Trainer v Cramer Pelmont (a firm)

Mr Justice Walker:

A. Introduction:

A1 The appeal, Limitation Act 1980 & proceedings below

A1.1 The appeal and the ordinary time limit

1.This appeal from an order of Deputy Master Bard (“the master”) dated 17 September 2018 concerns section 14A of the Limitation Act 1980 (“the 1980 Act”). Normally, under section 2 of that Act, a claimant saying that a defendant is responsible in the tort of negligence for damage to the claimant may not bring an action more than six years after the date that the damage occurred. The reason is that section 2 sets an ordinary time limit of six years after a cause of action in tort accrues, and a cause of action in the tort of negligence accrues when real damage, as distinct from minimal damage, is suffered: see paragraph 3 of the speech of Lord Nicholls in Haward v Fawcetts[2006] UKHL 9, [2006] 1 WLR 682 (“Haward”).

A1.2 Special three-year time limit: section 14A alternative starting point

claiming for the tort of negligence to benefit from a special time limit of three years from what I shall call “the section 14A alternative starting point”. The section 14A alternative starting point is the earliest date when a person whom I shall call “a vested person” first had both what I shall call “section 14A cumulative knowledge” and a “section 14A right”.

was a vested person, ceased to be such a person when assets were transferred to a trustee in bankruptcy, and became such a person again pursuant to an assignment of rights from the trustee. The main questions, however, concern section 14A cumulative knowledge.

A1.3 Section 14A cumulative knowledge

start to run merely on the basis of suspicion. As stated by Lord Nicholls at paragraph 9 of his speech in Haward, “knowledge” for this purpose means that:

… the claimant must know enough for it to be reasonable to begin to investigate further.

A1.4 Material facts knowledge, causation knowledge, identity knowledge

6. The three things needed in the present case for section 14A cumulative knowledge

are:

damages are claimed (“material facts knowledge”);

A1.5 Proceedings below

Charnley, acted as Mrs Trainer’s solicitors in certain property matters and in the matrimonial proceedings. It also acted for Mr Trainer on occasion. However it was not named as a defendant when the claim form was issued.

Claim for damages in tort and/ or equitable compensation and/ oraccount for breach of trust and/ or breach of contract and/ or breach of fiduciary duty and/ or pursuant to the Misrepresentation Act 1967 and or for other relief arising from the circumstances leading to the claimant entering into a Deed of Variation to a sale contract and otherdocumentation, on 10 5 October 2011 resulting in the claimant receiving significantly less consideration on the sale of the properties known as and situate at Wildwood Lodge, 9 North End, London, NW3 7HH and 4 North End, London NW3 7HL than she was originally entitled to, and undermining her entitlement to receive an equal share in such pursuant to an order of DJ Robinson of the Family Division dated 28 September 2010, given that the first defendant ultimately received a greater share following a separate secret agreement for deferred consideration.

Pelmont contended that relevant claims were, at the time of the amendment on 31 January 2018, time barred, not only under the normal 6 year time limit but also under s 14A.

Cramer Pelmont was time barred. If so, allowing the amendment would deprive

Cramer Pelmont of a potential limitation defence. It is well established that the right

course in those circumstances would be to disallow the amendment. This would leave Mrs Trainer to fall back on fresh proceedings in which the court could determine whether or not she was indeed entitled to the benefit of section 14A.

refer to them as “the precautionary proceedings”.

that it was not reasonably arguable that Mrs Trainer’s claim against Cramer Pelmont was time barred: on the contrary, she had effectively shown she was entitled to judgment on any issue that might have arisen in fresh proceedings concerning her ability to avail herself of section 14A. He accordingly refused Cramer Pelmont’s application to disallow the amendment. In the present appeal against that conclusion Mr Tom Asquith, instructed by Kennedys Law LLP, appears for Cramer Pelmont, and Mr Simon Wilton, instructed by the Specter Partnership, appears for Mrs Trainer. On both sides the representation is identical to the representation below. I am grateful to the legal teams on both sides for the care with which written material has been assembled and oral arguments have been presented.

A2 Key events and claims

A2.1 Wildwood Lodge, 4 North End and the matrimonial consent order

in the matrimonial proceedings. It provided, among other things, for each of the four properties to be “sold forthwith on the open market”, and for the proceeds of sale to be used for certain specified payments, after which the balance was to be paid out to Mr and Mrs Trainer in equal shares.

them a net benefit of £1.45 million. However the Wildwood Lodge contract included special condition 9:

9. Completion shall take place 28 days after the sellers have obtained planning permission in respect of the proposed development at 4 North End, London NW3 7HL which for the avoidance of doubt is for the demolition of the house at 4 North End and for permission to erect 2 new houses at 4 North End being of not less than a total of circa 10,000 sq ft.

If the said consent is not obtained within 18 months of the date of this agreement the buyer will have the right of… rescinding this agreement…

10,113 sq ft gross and 9,612 sq ft net. Later in February 2011, Allanton completed the purchase of 4 North End.

A2.2 Renegotiation: Terms of Contract & Mrs Trainer’s asserted lack of knowledge

19. In Mrs Trainer’s particulars of claim assertions are made:

… indicating that the sale price could be “£5,300,000 (or as agreed to accommodate new agreement)”, that Mr Trainer would receive £1.5 million, that Mr Trainer would take £295,000 on completion of the sale, and that Mr Trainer was prepared to accept deferred consideration referable to the proceeds of an onward sale by Allanton on completion of the development in that he would receive 15% of the gross sale proceeds above £3 million, less £37,500, plus £75,000 every 6 months if the development was not complete within 2 years.

expense;

Baldwin of Downs:

“If you’re ok with it we can complete on a sale price of some amount in excess of £4.5m which will cover the mortgages, my

£1.5m and Monique’s £600k. Avi [Mr Dodi] is confident Monique [Mrs Trainer] will not argue on the figures. Remember our agreement is obviously secret from her and Cramer”.

… discussed all this with Mr Trainer and he gave an account of what he said he had agreed with Allanton (albeit without disclosing the payments of £50,000 and £25,000), he suggested that the contractual position was difficult and that there would be difficulties in taking legal action against Allanton, which was a shell company, for not completing on the originally agreed terms, and that he was getting much the same as [Mrs Trainer] by way of a small payment on completion and that there was only a possibility that he would get more, but only because he was prepared not to insist on payment of his entire share upon completion and instead would receive payment of the remainder, but only if and when the development was completed successfully.

… understood she had no alternative but to agree to the terms proposed on the footing they were the best available given the legal rights of the parties, and, absent a proper understanding of what was proposed or any advice from a solicitor, she was prepared to proceed on the basis proposed.

… was not assisted in any of these respects by the fact that she was in a vulnerable position, having been recently divorced and separated from her former husband and family, having been obliged to leave the former matrimonial home, in respect of which Mr Trainer had the benefit of an occupation order and a residence order for the children, and also drinking heavily.

A2.3 Mrs Trainer’s 15 Sep 2011 “taking advice from Cramer Pelmont” email

20.On 15 September 2011 Mrs Trainer sent an email via her daughter to Ms Baldwin of Downs saying “I authorise you to act for me on the completion of Wildwood Lodge, I’m taking advice on all commercial and matrimonial matters from Cramer Pelmont”. In paragraph 43 of her particulars of claim Mrs Trainer said she sent this email at the request of Mr Trainer.

A2.4 Ms Baldwin’s 22 Sep 2011 “enclose documentation” email to Mr Cramer

We are hopeful of an exchange and simultaneous completion very shortly on this matter. I enclose the documentation as it currently stands, and as it affects Monique:

The amendments to be made do not actually affect Monique’s position under this Contract.

Monique has also paid to me the sum of £3,600.00 on account of costs, these include my firm’s costs and Counsel’s fees. Her share of these fees will be deducted from her figure of £275,000.00. Please let me have the bank details to which Monique’s share should be forwarded on completion.

A2.5 The Buswell 22 Sep 2011 “on behalf of Monique” email to Mr Cramer

23. Also on 22 September 2011 an email was sent from an email address of a person

called Matt Buswell. The subject line stated, “sent on behalf of Monique”. The email

was sent to Mr Paul Cramer of Cramer Pelmont:

Dear Paul,

affidavit should read as follows, we agreed the consent order of the 7 October will now be varied in unequal terms of future financial interests which will be beneficial to me, which is related to the sale of the matrimonial home as a matter of urgency.

Monique

A2.6 The matrimonial variation deed, distinct from the Deed of Variation

Mr Eric Charnley of Cramer Pelmont. What was envisaged was that the Family Court would approve proposed amendments to the matrimonial consent order. On 23 September 2011 Mr Charnley reported to Downs that the court had refused to amend that order. In accordance with a suggestion made by the Family Court, Mr Charnley drew up a proposed document which I shall refer to as “the matrimonial variation deed”. Under this deed Mr and Mrs Trainer would agree that as regards the sale of Wildwood Lodge the matrimonial consent order would not apply. Instead, the proceeds of sale of Wildwood Lodge should, after being used to discharge relevant mortgages, be used to pay the conveyancing costs and disbursements of Downs, and to pay barrister’s fees in connection with the sale, after which they would be distributed by making a payment to Mrs Trainer of £300,000 and making payment of the balance to Mr Trainer.

A2.7 Events on 5 October 2011 and their consequences

executed a deed of variation of the sale contract for Wildwood Lodge (“the Deed of Variation”), the matrimonial variation deed, and a deed of transfer.

