In the opinion of the Board the observations of Templeman LJ in the Baker case and of Rimer LJ in the Pegasus case go too far. The fact that the transaction was flawed does not by itself mean that the claimant suffered actual damage on entry into it. Although in the words of Lord Hoffmann in The Law Society v Sephton & Co [2006] UKHL 22, [2006] 2 AC 543, at para 21, “it may be relatively easy … to infer that the plaintiff has suffered some immediate damage, simply because he did not get what he should have got”, there is no substitute for attending to the particular facts and deciding whether such an inference is properly to be drawn from them.

27.

In respectful agreement with the brief judgment of the Court of Appeal in the present case, the Board concludes that the claimants suffered actual damage upon their execution of the Deed on 6 February 1986. An inference to this effect is properly to be drawn from the following.

(a)

The claimants’ failure to obtain a legal interest in the land on that date subjected them to significant risks which were present from then onwards.

(b)

Just as in 2008 the claimants discovered that their lack of a legal interest obstructed their attempts both to borrow on the security of the land and to sell it, they would be likely to have met similar obstruction in the event that at any earlier time after 6 February 1986 they had attempted either to borrow on the security of it or to sell it. Their equitable interest was therefore significantly less valuable to them than a legal interest would have been.

(c)

It was not even in the power of the claimants or of the defendants to remedy the flaw by themselves. For it was necessary to procure the participation of Mrs Lambert. In 2008 it so happened that she was quickly located and that she cooperated in a swift execution of the Deed of Rectification. Even in those circumstances costs, for which in the first instance the claimants were liable, must have been incurred in procuring its execution and in registering it. But from 6 February 1986 onwards there were risks that Mrs Lambert would not be able to be located or would be found to have died: were either risk to have eventuated, there would have been significant extra complications – and extra costs. There was also a risk that, if located, Mrs Lambert would not willingly execute the Deed: were that risk to have eventuated, it would have been necessary to take costly legal steps in order to oblige her to do so.”

In the claimant’s skeleton argument, and before me, it was argued that, although some loss, however trivial, by the claimant will set time running for the purposes of the accrual of a cause of action, in the present case the claimant’s loss was contingent on Liza changing her mind about the agreement. Further, it is argued that, in Law Society v Sephton and Co [2006] AC 543 the House of Lords held that, where the loss was truly a contingency, the damage was only suffered when the contingency occurred. Later authority distinguished between “flawed transactions” (where the claimant has a less valuable asset than he would have had but for the negligence, and so suffers loss immediately) and “non-transactions” (where, had it not been for the negligence, the claimant would not have entered into the transaction at all, and so loss accrues only when the contingent loss occurs).

The claimant argued that the present was a “non-transaction” case, because it was not possible for a valid and binding agreement to be reached between Liza and the claimant in the circumstances, at least without a considerably greater payment, and even then without any certainty. It could not be said that, by entering the agreement, the claimant suffered any damage apart from the contingent liability. She was not worse off than before the transaction, but (because she obtained ownership, albeit precarious) significantly better off. Even though the claimant spent money in reliance on the validity of the agreement, she was still significantly better off, because the amount that she spent was much less than the value of the property she had acquired, and therefore she suffered no loss until the claim was made in 2005. The claimant was after all obtaining bounty from Liza, not entering into a commercial transaction. And she put herself in her solicitors’ hands. Yet (unlike the cases of commercial transactions) it was not in the solicitors’ gift to achieve what the claimant wanted. Liza was not under their control. This case was therefore like Sephton.

For the defendants, Mr Bowmer argued that this was a flawed transaction case where actual damage was suffered when the claimant entered the agreement of 1 March 1997. He says that that analysis is consistent with all the cases both before and after Sephton. But in any event, the claimant suffered actual loss immediately afterwards by spending monies in reliance on the validity of the agreement, as she has consistently alleged and pleaded (for example, in attempting to run the estoppel argument to overcome the summary judgment). The balance sheet approach which the claimant put forward to deal with whether she had benefited or not was unrealistic. Counsel referred to the Axa case at [60]. He submitted that the expenditure in reliance on the validity of the agreement constituted actual damage.

