Know Your Limits: The Accrual Of A Cause Of Action In Tort

In Berney v Saul (t/a Thomas Saul & Co (Solicitors)) [2013] EWCA Civ 640, the Court of Appeal had to determine when the claimant's cause of action against the defendant solicitor arose in order to ascertain when the six year limitation period for a negligence claim commenced. For the cause of action to crystallise in tort, the potential claimant must suffer "damage". The question of what constitutes "damage" in negligence cases has often vexed the courts and in this case, whilst the two Court of Appeal judges who gave reasoned judgments broadly agreed on the legal test, they disagreed on its application: despite the agreed facts, they did not agree when the limitation period commenced.

The claimant (Ms Berney) brought proceedings against the defendant, her former solicitor, alleging that she had settled a previous personal injury claim at an undervalue because of the solicitor's failure to serve Particulars of Claim for her personal injury claim in time (together with other delays in obtaining medical evidence). She asserted that the settlement sum was lower than she would have obtained if the claim had gone to trial or been settled without the additional hurdle of the need to apply to serve her Particulars of Claim out of time. Counsel had advised that she had a negligible chance of succeeding in such an application. The question was when she had suffered damage. The crucial dates were:

11 August 2002, the last date for service of the Particulars of Claim in the personal injury action in accordance with the Civil Procedure Rules; 10 January 2005, the date six years before Ms Berney issued her negligence claim against her solicitor, on 10 January 2011. If damage occurred before 10 January 2005, then Ms Berney's claim would have been time-barred; 25 January 2005, when the solicitors defending the personal injury claim withdrew their assurance that they would take no point on the late service of the Particulars of Claim; and 1 November 2005, the date on which Ms Berney settled her personal injury claim. District Judge Liston had dismissed the claim, partially on the basis that it was time-barred. On appeal to the High Court, HHJ Simpkiss agreed that the claim was time-barred "long before" 1 January 2005 because there had been a "measurable loss by reference to the diminution in the value of the [personal injury] claim" before then, though he did not say exactly when or on what basis that diminution occurred.

Lady Justice Gloster, giving the...