… was unattended by any solicitor and she executed the documents without having received any advice from Downs or Cramer Pelmont, without a proper understanding of the documentation, and simply believing that it reflected what she had previously been told was agreed, that the revised terms were the best available, that she and Mr Trainer were receiving similar sums on completion, and that she had no alternative but to execute the documents in the form proposed.

paragraphs 51 to 57 of the particulars of claim stated:

51. By the Deed of Variation… it was agreed:

…

A2.8 Mr Charnley’s 7 October 2011 “To whom it may concern” document

30.On 7 October 2011 Mr Charnley on behalf of Cramer Pelmont signed a document headed “TO WHOM IT MAY CONCERN”. The document stated:

Re: Monique Trainer

I hereby certify that I have explained the terms and implications of the Deed which my client, Monique Trainer anticipates entering into with her former husband Nicholas Trainer in relation the sale of the former matrimonial Home, Wildwood Lodge, 9 North End, London NW3 7HH.

In particular I have drawn her attention to the fact that the lump sum of £300,000.00 she proposes to accept on the sale of the property is potentially much less than she would be entitled to under the terms of the Consent Order entered into and approved by the court in her divorce.

Having considered the above my Client wishes to enter into the deed in consideration of the accelerated receipt by her of the lump sum, which she wishes to utilise in another transaction.

A2.9 Completion, bankruptcy and the Ebgui commission, freezing order & trial

particulars of claim states that Mrs Trainer received £300,000 in addition to the £75,000 which she had received as her share of the deposit.

letter stated:

We have been presented with evidence… that Nicholas Trainer has, without Monique Trainer’s knowledge or consent, conducted negotiations and obtained for himself…further payments of £50,000 and £25,000 in respect of the purchase of the properties.

appointed as trustee in bankruptcy: see section A3 below.

read the witness statement of [Mr Trainer] and confirm that insofar as it relates to matters in my knowledge… it [is] true.

from a transcript of Mr Trainer’s evidence are set out in section A7 below.

A2.10 Mrs Trainer’s allegations against Mr Trainer, Downs and Cramer Pelmont

36.On the basis of events and assertions described above, among others, the particulars of claim made allegations of liability against Mr Trainer, Downs and Cramer Pelmont:

(1) in relation to Mr Trainer:

obliged to account for and/or pay to Mrs Trainer 50% of any sums received on account of or in connection with Wildwood Lodge and/or its intended eventual sale, insofar as such sums were received by him prior to entering into the Deed of Variation and matrimonial variation deed;

half share in this regard were described as:

the sums of £50,000 and £25,000 (or at least £12,500 thereof) and any such further sums, not yet disclosed, as Mr Trainer may have received prior to … entry into the

Deed of Variation and [matrimonial variation deed];

Trainer had suffered loss:

in the like sums for which Mr Trainer is obliged to pay equitable compensation to [Mrs Trainer].

variation deed and in respect of the completion of the sale of Wildwood Lodge;

37. Taken at face value, both the amended “brief details of claim” and Mrs Trainer’s

particulars of claim included allegations of breach of contract. The master noted, however, at paragraph 14 of his judgment that allegations against Cramer Pelmont asserting breach of contract must be disallowed. This was accepted by Mrs Trainer. The reason is that the benefits given by section 14A apply only to claims for the tort of negligence. There is no comparable provision assisting claimants who sue for breach of contract. Prior to issue of the amended claim form all contractual claims by Mrs Trainer against Cramer Pelmont had become statute barred under section 5 of the 1980 Act. The consequence is that Mrs Trainer cannot now maintain those contractual claims.

A3 Bankruptcy discharge, Sears Tooth and the assignments

however, mean that assets which vested in the official receiver automatically revested in Mrs Trainer.

claim against Cramer Pelmont.

letter with paragraph numbers inserted in square brackets:

“If you are ok with it we can complete on a sale price of some amount in excess of £4.5m, which will cover the mortgages, my £1.5m and Monique’s £600k. Avi is confident Monique will not argue on the figures. Remember our agreement is absolutely secret from her and Cramer.

ever advised as to the Deed of Variation referred to in your letter being in existence …”.

After an exchange of correspondence with Mr Cramer steps were taken on behalf of Mrs Trainer to bring about an assignment from the official receiver of Mrs Trainer’s rights to bring further claims, including claims against Cramer Pelmont. Those rights were assigned on 31 January 2018, and the amended claim form was issued that day.

A4 Limitation Act 1980

45. So far as material, the 1980 Act provides:

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

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.

A5 Approach of the appeal court

decision of the master unless the court considers that in the circumstances of the appeal it would be in the interests of justice to hold a rehearing. Neither side suggests that the interests of justice require a rehearing. I proceed accordingly on the basis that the appeal is limited to a review. On this basis, CPR 52.21 provides that the appeal court will allow an appeal where the decision of the lower court was:

proceedings in the lower court.

the master. Accordingly, proceeding by way of review, the question I must decide is whether the master’s decision was wrong. In the present case there has been an evaluative judgment by the master. In those circumstances, I proceed on the basis that the appeal court is reluctant to interfere with such a decision, but will do so where the decision below has taken into account immaterial factors, omitted to take into account material factors, erred in principle or come to a decision that was either impermissible or “plainly wrong”: see the notes in Civil Procedure 2019 at page 1824. Additionally, on the present appeal each side has, without objection from the other, advanced submissions differing from those below. This has led me to reach conclusions on material factors which were not highlighted in submissions before the master.

was only to decide whether there was a reasonable argument that the claim against Cramer Pelmont was time-barred. If there is such an argument, then the question whether the claim is indeed time-barred is to be determined in the precautionary proceedings: see section A1.5 above.

master was right to conclude that there was no reasonable argument that the claim against Cramer Pelmont was time-barred. If, on an issue relevant to that question, there may be a reasonable argument open to Cramer Pelmont, it is important that this court should not pre-judge the eventual determination of that issue in the precautionary proceedings.

A6 Procedural history, including disappointing events

A6.1 Events prior to 15 July 2018

50. Cramer Pelmont’s application notice was issued on 26 February 2018. It sought to

dispose of the claim against Cramer Pelmont by a number of different routes. I am concerned with only one of these routes: the application to disallow the amendment to Mrs Trainer’s claim form introducing Cramer Pelmont as an additional defendant (see section A1.5 above). This application was made under CPR 17.2. Matters relied on in that regard were set out in a first statement of Mr Patric Rouendaal, the solicitor at Kennedy’s Law LLP with conduct of the matter on behalf of Cramer Pelmont. Mrs Trainer 1 (see section A2.7 above) was made on 30 April 2018 in response to the application. It was supplemented by a second statement on 3 July

2018 (“Mrs Trainer 2”) and by a third statement made on 13 July 2018 (“Mrs Trainer 3”). This was followed by a second statement of Mr Rouendaal on 13 July 2018 (“Rouendaal 2”). Exhibited to Rouendaal 2, among other things, was the email of 22 September 2011 sent from Mr Buswell’s email address (see section A2.5 above).

A6.2 Disappointing events: 15, 16 and 17 July 2018

16 July 2018 (“Mrs Trainer 4”). Paragraph 10 of Mrs Trainer 4 referred to the email of 22 September 2011 and stated:

I do not understand that email because it seems to indicate that the variation to the consent order would lead to unequal interests which would be “beneficial to me” rather than indicating that I understood I would get less than Mr Trainer. However, I confirm that I have never seen that email before and I do not know who Mr Buswell is. Whatever it may purport to be it was not an email sent on my behalf.

Buswell – “I can’t. Till later. I’m at the navy base. I’m not allowed to use my phone here. What’s up?”

Mr Buswell then spoke to C (who by that time had signed her witness statement) and told her he had been in touch with, and spoken to, Mr Rouendaal;

(d) on 17 July, at the hearing, Mr Wilton offered an apology on behalf of C, and an explanation that I did not altogether understand. He suggested that at first C had not recollected Mr Buswell, and that everything in the case was “free-wheeling, fast-moving and lastminute” (and it was indeed true that copious evidence emerged just before the hearing, as described above). She suggested that her eventual recollection of him proceeded “in parallel” with the preparation of the new (4^th) witness statement in which she had denied such knowledge. But it seems clear that she allowed her witness statement to be signed and served after she had made her first approach to contact Mr Buswell by email.

convenience I shall call paragraph [35A], along with paragraph 36:

[35A] Mr Asquith pressed the point that C had clearly attempted to contact her old friend in order to warn him what she was saying, and to interfere with a (potential) witness. He contended that for her to have professed no knowledge of Mr Buswell in a witness statement on Monday afternoon, when she had sent an email to him on Sunday and exchanged emails with him during Monday, could only have one explanation, which was that she was trying not only to mislead the court into disregarding the initial email which Mr Buswell had sent on her behalf, but also to subvert Mr Buswell into supporting her narrative (or at the very least to warn him about her proposal to disown him and the email he had sent so as to secure some co-operation).

36. It is hard to dissent from this proposition. Mr Asquith then suggested that, on the basis of this material, I should consider striking out the entire claim – at least as against D3 – as an abuse of process, but I made it clear that I was not prepared to consider such a step on a peremptory basis, and that if D3 wished to pursue that path then an application on notice, and proper argument, would be required. Following this indication D3 sought a short break, and then decided to press on with the instant application.

37. Mr Asquith submits further that this sequence of events suggests that C may not have an altogether trustworthy approach to historical accuracy, and that I should view all the direct evidence that she gives about the history with a particular degree of caution. I have some sympathy with this. His Note goes further, and makes the point that “If C cannot be trusted, then there is obviously (at least) a real chance that her date of constructive knowledge is not when she says it was”. Whilst I understand this point all too well, I do consider that – as Mr Wilton submits – it is necessary to avoid broad generalisation if possible, and I should rather drill down into the facts and the evidence; and I do consider that there is a wealth of contemporaneous documentation which assists me in getting to a conclusion.

A6.3 Judgment, corrected judgment & clarification response: 25 July to 20 Sep 2018

A6.4 Appellant’s notice, appeal skeleton, grant of permission: 5 Oct to 4 Dec 2018

permission to appeal, and ordered a speedy hearing.

A6.5 Respondent’s notice & Mrs Trainer’s February skeleton: 8 & 15 February 2019

appeal court to uphold the master’s order on an additional ground. I set out that additional ground, with paragraph numbering added by me in square brackets for convenience:

was filed by Mrs Trainer on 15 February 2019.