Mr Bowmer also submitted that this was properly to be characterised as a bilateral transaction, and not merely a case of bounty. He referred me to the characterisation of the case by HHJ Weekes QC in dismissing the appeal against the summary judgment awarded to Liza against the claimant. In paragraph 12 of his extempore judgment the judge said this:

“The agreement in that document was in effect a purchase by one of the executors of the beneficial interest in the will under intestacy of Mrs Benakovic for the sum of £25,000. Effectively Mrs Benakovic was selling whatever interest she had in residue to Mrs Osborne for that sum.”

In my judgment, this is significant, because it was on that basis that the judge applied the fair dealing rule and concluded that the agreement could not stand. I do not think I would be justified, for the purposes of considering when the claimant first suffered loss, in re-characterising this claim as based on a unilateral act of bounty on the part of Liza.

Mr Bowmer also submitted that it was clear that the claimant lost the chance that in March 1997 an unchallengeable deal could have been done. He accepted that the possibility might have been small, but it was there. He referred me to the approach taken by Bingham LJ in the Ferrier case at 279-80:

“If the quantification of the plaintiff’s damage had fallen to be considered shortly after the execution of either agreement, problems of assessment would undoubtedly have arisen. It might have appeared that Mr Fenton was unlikely to leave, taking much of the first plaintiff’s business with him, to establish a competing business. If so, the plaintiff’s damage would have been assessed at a modest figure. But the risk of his doing so could not have been eliminated altogether, and so long as there was any risk that one of the first plaintiff’s two directors might leave, taking much of the first plaintiff’s business with him, to establish a competing business, there must necessarily have been a depressive effect on the value of the first plaintiff’s business and on that of the second and third plaintiff’s derivative interests. In making his assessment the judge would have had to attach a money value to a possible future contingency; but judges do this every day in awarding claimant’s damages for the risk of epilepsy, the risk of osteoarthritis, the risk of possible future operations, the risk of losing a job and so on. The valuation exercise is, of course, different, but the difference is one of subject matter, not of kind.”

Looking at the detail of this case, I have no hesitation in saying that the damage for the purposes of the accrual of the cause of action arose at the time of entering into the agreement of 1 March 1997. This is not a case of a true contingency, as in Sephton. Like Russell v Cornwell,this was a flawed transaction, rather than a non-transaction. Indeed, this case is perhaps even stronger than that one. In the first place, this was indeed a bilateral transaction, in which the claimant, one of the executors, was buying Liza’s interest in the estate for a modest sum. That is a paradigm of a precarious transaction, which needs careful advice in order to be free from challenge. In my judgment it is nothing to the point that it was not within the solicitors’ control whether such an unchallengeable agreement was reached or not. The claimant lost the chance that it could have been.

Secondly, there is a measurable loss from the outset. The value of the agreement to the claimant can be tested by asking what a third party would have paid for an assignment of the benefit of it after it was entered into and before receipt of the letter of claim in 2005. In my judgment it is clear that anyone with full knowledge of the circumstances would have paid much less for it than the value of the assets in the estate, to cover the risk (which matured) of a claim by Liza.

If, however, I am wrong on this, then in my judgment the claimant plainly suffered loss when she expended money in reliance on the supposed validity of the agreement, as pleaded for the purposes of the estoppel claim. I do not accept the “balance sheet” approach taken by Mr Berkley. As in the Axa case, it seems wholly unrealistic to me.

English law has now been relieved of the pressure to find a later date for damage in cases of unknowable loss, because of the enactment of the Latent Damage Act 1986. Parliament has made a policy decision, balancing the interests of claimants and defendants. This includes the long stop bar of 15 years. In the present case, of course, section 14A does not assist the claimant, because she knew of the claim by Liza in February 2005. She has had her opportunity, and cannot complain if the primary limitation period under section 2 bars her claim against these defendants. In the result, therefore, I resolve the preliminary issue against the claimant, and accordingly dismiss the claim.