Restarting The Clock: The Accrual Of Fresh Causes Of Action In Professional Negligence Claims

• Published date: 19 August 2021
• Subject Matter: Litigation, Mediation & Arbitration, Insolvency/Bankruptcy/Re-structuring, Insolvency/Bankruptcy, Trials & Appeals & Compensation, Professional Negligence
• Law Firm: Gatehouse Chambers
• Author: Mr Tom Bell

Introduction

In Sciortino v Beaumont [2021] EWCA Civ 786, the Court of Appeal had to decide whether, in circumstances where a defendant professional gives 'the same' negligent advice on two separate occasions, the claimant has one cause of action or two. The reason, unsurprisingly, why this was important, is limitation: the initial advice was given more than six years before the claim was issued, but the later advice was 'in time', so to speak. If, therefore, there was just one cause of action, then limitation would provide a complete defence. But if there were two causes of action, then even though limitation barred the first claim, a claim could still be brought in respect of the second.

The facts

Events started back in 2010, when the claimant was bankrupt. The trustee in bankruptcy wanted to realise the value of the claimant's house, and so applied for an order for possession and sale. A hearing of the trustee's application was duly listed, but in the meantime the trustee agreed to allow the bankrupt time to see if he could pay his creditors without the need to for his house to be sold, and so the trustee's solicitors wrote to the court asking for the hearing to be vacated. Unfortunately, that letter did not make its way to the court file, the hearing went ahead in the parties' absence, and the district judge ordered the application to be dismissed.

Following correspondence from the trustee's solicitors, in which they alerted the court to their earlier letter, the district judge made a further order setting aside his earlier order dismissing the trustee's application and (retrospectively) vacating the earlier hearing.

In the event, discussions between the trustee and the claimant led to nothing, and in March 2011 an order was made for possession and sale.

The claimant sought advice from a local law centre about a possible appeal, and the law centre in turn instructed the defendant barrister. His advice, given in conference on 20 April 2011, was that the claimant had reasonable prospects of success on appeal by virtue of an argument under section 283A(4) of the Insolvency Act 1986. This section provides that if a trustee in bankruptcy applies for an order for possession or sale of the bankrupt's former home, but the court dismisses the application, then the interest in the property will automatically revest in the bankrupt. In the defendant's view, there was a good argument that once that happened - that is, once the interest in the property revested in...