A6.6 Appeal hearing, 21 Feb 2019: refusal of further evidence application

62.The appeal, for which a single day had been allocated, came on for hearing before me on 21 February 2019. On that day I heard argument for Cramer Pelmont in support of its application to adduce new evidence. I gave an oral judgment refusing that application, essentially because it seemed to me that the new evidence could reasonably have been obtained prior to the hearing before the master.

A6.7 Appeal hearing, 21 Feb 2019: Mrs Trainer’s submissions on GOA4

argument as soon as possible after 15 March 2019, along with procedural directions designed to ensure efficient preparation for the restored hearing.

A6.8 Further procedural steps and resumed hearing on 21 May 2019

far identified with sufficient clarity the real issues that divided them. At my request

Mrs Trainer on 25 February 2019 filed a revised list of issues.

Pelmont’s reply skeleton”). It was accompanied by a further revised list of issues (“Cramer Pelmont’s reply list of issues”).

Cramer Pelmont’s reply skeleton. I shall refer to it as “Mrs Trainer’s rejoinder skeleton”.

note”) comprised two parts. Part A concerned issue 1(2), and is dealt with in section B2 below. Part B concerned issue 1(1), which does not arise: see section D below.

discontinued their claims against each other. It was not suggested by either side in the present appeal that this affected the issues arising on the present appeal.

A7 The master’s judgment

A7.1 The master’s introduction, and the complication he identified

9. [9.1] The initial burden is on C to show that D3 would have no real prospect of establishing a limitation defence. As the current White Book puts it, at note 24.2.5:

In ED&F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472, it was said that under r.24.2the overall burden of proof rests on the applicant to establish that there are grounds to believe that the respondent has no real prospect of success and that there is no other reason for a trial. The existence of this burden is indicated by para.2(3) of the Practice Direction supplementing Pt 24; the applicant must (a) identify concisely any point of law or provision in a document on which they rely, and/or (b) state that the application is made because the applicant believes that on the evidence the respondent has no real prospect of succeeding on the claim or issue or (as the case may be) of successfully defending the claim or issue to which the application relates, and in either case state that the applicant knows of no other reason why the disposal of the claim or issue should await trial. The essential ingredient is the applicant’s belief that the respondent has no real prospect of success and that there is no other reason for a trial.

If the applicant for summary judgment adduces credible evidence in support of their application, the respondent becomes subject to an evidential burden of proving some real prospect of success or some other reason for a trial. The standard of proof required of the respondent is not high. It suffices merely to rebut the applicant’s statement of belief. The language of r.24.2 (“no real prospect … no other reason …”) indicates that, in determining the question, the court must apply a negative test. The respondent’s case must carry some degree of conviction: the court is not required to accept without analysis everything said by a party in his statements before the court (ED&F ManLiquid Products Ltd v Patel [2003] EWCA Civ 472; [2003] C.P. Rep. 51at [10]). In evaluating the prospects of success of a claim or defence judges are not required to abandon their critical faculties (Calland v Financial Conduct Authority [2015] EWCA Civ 192at [29]).

[9.2] This suggests that there is at least a modicum of potential burdenshifting, if C can produce credible evidence in support of her contention that there is no good limitation defence.

10. [10.1] The effect of all this is that if by 31 January 2015 (i.e. the date three years before the amendment) the “starting date” had passed in relation to C’s claim against D3, then there would be a reasonably clear limitation defence.

[10.2] I thus need to keep in mind the point at which C came to “know” (within the extended meaning provided for by section 14A):

A7.2 The master’s summary of background facts and issues

77. Paragraphs 15 to 53 were headed “Summary of Background Facts and Issues”. I have

already set out (in section A6.2 above) observations by the master which formed part of this section. In addition I note here that, in relation to Mr Trainer’s witness statement and its exhibits in the Ebgui proceedings, the master said at paragraphs 41 to 44:

41. Thereafter, later in October 2011, witness statements in response were provided by D1 and C. In his witness statement, D1, whilst contending that the eventual deal was different from that which Mr Ebgui had promoted, also explained the outcome of the transaction and Mr Ebgui’s involvement. He said at paragraph 4(b):

“at meetings during March 2011, I met with the buyers [Messrs Dodi and Niemiec] and the applicant [Mr Ebgui] in several occasions. During these meetings, the applicant and buyers tried to persuade me to a accept a different deal from what had been agreed in the exchanged contracts otherwise they would not complete at all. The applicant was plainly a good acquaintance of the buyers, and would often step out of meetings to speak with them privately. At a meeting on 22 March 2011, and having spoken privately with the buyers, the applicant told me that if I accepted a new deal structure (which was less advantageous), I would not have to pay my half of the commission. … I considered the buyer’s revised deal, the applicant’s position on not seeking commission, and agreed to it on that basis. I confirmed this to Avi Dodi and the applicant separately by email on 25 March 2011 (pages 6 and 8), which included an attachment (pages 7 and 9). The matter was also referred to my solicitor Alison Baldwin (page 10) …” His email of 25 March 2011 to Mr Dodi read (so far as relevant):

“Hi Avi

Further to our telephone conversation of a couple of hours ago I’m attaching the draft terms which incorporate what we agreed on Tuesday evening and the terms I had typed on the sheet you read when we were all together on Tuesday evening …”

The attachment, headed “Terms of Contract”, is the one referred to above.

“She did, yes, but Downs – that’s because I had complicated transaction to remain in the project and she didn’t, so my solicitor negotiated that very complicated deed of variation that was maybe 20 pages long and a substantial transfer.”

[Asked about the connection with moving to Downs]

“My solicitor has done all the work on it. I had a solicitor, she had a solicitor. My solicitor did all the work. If we went to her solicitor, her solicitor would have had to review a 20-page deed of variation that was sufficiently complicated that it was done by leading junior counsel, it was that complicated that it was done through my solicitor, her solicitor would have had to go through the whole thing with counsel all over again to get to a completion and that’s her solicitor, not my one.”

I read this as a confirmation – which may or may not been heard by C – that D1 and his solicitor had seen no point in sending the Deed of variation or its drafts to D3, since it would merely have caused more work to be done by D3 by way of review. C was contending here that it was unnecessary; but on one view of the facts, if D1 was indeed seeking to keep the extent of his financial expectations secret from C, this would have been another reason for not sending over the Deed of Variation. It will be remembered that he had insisted on the earlier “Heads of Contract” being kept secret from C and her solicitor Mr

Cramer, and indeed that there had been a suggestion that – according to Mr Dodi – C would not argue over the figures if she was going to receive the £600,000 that was then proposed.

44. C also alleges in paragraph 66 of her amended particulars of claim that at this trial, D1 also stated that:

“Monique took a massive financial hit going out at the end that has maybe cost her £1 million. I wasn’t offered to go out apart from if I took that massive financial hit, so we were put completely over a barrel where she came out of it with virtually nothing and I would come out with virtually nothing or be stuck in it for three years. That was the proposal and it was totally – it was totally bad proposal, but it was the best of the remainder which was that they went away and we were left with [Mr Dodi] to start from scratch.”

(The way that D1 pleads to this averment in paragraph 40 of his defence is equivocal). It is not clear that his description of these arrangements as “totally bad” is consistent with his view of them as set out in emails of 25 and 30 March 2011, although in fairness that headline price appears to have fallen from the original £5.3m to £4.5m, and then to the eventual £3.483m.

A7.3 The master’s comments on difficulties faced by Mrs Trainer

78. As to Mrs Trainer’s ability to think about and investigate potential claims, the master

said at paragraph 45 of his judgment:

45. C explains the difficulties that she encountered during this period. She had spent time homeless, and had lived in a hostel for a while; she had had to go and live with her parents in Cyprus; she had lost custody of her children. I accept that these matters will have, at least to some extent, impeded her ability to think about or investigate any potential claims. (Later on, around summer 2016, her daughter died, and she became ill in March 2017; but, as Mr Asquith points out, by this time her investigations were on foot, and D contends that by then she had or should have had the relevant knowledge).

A7.4 The master’s “Conclusions” section in his judgment

“Conclusions”. This section began with an introductory observation in paragraph 54:

54. I recognise that C, as a property developer, could have been troubled by the approach of Allanton in seeking to alter the arrangements for purchase, but in circumstances where her husband – a solicitor – was explaining that a renegotiation was necessary, and noone was telling her anything different, I do not regard it as surprising that she did not challenge or investigate these matters at the time.

55. I have asked myself whether a party may have suffered “damage” for the purposes of section 14A of the 1980 Act in circumstances where something has gone wrong, but it is not evident that it is anyone’s fault (so as to make it worth bringing an action), and the other prospective co-contractor, who on the face of it may stand to lose pretty much the same, and is himself a solicitor (and so knowledgeable about such matters) accepts that this is inevitable. I am not sure that in such circumstances damage has necessarily been suffered.

Eaton-under-Heywood at paragraph 90 of his speech in Haward:

90. What the claimant must know to set time running is the essence of the act or omission to which his damage is attributable, the substance of what ultimately comes to be pleaded as his case in negligence. That essence or substance here could no doubt be characterised in either of two ways: either as the act of recommending investment in the company (or omitting to caution against it-on the particular parts of this case these are two sides of the same coin), or, with greater particularity, the act of recommending investment without first carrying out the investigations necessary to justify such positive advice. Having at first preferred the latter characterisation, I have come to prefer the former. True, under the former the claimant knows nothing beyond the fact that his advisers led him into what turned out to be a bad investment; he does not know, as under the latter characterisation he would, that he has a justifiable complaint against his advisers. But he surely knows enough (constructive knowledge aside) to realize that there is a real possibility of his damage having been caused by some flaw or inadequacy in his advisers' investment advice, and enough therefore to start an investigation into that possibility, which section 14A then gives him three years to complete.

