Professionals, Continuing Duty And Limitation

Published date06 July 2021
Subject MatterCorporate/Commercial Law, Insurance, Litigation, Mediation & Arbitration, Contracts and Commercial Law, Insurance Laws and Products, Trials & Appeals & Compensation, Professional Negligence
Law FirmMills & Reeve
AuthorMs Miranda Whiteley

Does a professional such as a solicitor, architect or pensions adviser have a duty to revisit their work and to correct a mistake they've made earlier? This is an important question for any professional and can be particularly significant when a client alleges that work done many years ago was negligent.

The general rule is that there is no continuing contractual duty on professionals to review their work unless the client chooses to request and pay for that service. To take the example of a solicitor working on standard forms of contract for a client, the constant reviewing of earlier advice for an indefinite period could place an intolerable burden on them/their firm and the costs of doing so might be extensive.

There are some exceptions to this rule and claimants may try to rely on one where their claim against a professional would otherwise be time-barred. Statutory limitation periods exist to protect professionals and others from being vexed by stale claims and to ensure that claims come before the court when the relevant evidence is still available.

In this article, we explore the circumstances in which a continuing duty may exist and review some recent limitation decisions.

Limitation periods in claims against professionals

Someone claiming against a professional will be able to bring a claim in both tort and contract. The limitation period under the Limitation Act 1980 for both will be six years, but the starting point for that period works differently for each type of claim. This makes little difference in practice, as can be seen below, because public policy not only encourages prompt claims but it also requires the courts to reduce disparity between the parallel causes of action in tort and contract (Maharaj v Johnson).

Claims in tort

The six year period for a claim in negligence (tort) begins to run from the date the claimant suffers damage. This will generally be when the negligent act or omission occurs, for example, executing a defective document or failing to put a guarantee in place. Depending on the facts giving rise to the claim, this may be described as the "flawed transaction", "package of rights" or "damaged asset" rule. It is irrelevant that, at the date of the transaction, the extent of the claimant's financial loss is unknown or may in fact never occur.

The flawed transaction rule was recently upheld by the Court of Appeal in Elliott v Hattens. The court rejected (as it has done repeatedly) the claimant's attempt to rely on the...

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