Tort and Time Bars - Suing by Stop Watch

Even the laziest law student knows that the ingredients of a tort claim for professional negligence are duty, breach and damage. Time starts to run once all 3 elements are present. In Malik Khan -v- RM Falvey & Co, the Court of Appeal reminded the legal profession of these basic principles in a professional negligence claim where several debt recovery actions were struck out for want of prosecution.

Until Khan, the assumption was that time runs from the date the court strikes out the negligent litigation, and not before, if suing a solicitor who allows litigation to be struck out. This was thought to be so even if the case had been dead on its feet for years before the court put it out of its misery with a strike-out order. It was certainly a convenient assumption in that it provided a clear and easily identifiable trigger date for limitation purposes, and made quantification of the loss easier as it was performed with hindsight. This assumption cannot survive after Khan.

On 2 June 1999, Malik Khan issued proceedings alleging his solicitor had conducted debt recovery actions negligently from 1987 until 1999 : the actions were struck out between 1997 and January 1999. The Claimant did not instruct the Defendant firm continuously from 1987 onwards: he would occasionally handle the litigation himself, re-instructing the Defendant when matters became complex, on at least one occasion a few days before a Court hearing; he also instructed other firms to handle the same actions on similar terms. Every solicitor knows this can be a recipe for disaster. Despite the Defendant's best efforts (negligence was denied), disaster befell.

The Claimant pleaded (a) that judgments should have been obtained in the three debt recovery actions by 1987, 1988 and an unspecified date; (b) that two actions were vulnerable to strike-out from 1990 and 1992 respectively - the vulnerability of the third was not specified; and (c) that the l suffered was wasted litigation costs paid in the 1980s and early 1990s and loss of the chance to recover the debts themselves by 1988, 1989 and an unspecified date. (The third case was not pleaded clearly and the Court of Appeal's attempts to elicit a more detailed set of facts during the appeal hearing were unsuccessful. In the end, the Court of Appeal took the view it was statute barred on the facts pleaded.)

The Claimant's Leading Counsel relied on Hopkins v McKenzie [1995] PIQR43(CA), a loss of opportunity personal injury action against a doctor. Hopkins was a very narrowly pleaded case, claiming only for the loss of the chance to pursue the original action. There was...