See also paragraph 5-096 of Jackson & Powell on Professional Liability:

If a person is to know that damage is attributable to the act or omission of a third party, he needs to know that he has suffered damage. In some cases this will be obvious, but in others it will not be. For example, a client may rely upon the advice of his professional adviser and make a payment. He will know immediately that he parted with money and so is worse off. But he will only know that he has suffered damage when he discovers that the advice was incorrect and that the payment should not have been made...

57. I suspect that this leads to the conclusion that C knew that something had gone wrong, i.e. that she had suffered “damage”, at a comparatively early stage. Indeed, on her own case, she knew that D1 had the prospect of further sums. Furthermore, even if the arrangements may have been kept secret at first, their deployment at an early stage in the Ebgui litigation suggests that D1 was prepared to risk C finding out that he had obtained the prospect of significant deferred consideration in the future.

cumulative knowledge. In the circumstances of the present case, those facts were, as set out in s 14A(8)(a) and (b):

59. I accept that what counts here is the actual or imputed knowledge of [Mrs Trainer] – save to the extent that the [official receiver] (her trustee in bankruptcy) may have acquired further relevant knowledge during the period between the bankruptcy and the assignment of the cause of action; but there is no suggestion that the [official receiver] did acquire any such knowledge.

Trainer’s case was not put forward as a case of Cramer Pelmont giving bad advice about entering into the Deed of Variation. Rather, the nature of the case put forward by Mrs Trainer against Downs and Cramer Pelmont was that they both:

… were, at times at least, acting for [Mrs Trainer] in respect of the sale of [Wildwood Lodge] and yet in relation to the varied contractual arrangements and completion neither solicitor provided any worthwhile advice to [Mrs Trainer] whatsoever, either about Allanton’s contention that it did not have to complete on the original contractual terms or about the proposed varied contractual terms or even so as to ensure [Mrs Trainer] had a proper opportunity to review and comprehend the proposed varied contractual terms before signing up to them.

61:

61. … I am not persuaded that C knew at the time (October 2011), or indeed for some time afterwards, that she had suffered damage which was attributable to negligence at all. On any view, however, it is clear that by early 2016, she did have in mind investigation of what had gone wrong, and prospective pursuit of a claim if possible.

62. I accept, on the material before me, that there is no evidence that C had actual knowledge of any prospective claim against D3, or that “the damage was attributable in whole or in part to the act or omission” of D3, until late in 2017.

paragraphs 65 and 66 with the Ebgui proceedings:

case of imputed knowledge, the master said in paragraphs 67 to 69:

D2 in a letter of 15 September 2017 to Sears Tooth that “your client was obtaining advice from Cramer Pelmont” would not suffice to set the trail running (and in any event was less than a year before the amendment). During periods of bankruptcy and significant personal difficulties, there is a limit to what investigations were commenced in 2016, corresponding to the time that C emerged from bankruptcy. I am not persuaded that D3, on the material before the court, would have any real prospect of showing that C obtained, or ought reasonably to have obtained, any knowledge about D3’s involvement sufficient to start a train of enquiry running before late 2017, when documentation started to emerge from D2 and D3.

went on in paragraphs 70 and 71 to add:

A7.5 The request for clarification and the master’s response

Paragraphs 1 and 2 stated:

master’s conclusion was set out in paragraph 8:

8. I do not consider that there is any uncertainty as to the reason for my decision, or that I have failed to give a clear explanation for my order. The third defendant firm knows why it has been unsuccessful. The reasons given for that are not inadequate; if they are wrong or misguided then an appeal court can so determine. As stated above, I do not consider that clarification of parts of a judgment that are commentary, and obiter, is either required or desirable.

said at paragraph 45 of his judgment:

45. C explains the difficulties that she encountered during this period. She had spent time homeless, and had lived in a hostel for a while; she had had to go and live with her parents in Cyprus; she had lost custody of her children. I accept that these matters will have, at least to some extent, impeded her ability to think about or investigate any potential claims. (Later on, around summer 2016, her daughter died, and she became ill in March 2017; but, as Mr Asquith points out, by this time her investigations were on foot, and D contends that by then she had or should have had the relevant knowledge).

A8 Grounds of appeal and issues

A8.1 Cramer Pelmont’s four grounds of appeal

97. Cramer Pelmont relies on four grounds of appeal:

GOA 1

1. If the court considers the Judgment contains no such finding, the Master was wrong in law and/or fact not to find that C was fixed with knowledge (s.14A(10) of the 1980 Act) of the contents of the Deed of Variation and/or the Terms of Contract exhibited to D1’s witness statement in the Egbui Freezing Injunction proceedings.

GOA 2

2. The Master was wrong in law and/or fact to dismiss the indications C already had or may have had that D3 might be responsible for the damage of which she (at least reasonably arguably) was aware. Had they not been dismissed, the Master would have found that D3 had a reasonably arguable case that she had the relevant knowledge prior to February 2015.

GOA 3

3. The Master was wrong in law and/or fact to reject D3’s argument that if it was reasonably arguable that C gained knowledge of damage in 2011/12 then it was reasonably arguable that she would have gained knowledge of D3’s alleged responsibility for it within a year or so, not least because on her case that was what had happened (albeit 5 years later), and therefore she should be fixed with knowledge of the same for the purposes of s.14A(10).

GOA 4

4. Given C’s willingness to lie in the face of court and seek to interfere with a potential witness in advance of the hearing, her evidence should have been treated with more caution, such that the only available conclusion was that she

had not discharged the burden on her to show D3 had no real prospect of establishing a limitation defence. In this regard the judge was wrong in fact.

A8.2 The initially agreed issues

98. In advance of the hearing before me I asked the parties to seek to agree on the issues

which arose from the grounds of appeal (set out above) and the respondent’s notice (set out in section A6.5 above). So far as material, the parties agreed that there were two such issues. Below I set out those initially agreed issues, and summarise aspects of them identified by the parties:

Issue A: On the evidence before the master, was his ‘decision’ (if there was one) flawed on the question of whether it was reasonably arguable that the claimant or her trustee in bankruptcy knew (actually or constructively) the claimant had suffered damage more than 3 years before 31 January 2018 i.e. before 31 January 2015, and/or should the Master have found that it was not/was not reasonably arguable that the claimant/her trustee in bankruptcy had such (actual or constructive knowledge) before 31 January 2015.

On this issue the parties identified that:

(A1) the master addressed this issue at paragraphs 10a, 42 and 57; (A2) this issue arises in the notice of appeal at grounds of appeal 1 and 4, and the respondent’s notice: single ground.

Issue B: On the evidence before the master, was his decision that it was not reasonably arguable that the claimant/her trustee in bankruptcy knew (actually or constructively) before 31 January 2015 that damage was attributable to acts or omissions of the third defendant ‘flawed’, and, if so, should he have found that it was/was not reasonably arguable that the claimant/her trustee in bankruptcy had such knowledge before that date.

On this issue the parties identified that:

(B1) the master addressed this issue at paragraphs 58-72.

(B2) this issue arises in the notice of appeal at grounds of appeal 2 to 4, and the respondent’s notice: single ground.

99. These initially agreed issues reflected the cumulative knowledge requirements in

section 14A:

A8.3 The revised agreed categories of issues

100.In due course both sides formulated revisions to the initially agreed list of issues. They have now agreed that the issues fall into two categories. Agreed category 1 concerns issues of law/mixed fact and law as to the application of section 14A. In this category Mrs Trainer identifies three issues.

A8.4 Issue 1(1): knowledge acquired after bankruptcy

Trainer in this way:

Issue 1(1): if [Mrs Trainer] had not acquired the knowledge required for bringing her claim against [Cramer Pelmont] before her bankruptcy, does section 14A(5) have the effect that from that date until the assignment of rights on 31 January 2018 it is the actual or constructive knowledge of [Mrs Trainer’s] trustee in bankruptcy (“the trustee”) which is material when inquiring whether and when such knowledge was acquired.

section D below.

A8.5 Issue 1(2): what suffices for material facts knowledge?

103.The second issue in category 1 is dealt with in section B2 below. It concerns material facts knowledge. I shall call it issue 1(2). A degree of common ground has been reached on issue 1(2). This enables it to be expressed in this way:

Issue 1(2): While it is agreed that there must be knowledge that things could and should have been different, would it have been sufficient for Mrs Trainer to acquire actual or constructive knowledge of the inequitable apportionment between her and Mr Trainer, or was it also necessary to know that Allanton had no contractual right to insist on the varied terms and/or that there was no contractual warrant for the inequitable apportionment;

A8.6 Issue 1(3)(a): constructive knowledge from pre-damage facts

104. The third issue in category 1 contains two sub-issues. Both concern the constructive

knowledge provisions in section 14A(10). The first sub-issue is dealt with in section B3 below. I shall call it issue 1(3)(a):

Issue 1(3)(a): Under section 14A(10), can knowledge be imputed to a claimant in respect of observable or ascertainable facts she might reasonably have been expected to acquire (such as of the content of the unexecuted Deed of Variation) prior to the occurrence of the damage founding the claim in negligence;

A8.7 Issue 1(3)(b): trail of inquiry from one defendant to another

105. The second sub-issue is dealt with in section B4 below. I shall call it issue 1(3)(b):

Issue 1(3)(b): Under section 14A(10) can knowledge be imputed to a claimant in respect of the claim and damage in issue on the footing that she might reasonably have been expected to acquire knowledge of facts material to a potential claim against a different party (Mr Trainer) in respect of different damage, which might then have led to a trail of enquiry ultimately implicating Cramer Pelmont.

A8.8 Issue 2(1),(2): Agreed category 2 – inferences & conclusions as to damage

106. Agreed category 2 concerns the inferences and conclusions drawn by the master. In

this category the parties identified 4 issues. What I shall call issues 2(1) and (2) are two sides of the same coin. They are dealt with together in section C1 below:

Issue 2(1): was the master right to find, or, if he did not do so, should he have found, that it was reasonably arguable that Mrs Trainer knew (actually or constructively) the ‘material facts about the damage’ at an early stage, and in any event prior to 31 January 2015, because:

Issue 2(2): conversely, should the master have found it was not reasonably arguable that Mrs Trainer (or her trustee) knew of the ‘material facts about the damage’ until after 31 January 2015 because it was necessary for her to know, and there is no evidence she knew and it was not reasonable to expect her to have discovered:

A8.9 Issue 2(3),(4): inferences & conclusions on causation and identity knowledge

107. What I shall call issues 2(3) and 2(4) are two sides of a similar coin. They are dealt

with in section C2 below:

Issue 2(3): should the master have found that it was reasonably arguable that Mrs Trainer (or if need be, from 28 September 2012, her trustee) had actual or constructive knowledge prior to 31 January 2015 that the damage in issue was attributable in whole or in part to the acts or omissions of Cramer Pelmont because:

2, para 8) and had attempted to persuade the Court in

September 2011 to vary the matrimonial consent order; and/or, as

Issue 2(4): conversely, was the master right to find that it was not reasonably arguable that Mrs Trainer had actual or constructive knowledge prior to 31 January 2015 that the damage in issue was attributable in whole or in part to the acts or omissions of Cramer Pelmont:

B. Application of section 14A

B1 Introduction: issues 1(1), 1(2) and 1(3) and Haward

B1.1 Issues 1(1), 1(2) and 1(3)

issues falling under agreed category 1. This category concerns issues described by the parties as being issues of law, or mixed fact and law, as to the application of section 14A of the 1980 Act.

1(2) and 1(3). Issue 1(1) is dealt with in section D below.

B1.2 The House of Lords decision in Haward: knowledge of negligence irrelevant

Haward, and to set out observations in the speeches of members of the Appellate Committee about the irrelevance of knowledge that there had been negligence. In section B1.3 I set out observations in those speeches concerning material facts knowledge. In section B1.4 I set out observations in those speeches on causation knowledge.

the headnote to the report in the Weekly Law Reports:

On 9 December 1994, in reliance on the professional advice of a partner [Mr Austreng] in the first defendants [Fawcetts], a firm of accountants, the first claimant [Mr John Haward] and/or the second claimant [W.J. Haward Ltd] acquired a controlling interest in a company [Kings Stagg Engineering Ltd, later renamed Haward Agriculture Ltd] by subscribing for 60,000 newly issued £1 shares at par. In addition, the third claimant [W.J. Haward Family Trust No. 1] acquired the freehold of the company’s leasehold premises for £100,000. It was forecast at the time of the acquisition that some £100,000 would have to be invested in the company during 1995 to bring it to reasonable profitability. The forecast, however, turned out to be mistaken in that substantial further sums had to be invested by the first, second or third claimants in 1995, 1996, 1997 and 1998 but still failed to bring the company to profitability. In 1998, the first claimant asked a specialist in corporate rescues to investigate the company’s losses, and on 6 December 2001 the claimants brought an action against the first defendants in contract and tort for damages for professional negligence. The defendants denied negligence and pleaded that the claims based on breaches of contract or losses prior to 6 December 1995 were statute-barred. In reply, the claimants relied on the three-year limitation period in section 14A of the Limitation Act 1980 and pleaded that the earliest date on which they had had the knowledge referred to in section 14A(5) was 17 December 1999, subsequently modified to May 1999. The defendants did not, in response, plead reliance on section 14A(10). The issues of limitation were ordered to be tried as preliminary issues. The judge decided the preliminary issues in favour of the defendants. The Court of Appeal allowed an appeal by the claimants.

from the decision of the Court of Appeal was allowed. They arrived at that outcome, however, by routes which differed in certain respects. One such respect concerns the approach the speeches took to section 14A(7), concerning the material facts knowledge required before the section 14A alternative limitation period starts to run. Lords Nicholls and Scott did not discuss this to any great extent. However Lords Walker, Brown and Mance gave speeches which made observations in relation to material facts knowledge.

knowledge of negligence before the alternative limitation period began to run, it is convenient to begin by referring two earlier cases, Dobbie v Medway Health Authority[1994] 1 WLR 1234 and Hallam-Eames v Merrett Syndicates Limited

[2001] Lloyd’s Reports PN 178. Relevant aspects of those cases are conveniently summarised in paragraph 45 of Lord Scott’s speech in Haward, and paragraph 62 of Lord Walker’s speech.

45. Dobbie v Medway Health Authority[1994] 1 WLR 1234 was a case in which a patient had had a lump on her breast. The surgeon, without first subjecting the lump to a microscopic examination in order to determine whether it was cancerous or benign, removed the breast. This was in 1973. The lump was subsequently found to be benign. The patient knew very soon after the operation that the lump was benign but did not know until 1988 that that meant her breast need not have been removed. She began proceedings for negligence in 1989. Sir Thomas Bingham M.R. (as he then was) referred to the “knowledge” test formulated by Lord Donaldson of Lymington M.R. in Halford v Brookes[1991] 1 WLR 428at 443 and continued at 1240:

“This test is not in my judgment hard to apply. It involves ascertaining the personal injury on which the claim is founded and asking when the claimant knew of it.”

and, at 1243, expressed this conclusion

“The personal injury on which the plaintiff seeks to found her claim is the removal of her breast and the psychological and physical harm which followed. She knew of this injury within hours, days or months of the operation and she at all times reasonably considered it to be significant. She knew from the beginning that this injury was capable of being attributed to, or more bluntly was the clear and direct result of, an act or omission of the health authority. What she did not appreciate until later was that the health authority's act or omission was (arguably) negligent or blameworthy. But her want of that knowledge did not stop time beginning to run.”

And in Hallam-Eames v Merrett Syndicates [2001] LlR PN 178, in which a number of members of Lloyd's facing re-insurance underwriting liabilities were alleging negligence on the part of the active underwriter, their members' agents and their syndicates' managing agents and where limitation defences had been raised, Hoffmann LJ (as he then was) emphasised the statutory words

“attributable … to the act or omission which is alleged to constitute negligence” and gave this explanation at 181 (left hand column)

“In other words the act or omission of which the plaintiff must have knowledge must be that which is causally relevant for the purposes of an allegation of negligence … It is this idea of causal relevance which various judges of this court have tried to express by saying the plaintiff must know ‘the essence of the act or omission to which the injury is attributable’ (Purchas LJ in Nash v Eli Lilly & Co [1993] 1WLR 782 at 799) or ‘the essential thrust of the case’ (Sir Thomas Bingham M.R. in Dobbie[1994] 1WLR 1238 ) or that ‘one should look at the way the plaintiff puts his case, distil what he is complaining about and ask whether he had in broad terms knowledge of the facts on which that complaint is based’ (Hoffmann LJ in Broadley [1993] 4 Med LR 328, 332)”.

115. Paragraph 62 of Lord Walker’s speech gave a fuller citation from Hallam-Eames:

62. Hallam-Eames v Merrett Syndicates … was another claim for pure economic loss. Hoffmann LJ delivered the reserved judgment of the Court (Sir Thomas Bingham MR, Hoffmann and Saville LJJ). It merits quotation at some length (at p 181):

“In our judgment this [the judge's view of what the claimants had to know] is an over-simplification of the reasoning in Broadley and Dobbie. If all that was necessary was that a plaintiff should have known that the damage was attributable to an act or omission of the defendant, the statute would have said so. Instead, it speaks of the damage being attributable to the act or omission which is alleged to constitute negligence. In other words, the act or omission of which the plaintiff must have knowledge must be that which is causally relevant for the purposes of an allegation of negligence. There may be many acts, omissions or states which can be said to have a causal connection with a given occurrence, but when we make causal statements in ordinary speech, we select on common sense principles the one which is relevant for our purpose. In a different context it could be said that a Name suffered losses because some member's agent took him to lunch and persuaded him to join Lloyd's. But this is not causally relevant in the context of an allegation of negligence.

It is this idea of causal relevance which various judges of this court have tried to express by saying the plaintiff must know the ‘essence of the act or omission to which the injury is attributable’ (Purchas LJ in Nash v Eli Lilly & Co [1993] 1 WLR 782, 799) or ‘the essential thrust of the case’ (Sir Thomas Bingham MR in Dobbie[1994] 1 WLR 1234, 1238) or that ‘one should look at the way the plaintiff puts his case, distil what he is complaining about and ask whether he had in broad terms knowledge of the facts on which that complaint is based.’ (Hoffmann LJ in Broadley [1993] 4 Med LR 328, 332).

If one asks on common sense principles what Mrs Dobbie was complaining about, the answer is that the surgeon had removed a healthy breast. It would in our view be a seriously incomplete statement of her case to say that it was simply that the surgeon had removed her breast. This is not a matter of elaborating the detail by requiring knowledge of precisely how he had come to do the act complained of, such as this court rejected in Broadley. It was part of the essence of her complaint. Nor is it requiring knowledge of fault or negligence. The court's emphatic rejection of such a requirement is entirely consistent with characterising the act complained of (and of which knowledge was therefore required) as the removal of a healthy breast. But the judge, as it seems to us, has read Dobbie to mean that knowledge that the surgeon had removed her breast would have been enough.

If one asks what is the principle of common sense on which one would identify Mrs Dobbie's complaint as the removal of a healthy breast rather than simply the removal of a breast, it is that the additional fact is necessary to make the act something of which she would prima facie seem entitled to complain. She was suspected of having a cancerous lump and if this had been the case, the removal of her breast would not have been a matter for complaint. Likewise Mrs Broadley's complaint was the surgeon had caused damage to her foot when he was supposed to be mending her knee. Mr Clarke QC, for the auditors, and Mr Toulson QC, for the members' agents, protested that such a principle was a back-door way of introducing a requirement that the plaintiff must have known that the defendant had been negligent (which section 14A(9) expressly declares to be irrelevant) or was by some other criterion at fault (which this court rejected in Broadley and Dobbie.) We do not agree. The plaintiff does not have to know that he has a cause of action or that the defendant's acts can be characterised in law as negligent or as falling short of some standard of professional or other behaviour. But, as Hoffmann LJ said in Broadley, the words ‘which is alleged to constitute negligence’ serve to identify the facts of which the plaintiff must have knowledge. He must have known the facts which can fairly be described as constituting the negligence of which he complains. It may be that knowledge of such facts will also serve to bring home to him the fact that the defendant has been negligent or at fault. But this is not in itself a reason for saying that he need not have known them.”

116. As to the general principle that knowledge of negligence is irrelevant, it is convenient

at the present stage to set out paragraphs 12 to 14 from the speech of Lord Nicholls:

‘knowledge’ provisions and the statutory provision rendering ‘irrelevant’ knowledge that, as a matter of law, an act or omission did, or did not, amount to negligence: section 14A(9). By the latter provision Parliament has drawn a distinction between facts said to constitute negligence and the legal consequence of those facts. Knowledge of the former (the facts) is needed before time begins to run, knowledge of the latter (the legal consequence of the facts) is irrelevant. As Sir Thomas Bingham MR said in the clinical negligence case of Dobbie v Medway Health Authority [1994] 1 WLR 1234, 1242, knowledge of fault or negligence is not necessary to set time running. A claimant need not know he has a worthwhile cause of action.

[1994] 1 WLR 1234. The judge held the claimant had ‘broad knowledge of sufficient facts to describe compendiously [1] that her breast had been unnecessarily removed, [2] that something had gone wrong, and [3] that this was due to the defendant's negligence’: [1994] 1 WLR 1234, 1243. In the Court of Appeal this part of the judge's reasoning was criticised. These matters, it was said, were irrelevant. In my respectful view the Court of Appeal's criticism was well directed so far as it related to the third of these three matters, but not so far as it related to the other two. The essence of the claimant's case was that she had suffered injury by the removal of a healthy breast, that is, her breast had been removed unnecessarily and something had gone wrong. These were the acts and omissions she alleged constituted negligence. Under the statute time did not begin to run until she knew of these acts or omissions. Until she was aware of these matters she could not know her injury was attributable to them. I agree with the observations to this effect made by the Court of Appeal in HallamEames v Merrett Syndicates Ltd [2001] Lloyd's Rep PN 178, 181.

B1.3 The House of Lords decision in Haward: material facts knowledge

15. In many cases the distinction between facts (relevant) and the legal consequence of facts (irrelevant) can readily be drawn. In principle the two categories are conceptually different and distinct. But lurking here is a problem. There may be difficulties in cases where a claimant knows of an omission by say, a solicitor, but does not know the damage he has suffered can be attributed to that omission because he does not realise the solicitor owed him a duty. The claimant may know the solicitor did not advise him on a particular point, but he may be totally unaware this was a matter on which the solicitor should have advised him. This problem prompted Janet O'Sullivan, in her article ‘Limitation, latent damage and solicitors' negligence’, 20 Journal of Professional Negligence (2004) 218, 237, to ask the penetrating question: unless a claimant knows his solicitor owes him a duty to do a particular thing, how can he know his damage was attributable to an omission?

40. It is to be noted that subsections (6)(a) and (7) refer to … “… the material facts about the damage”. The limited character of the reference is underlined by the definition of the expression in subsection (7). What is wanted is knowledge of “such facts about the damage” as would be expected to lead to the institution of a claim against a solvent defendant who had no defence to the claim. This demonstrates that the sub-section (6)(a)“material facts” of which knowledge is needed do not include any facts about the acts or omissions of the defendant that allegedly constitute the negligence.

46. What was the “damage” allegedly caused by Fawcetts' negligence of which the respondents complain? The damage was the investment of the Haward money first in acquiring the Company and its business premises in 1994 and subsequently in trying to bring the Company to profitability. The damage, as I think was common ground, was the making of a bad investment. The measure of the loss depended on the eventual worth of the Company but the damage allegedly caused by Fawcetts' negligence was the making of the investment. Mr Haward plainly had knowledge that the investment of Haward money in 1994 and 1995 had taken place. He knew the exact amount of money that had been invested. But, on the footing that it was indisputable that Fawcetts' advice in respect of the investment had been negligent, at what date did Mr Haward know that the investment was a sufficiently seriously bad one to justify suing them? Mr Haward needs to establish that he did not have this knowledge until after 6 December 1998. This is the sub-section (6)(a) issue.

“In the instant case, by contrast, the plaintiff made the payments and thereby (to its knowledge) incurred the damage. The fact that at the time it did not realise that in making the payments it was suffering damage (in the sense of damage recoverable by legal action) is, as [counsel for the trustees] accepted, nothing to the point for present purposes.”

include paragraphs 87 and 88:

concerned, begin with paragraphs 106 and 107:

B1.4 Haward: causation knowledge and identity knowledge

examined questions about the degree of detail required:

“It was not … the intention of Parliament to require for the purposes of section 11 and section 14 of the [1980] Act proof of knowledge of the terms in which it will be alleged that the act or omission of the defendants constituted negligence or breach of duty. What is required is knowledge of the essence of the act or omission to which the injury is attributable.” (emphasis added)

54. A decision of your Lordships in favour of the respondents, enabling the action to be brought within three years of the discovery by Mr Haward of why it was that the advice he had received from Fawcetts was negligent (if that is what it was), or why it was that

Fawcetts had not given him the advice that he alleges they should have

given, would expand section 14Ato cover cases that had nothing whatever to do with latent damage or losses. It would expose those who give advice on financial matters to potential liability not simply until the expiry of three years after the loss-making consequences of the advice are known but until the expiry of three years after all the reasons why that advice was negligent are known. This, in my opinion, is an unjustifiable extension of the scope of section 14A, substantially altering the balance between claimant and defendant that Parliament has struck.

67. In her article ( p 236) Janet O'Sullivan makes this comment:

“A further problem with the reasoning in Hallam-Eames, as Hoffmann LJ recognised, is that it comes close to saying that which is forbidden by section 14A (9), namely that time does not start to run until the claimant has knowledge that the defendant was negligent.”

It is indeed a striking feature of the line of authority in the Court of

Appeal that (with the modest exception of the reference in HallamEames to cause for complaint) the Court has firmly rejected any language which suggests, even in the least technical terms, that some fault or mishap has occurred: see for instance Sir Thomas Bingham MR in Dobbie v Medway Health Authority[1994] 1 WLR 1234at p1243 C–D, observing that the judge was open to criticism for using, not only the expression “negligence”, but also “unnecessarily” and “something had gone wrong” (the Master of the Rolls nevertheless expressed complete agreement with the judge's conclusion); see also Steyn LJ at p1247H. I respectfully doubt whether the insistence on extremely non-judgmental language is required by section 14A(9), and I think that it may in some cases ignore the realities of the situation. I respectfully agree with the views expressed on this point by my noble and learned friend Lord Nicholls of Birkenhead in paras 13 and 14 of his opinion. But in any event there is a distinction to be made between two matters: (1) the generality or specificity (see Nash v Eli Lilly [1993] 1 WLR 782, 798–799) of the language in which the essence of the claimant's complaint is to be identified and expressed, and (2) the judgmentally colourful or non-judgmentally monochrome character of that language. So long as section 14A(9)is kept well in mind, the level of generality or specificity will often (as in this case) be the more important matter for the Court to address.

knowledge and, as set out by the master in his judgment, will be found in section

A7.4 above. Lord Brown added at paragraph 91:

91. If the other approach is adopted, time only starts to run once the claimant recognises that a fuller examination of the company's prospects should have been carried out than was in fact carried out, knowledge which Mr Haward only learned here at some unascertained date after the investigation into Fawcetts' conduct had itself begun in May 1999 (when another accountant first suggested to Mr Haward that a negligence claim might lie against Fawcetts). But what if that suggestion and the investigation which it prompted had themselves been made at a later date still, perhaps very substantially later? On this approach the limitation period would appear capable of almost limitless extension and for no sufficient reason: unlike the position in Pirelli General Cable Works Ltd v Oscar Faber & Partners [1983] 2 AC 1— the decision which precipitated what is now section 14Aof the 1980 Act-there is nothing latent here about the damage or, indeed, about the identity of the prospective defendant. I recognise, of course, that that does not foreclose the argument on attributability: it provides, however, the relevant context in which it falls to be resolved.

“It has not been suggested to us, and in our view could not reasonably be suggested, that the plaintiff's date of knowledge should arrive until he has knowledge (actual or constructive) both of his injured condition and of its having been caused by an act or omission of the defendant.”

“does not cover lack of knowledge of its [the damage's] causation, or the identity of the person (or persons) liable. By comparison awareness of such matters, which could sometimes be difficult to ascertain in a latent damage context, is specifically included in the definition of knowledge contained in section 14 of the 1980 Act”.

“(3) A plaintiff has the requisite knowledge when she knows enough to make it reasonable for her to begin to investigate whether or not she has a case against the defendant. Another way of putting this is to say that she will have such knowledge if she so firmly believes that her condition is capable of being attributed to an act or omission which she can identify (in broad terms) that she goes to a solicitor to seek advice about making a claim for compensation.

(4) On the other hand she will not have the requisite knowledge if she thinks she knows the acts or omissions she should investigate but in fact is barking up the wrong tree; or if her knowledge of what the defendant did or did not do is so vague or general that she cannot fairly be expected to know what she should investigate; or if her state of mind is such that she thinks her condition is capable of being attributed to the act or omission alleged to constitute negligence, but she is not sure about this, and would need to check with an expert before she could be properly said to know that it was.”

All such formulations seem to me relevant also under s.14A, provided that it is remembered that under subs.(8)(a)the requisite knowledge must be of the attributability in whole or part of the damage suffered to the act or omission alleged to constitute negligence. The passage from HHJ Playford's judgment cited in paragraph 103 above was therefore, in my view, incorrect in law.

113. Turning to the phrase “the act or omission which is alleged to constitute negligence”, the word “constitute” is in my view significant. It indicates that the claimant must know the factual essence of what is subsequently alleged as negligence in the claim. Once such knowledge has been acquired, it is under subs. (9)irrelevant whether or not the claimant knew that the relevant act or omission “did or did not, as a matter of law, involve negligence”. So, there must be knowledge of the act or omission allegedly constituting negligence, but there need not be knowledge that, as a matter of law, such act or omission involved negligence. Whether an act or omission involves negligence is a matter of law for the court, even though a court may of course hear a good deal of evidence (e.g. about accountancy principles and practices) in order to determine it. Evidence of relevant accountancy principles or practices will commonly be deployed on the issue whether, as a matter of law, such act or omission involved negligence. The difficulty is that knowledge of such principles or practices may also in some cases be said to bear on the question whether a person suffering loss would attribute such loss to accountants who had advised or not advised him. 134. Lord Mance added at paragraphs 119 to 121:

Syndicates [2001] Ll.R. 178, 181. The Court of Appeal in HallamEames thus distinguished between, on the one hand, “elaborating the detail by requiring knowledge of precisely how he had come to do the act complained of” (which is irrelevant) and, on the other, knowledge of facts which are “part of the essence of [the] complaint”. An example given of the latter was the fact in Dobbie v. Medway Health Authority[1994] 1 WLR 1234that the breast removed by the surgeon had been healthy. In Hallam-Eames, the essential facts of which knowledge was required were of a reverse character — viz that the run-off policies and reinsurances to close and the certified accounts were in effect unsound (or “unhealthy”). Hoffmann LJ explained:

“… the act or omission of which the plaintiff must have knowledge must be that which is causally relevant for the purposes of an allegation of negligence. There may be many acts, omissions or states which can be said to have a causal connection with a given occurrence, but when we make causal statements in ordinary speech, we select on common sense principles the one which is relevant for our purpose.

…

It is this idea of causal relevance which various judges of this court have tried to express by saying that the plaintiff must know the ‘essence of the act or omission to which the injury is attributable’ (Purchas LJ in Nash v. Eli Lilly[1993] 1 WLR 782, 799) or ‘the essential thrust of the case’ (Sir Thomas Bingham MR in Dobbie …

[1994] 1 WLR 1234, 1238) or that ‘one should look at the way the plaintiff puts his case, distil what he is complaining about and ask whether he had in broad terms knowledge of the facts on which that complaint is based’ (Hoffmann LJ in Broadley[1993] 4 Med LR 328, 332).

…

He [the claimant] must have known the facts which can fairly be described as constituting the negligence of which he complains. …” 121. Hoffmann LJ continued:

“What, on these principles, are the facts which constitute the negligence of which the Names complain? It would in our view be incomplete to say that it was the writing of the run-off reinsurance policies or the RITCs or the certification of the syndicate accounts. These facts in themselves do not amount to acts of which the Names would even prima facie be entitled to complain. It is necessary to add the allegation that the run-off policies and RITCs exposed the Names to potentially huge liabilities and that the certified accounts attributed values to IBNRs [incurred but not reported losses], none of which were in fact capable of reasonable quantification.” 135.Lord Mance continued in paragraph 122:

122. The third element is what is meant by damage being

“attributable” in whole or part to the act or omission allegedly constituting negligence. The authorities establish that the word “attributable” means here “capable of being attributed”, rather than “caused by”: Guidera v. N.E.I. Projects (India) Ltd. (30 January 1990, CA Tr. No. 60 of 1990) per Sir David Croom-Johnson, Nash v. Eli Lilly at pp.797–8, per Purchas LJ and Dobbie v. Medway Health Authority at p.1240, per Sir Thomas Bingham MR. Consistently with the clear wording of the statutory language, the authorities also emphasise thats.14Ais concerned with knowledge in this sense of the attributability of the damage suffered to the act or omission allegedly constituting negligence: see e.g. Halford v. Brookes[1991] 1 WLR 428, 443D per Lord Donaldson MR, Dobbie v. Medway Health Authority[1994] 1 WLR 1234, 1240E–H per Sir Thomas Bingham MR and Spargo v. North Essex District Health Authority[1997] PIQR P235, P242, per Brooke LJ in the passages quoted in paragraph 112 above. This is, of course, of particular relevance in cases where there is another possible cause (cf Irshad Ali v. Courtaulds Textiles Ltd. [1999] Lloyd's Rep. Medical 301), though it must always be remembered that all that s.14Arequires is knowledge that loss is “capable” of being attributed in whole or “in part” to the act or omission alleged to constitute a particular defendant's negligence. It has indeed been held that a claimant may have the requisite knowledge although he faces alternative possible defendants, one or other but not both of whom may be liable (cf Halford v. Brookes[1991] 1 WLR 428, 443G–H).

B2 Issue 1(2): knowledge of “inequitable apportionment” enough?

B2.1 Inapt shorthand: knowledge that things “could and should have been different”

as the “could and should concession”. This is that, in order for Mrs Trainer to have section 14A cumulative knowledge, she must have:

… knowledge that things could and should have been different …

… that Allanton had no contractual right to insist on the varied terms and/or that there was no contractual warrant for the inequitable apportionment;

“knowledge” provisions, that knowledge that any acts or omissions did or did not, as a matter of law, involve negligence is irrelevant: see section B1.2 above.

section A7.4 above), is at first sight surprising. If it were used in the sense that there was a defendant who ought to have done something, there would be a potential inconsistency with the clear statement in section 14A(9) that knowledge of negligence is irrelevant. Similarly, if used in that way, the word “should” seems potentially inconsistent with Lord Brown’s paragraph 90, indicating that it was not

necessary to know that Fawcetts had failed to carry out necessary investigations.

explains Cramer Pelmont’s agreement to the use of the word “should” by citing Lord Brown’s paragraph 88, Lord Nicholls’s paragraph 14, Lord Walker’s paragraphs 61 and 67, and Lord Mance’s paragraphs 116 and 117.

however, is that the word “should” nowhere appears. It is clear from paragraph 88 that Lord Brown adopts the explanation of Dobbie that is given in Hallam-Eames:

Mrs Dobbie would have suffered no damage had her removed breast been unhealthy.

above. Consistently with Lord Brown’s paragraph 88, Lord Nicholls states:

the essence of [Mrs Dobbie’s] case was that she had suffered injury by the removal of a healthy breast, that is, her breast had been removed unnecessarily and something had gone wrong.

“damage” in section 14A must at least connote what a claimant believes to be actionable damage, thus requiring an appreciation of the “real significance” which, at first sight at least, indicates that what has happened gives an entitlement to complain.

where an adviser causes or allows a client to enter into a transaction but the client has no reason to attribute loss suffered in the transaction to the adviser until the client discovers that the transaction was from the outset intrinsically unsound. In this circumstance Lord Mance’s analysis adopted the approach of the Court of Appeal in Hallam-Eames.

the court, rather than any defendant, ought to have done. The context concerns HF Pensions Trustees Ltd, where an impermissible transfer was made. In this context, for there to be causation knowledge, the claimant would need to know that the transfer was impermissible. Lord Mance added that this was “possibly” also something which a claimant needed to know for material facts knowledge, as Lord Walker had suggested.

B2.2 More shorthand: “inequitable apportionment”

“the inequitable apportionment”, however, calls for explanation.

could have obtained a better outcome.

renegotiation. If so, she says that (at best) she would have received her half share of the Wildwood Lodge contractual purchase price. At worst, she says that she might have agreed to some reduction in the overall amount paid by Allanton, but even so the overall amount paid by Allanton would have been greater than was paid by Allanton in the event.

is that, whatever the amount paid by Allanton, if properly advised she could have negotiated with Mr Trainer to obtain a 50/50 split, or at least a better split than in the event she received. The parties have described this as Mrs Trainer’s “inequitable apportionment” claim. That wording is shorthand for Mrs Trainer’s case that, on the one hand, she was told by Mr Trainer that he was getting much the same as her by way of a small payment on completion with a possibility that he would get more, only because he was prepared not to insist on payment of his entire share upon completion, if and when the development was completed successfully, while on the other hand, under the arrangements Mr Trainer in fact made with Allanton, he received on completion £400,000 rather than Mrs Trainer’s £300,000, very substantial sums by way of deferred consideration, and undisclosed payments of £50,000 and £12,500.

when entering into the new arrangements, had believed would be his, then that would inevitably have caused her intense concern. As I understand it, the parties when formulating issue 1(2) have used “the inequitable apportionment” to refer to

the postulated knowledge by Mrs Trainer of an apportionment “much more advantageous” to Mr Trainer than she had believed would be his.

B2.3 Material facts knowledge and inequitable apportionment

judgment (see section A7.4 above), made no distinct ruling relevant to the present issue. This is not surprising: it is only on this appeal that the present issue has been formulated with any degree of precision. What the master indicated at paragraph 57 was that he suspected that Mrs Trainer had material facts knowledge at a comparatively early stage. After making observations in relation to this suspicion, he went on at paragraph 58 onwards to deal with causation and identity knowledge.

constitute material facts knowledge because of the cumulative effect of a series of pre-requisites. I can summarise them in this way:

at least a reasonable argument that Mrs Trainer had material facts knowledge once she had knowledge of the inequitable apportionment. Certainty is not required. Nor is knowledge of negligence. The substantial difference between what Mr Trainer had told her, and what the inequitable apportionment involved, makes it at least arguable that on learning of the inequitable apportionment Mrs Trainer would have sufficient knowledge that something must have gone wrong.

B3 Issue 1(3)(a): pre-damage imputed knowledge

knowledge. Mrs Trainer advances a proposition that a defendant cannot, in order to deny a claimant the protection of section 14A, rely upon constructive knowledge (as opposed to actual knowledge) of “damage” or “attributability” before “damage” has been sustained and the cause of action is complete. Mrs Trainer acknowledges that there is no authority for the proposition, but submits that it is self-evident because it follows necessarily from the purpose, wording and structure of section 14A.

only be engaged in a case where the cause of action in negligence is complete. That is undoubtedly true: see the express words of section 14A(1) and the observations of the Court of Appeal in Hamlim at page 422.

have suffered latent damage. It could not, she submitted, be right that carelessness prior to damage should deprive a claimant of that benefit.

precisely how section 14A strikes a balance between on the one hand assisting those affected by damage they were actually unaware of, and on the other hand limiting that assistance where a claimant might reasonably have been expected to gain section 14A cumulative knowledge. In that regard section 14A does not say that knowledge of damage in itself is a barrier to benefiting from section 14A: the benefit provided by section 14A will only cease to assist a claimant at a stage when the claimant not only has material facts knowledge, but also has both causation knowledge and identity knowledge. This may be thought to undermine Mrs Trainer’s further proposition described above.

is whether the claimant had that knowledge on the date on which the cause of action accrued. Such knowledge might well be derived from things that were known before the cause of action accrued. If that is the case for actual knowledge, then it is arguable that it should similarly be the case for constructive knowledge. As to the overlap with contributory negligence, it does not seem to me that this necessarily prevents the two concepts from being distinct.

weighed the balance may lie in favour of permitting reliance by a defendant, for the purposes of section 14A(10), upon facts observable or ascertainable before the cause of action accrued.

B4 Issue 1(3)(b): trail of inquiry

it concerns an aspect of section 14A(10) on which there is a potentially relevant Court of Appeal decision.

19 the facts are conveniently summarised in the headnote at page 319 of the Professional Negligence Law Reports:

In 1982 the claimant inherited a property in Bournemouth in which she went to live with her husband who traded as a tour operator. His business was financially supported by limited guarantees given by the claimant and secured on the property. In early 1988 the claimant and her husband decided to pay off the existing business overdraft and raise some working capital by mortgaging the property to the Wessex Building Society. The defendant firm of solicitors was retained to convey the mortgage and in March 1988 the claimant and her husband attended the defendant's offices to enter into a deed of gift transferring the property into their joint names to hold on trust for both of them and to execute the mortgage. Between November 1988 and October 1990 the property became further encumbered by charges in favour of the bankers and creditors of the business, and in October 1993 a possession order was obtained by Lloyds Bank suspended on terms as to regular payments. In 1996 the claimant unsuccessfully sought legal aid to bring a claim against the bank believing that she had been tricked into entering charges in its favour in September and November 1988 without properly having understood them, and wrote to the bank's solicitors making a complaint to that effect in December of that year. The claimant attended her local Citizens Advice Bureau in April, 1999 and instructed solicitors to act on her behalf in May, 1999. In January, 2001 having examined the defendant's file, her solicitors advised the claimant that there had been no requirement by the Wessex Building Society that she transfer the property into joint names. In May, 2002 proceedings were issued alleging the defendant was negligent in failing to ascertain this information and to advise the claimant that no benefit would accrue to her by entering into the deed of gift, and that the property would be exposed to her husband's creditors. At trial the claim was dismissed on the issue of limitation. The judge held that although the claimant did not have actual knowledge of the fact that the defendant's advice had been wrong until 2001, a reasonably competent solicitor or financial adviser, upon being fully informed of the events of February and March 1988, would have had little *320 difficulty in concluding the advice provided to the claimant by the defendant had been wrong and arguably negligent, and that such conclusion could reasonably have been reached even without the defendant's file; that pursuant to s.14A of the Limitation Act 1980the claimant might reasonably have been expected to seek and obtain expert advice on the matter no later than the end of 1996 and the date of her constructive knowledge was substantially more than three years prior to the date of issue of her claim.

Trainer.

Trainer suggests. In that regard Mrs Trainer focussed on the words “the relevant damage”. It was submitted, plainly rightly, that “the relevant damage” in subsection (5) was damage relevant to the cause of action against Cramer Pelmont: see Hamlin and H v Northampton County Council [2004] EWCA Civ 526, [2005] PIQR P7. In Gravgaard there was an overlap between the damage which was the subject of the complaint against Lloyds and the damage which was the subject of the claim against the defendant. It was for that reason that Mrs Trainer accepted that a trail of enquiry beginning with Downs and ending with Cramer Pelmont could fall within section 14A(10), as there was a similar overlap in the present case in that regard. However, submitted Mrs Trainer, there was no sufficient overlap as would permit Cramer

Pelmont to rely upon a trail of enquiry which began with a complaint against Mr Trainer.

mere fact that it may be open to Mrs Trainer to run the argument in the present case does not mean that the argument is bound to succeed.

C. Inferences and conclusions drawn by the master

C1 Inferences/conclusions on material facts knowledge

issues 2(1) and (2): see section A8.8 above. In the light of my conclusions in section B above I can deal with these matters relatively briefly. As noted in section B2 above, these were matters which the master did not need to analyse, and did not analyse, in any detail.

present case, denying that she read either of these documents, and submits that there is no evidence that she did. It seems to me that this, at least arguably, takes too limited an approach to what is needed. As Cramer Pelmont observes, Mrs Trainer is an experienced property developer. There is, to say the least, a real possibility that she became aware of the inequitable apportionment by reading either or both of the Deed of Variation and Terms of Contract. It was urged on her behalf that there might have been a reasonable explanation for Mr Trainer receiving £400,000 on completion as opposed to Mrs Trainer’s £300,000. That submission, however,

misses the point: such a substantial disparity from what she had been told would, at least arguably, make her aware that a better outcome, from her point of view, was possible and that something had gone wrong. I recognise that Mrs Trainer has given evidence of personal difficulties which were affecting her at the relevant time. A question may arise as to whether those personal difficulties were such as to lead her not to do things which she might otherwise have been expected to do. That question, however, is pre-eminently, a question to be decided after a trial at which her evidence has been tested.

there is no evidence that she saw the relevant letter. As to this, however, the master observed in paragraph 57 of his judgment that Mr Trainer seems to have been prepared to risk Mrs Trainer finding out, in the course of the Ebgui litigation, things which had been kept secret earlier. A question may arise whether as part of the Ebgui litigation Mr Trainer passed on the relevant letter to Mrs Trainer, or in some other way informed her of the secret payments. This, too, seems to me to be preeminently a matter for trial.

knowledge. The first of these is at sub-paragraph (a) of issue 2(2). This does no more than mirror the questions which arose under sub-paragraph (b) of issue 2(1). For the reasons given above when dealing with that sub-paragraph, there is a reasonable argument open to Cramer Pelmont in this regard which calls for trial.

contractually insist on the renegotiated terms, and lack of knowledge that there was “no contractual warrant” for the inequitable apportionment. For the reasons given in section B2 above neither of these assertions prevents Cramer Pelmont from having a reasonable argument on material facts knowledge.

C2 Inferences/conclusions: causation and identity knowledge

in issues 2(3) and 2(4), are set out in section A8.9 above. Here, as in section C1 above, I can take matters relatively briefly in the light of the conclusions set out earlier in the present judgment.

issue was attributable in whole or in part to the acts or omissions of Cramer Pelmont.

In circumstances where Mrs Trainer knew that Cramer Pelmont was involved “in the matrimonial side of things”, in circumstances where Mrs Trainer knew that she had sent the 15 September 2011 email to Downs stating that she was taking advice on all commercial matters from Cramer Pelmont, and in circumstances where Cramer Pelmont had said in Mr Charnley’s 7 October 2011 “To whom it may concern” document that he had explained to Mrs Trainer the terms and implications of the proposed Deed of Variation, it seems to me that the question of Mrs Trainer’s actual knowledge gives rise to arguments which may reasonably be advanced on Cramer Pelmont’s behalf and properly fall for determination at trial.

September 2017 letter was “altogether inconsistent” with Mrs Trainer “then having knowledge” that Cramer Pelmont was a defendant against whom a claim for relevant damage could be brought. As to actual knowledge, however, the material question is not what view Sears Tooth had formed in late 2017. I accept that the letter written by Sears Tooth on 15 September 2017 is a pointer against Mrs Trainer having actual knowledge, so far as relevant for present purposes, at that time. But it does not rule out the possibility that Mrs Trainer had relevant actual knowledge earlier, and this is, to my mind, a matter meriting trial.

have been expected to acquire and which would give rise to causation knowledge and identity knowledge. As to how long would be needed for this purpose, each side sought to make points by reference to the time that had been required in 2017. While evidence as to what occurred in 2017 may have relevance, it does not seem to me that it can be determinative one way or the other: the matter calls for a trial at which the position at earlier stages is examined.

those before the master, I conclude that issues 2(3) and (4) must be decided in favour of Cramer Pelmont.

D. Other issues

Trainer’s bankruptcy. This issue only arises if Mrs Trainer had not, prior to her bankruptcy, acquired, as regards her claim against Cramer Pelmont, section 14A cumulative knowledge. For the reasons given earlier in this judgment, however, I have concluded that Cramer Pelmont have reasonable arguments which, if right, would have the consequence that Mrs Trainer had acquired section 14A cumulative knowledge prior to her bankruptcy. That being so, this issue does not arise. It involves novel arguments in an area of developing law, and I consider that if it were to arise it is best dealt with at a full trial.

master described as “disappointing” events: see section A6.2 above. For the reasons given earlier in this judgment, however, it is not necessary for me to examine those events in order to reach the conclusion that Cramer Pelmont has reasonable arguments meriting trial. The evidence concerning those events may be highly relevant at that trial, and I consider it to be undesirable for me to seek to analyse that evidence at the present stage.

E. Conclusion

189. For the reasons given above I conclude that this appeal must be allowed. I ask the

parties to seek to agree consequential orders.