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Y6. Time limits

Contract: basic time limit is 6 years from cause of action accrual

 

"An action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued." (Limitation Act 1980, s.5)

Contract: basic time limit is 6 years from cause of action accrual

Tort: basic time limit is 6 years from cause of action accrual

 

"An action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued." (Limitation Act 1980, s.2)

Tort: basic time limit is 6 years from cause of action accrual

- Cause of action accrues upon entering into transaction that did not, in law, give rise to expected tax benefit

"[371] The claimants contend that no cause of action accrued until HMRC refused their claims for loss relief because, until that point, they were no worse off than had they not entered the Schemes. That means, they contend, that until that point any loss was purely contingent, as in Law Society v Sephton [2006] 2 AC 543, and Evan v PricewaterhouseCoopers LLP [2019] EWHC 1505 (Ch). In relation to SAD1, that state of affairs persisted until 2016 when HRMC issued a closure notice or – in the case of those claimants in respect of whom a discovery assessment was made – the date such assessment was made in December 2009.

[...]

[376] Whether the Scheme achieved the Tax Benefits is a question of law. In fact, that is a question which has so far not been answered, and neither party requires me to answer it in this judgment. The claimants' case proceeds on the assumption that the answer is that it did not entitle them to the Tax Benefits, so that they were justified in reaching a settlement with HMRC which involved them repaying most of the Tax Benefits and interest. Accordingly, on that assumption the claimants irrevocably committed capital to a Scheme in 2003 which as a matter of law did not entitle them to the Tax Benefits.
[377] In my judgment, the correct analysis is that the claimants therefore suffered damage upon making the investment at the time they entered into the Scheme. That was actual, not contingent, damage because they entered into a transaction which did not, as a matter of law, give rise to an entitlement to receive the Tax Benefits which Mr Thornhill advised they would get." ​(McClean v. Thornhill [2022] EWHC 457 (Ch), Zacaroli J)

"[227] It seems to me that it was the point at which the claimants entered into the planning that they suffered damage. When they contracted to purchase the shares, they suffered damage, not because the shares were then worth less than the claimants paid for them, but because the purchase of the shares would not give the claimants the result that the defendants had assured the claimants would result i.e. the tax relief. It was not inevitable at that point that they would be denied the tax relief and they may have been financially better off as a result of being exposed to the risk, but it was at that point that they were tied into the "commercial straitjacket". If I am wrong on that, then it seems to me that the claimants suffered damage at the latest when the claimants gifted the shares: at that point the "defect", in the form of the advice to enter into the transaction and with an assurance that it would succeed in obtaining tax relief, was incapable of cure; they had given away the assets and suffered actual damage. Further, if and to the extent when the claimants contracted to purchase the shares in a particular shell, they had not decided whether or not to participate in the gift aid scheme, then in my view the claimants suffered damage at the point when they gifted the shares since at that point they were tied into the scheme." (Halsall v. Champion Consulting Limited [2017] EWHC 1079 (QB), HHJ Moulder)

Not altered by the fact that Cs initially got the tax benefit

"[378] It is true that they did in fact initially receive the anticipated Tax Benefits, and held on to them for approximately 14 years before being required to repay most of them. That, however, does not alter the fact that the transaction they entered into was one which was intrinsically less valuable to them than if they had not invested at all." (McClean v. Thornhill [2022] EWHC 457 (Ch), Zacaroli J)

- Cause of action accrues upon entering into transaction that did not, in law, give rise to expected tax benefit

- Damage does not depend on HMRC decision to investigate

 

"[381] The claimants accept that the conclusion in Integral Memory is correct, but contend that HHJ Moulder was wrong to rely on it in support of the conclusion that damage was suffered when the claimants were tied into the scheme. That is because, the claimants contend, HMRC might or might not decide to investigate, and unless they issued a closure notice or a discovery assessment, then there could be no debt to the Crown. I reject that contention. There is no relevant distinction in my judgment between a decision by HMRC whether to investigate, a decision by HMRC to issue a closure notice or discovery assessment, and a decision by a tribunal upon an appeal made to it against a decision of HMRC. The provisions of the TMA on which the claimants rely are about the timing of payment obligations and not about whether there exists a liability to pay (or repay) tax." (McClean v. Thornhill [2022] EWHC 457 (Ch), Zacaroli J)

- Damage does not depend on HMRC decision to investigate

- Liability to HMRC is not contingent pending Tribunal decision

 

"[31] Mr Khan submitted that, until the settlement was reached in October 2009, the liability of the Claimant to HMRC was purely contingent. He referred to Re Sutherland deceased, Winter v IRV [1963] AC 235 where the concept of a contingent liability was considered and sought to draw an analogy on the facts with the various formulations of the meaning of a contingent liability in that case (see paragraphs 42 to 44 of his skeleton argument). Building on that argument, he then referred to Law Society v Sephton [2006] 2 AC 543, 554, where it was held "the possibility of an obligation to pay money in the future is not in itself damage"; and to Axa Insurance v Akther & Darby Solicitors [2009] 2 CLC 793, where Arden LJ said at 809: "the assumption of a pure contingent liability does not cause the limitation period to start to run... the concept on which all members of the House agreed was that there had to be measurable loss before time began to be run, that is to say, loss which is additional to the incurring of a purely contingent liability... a pure contingent liability is not damage".

[32] However, the argument in my view breaks down on the premise which it is based. The Claimant's liability to pay interest on the unpaid NIC to HMRC was in no relevant sense contingent. A contingent liability is a liability which, by reason of something done by the person bound, may or may not arise depending on the happening of a future event (see Re Sutherland deceased). A classic example of a contingent liability is potential liability under a policy of insurance, which will only occur if an (insured) event occurs. That was not the position in the present case. There was either an actual liability to pay NIC and interest on arrears or there was not. The existence of such liability is not contingent on HMRC succeeding or failing in a tax tribunal (or a court) as submitted by Mr Khan. All the tribunal or court is deciding is whether or not there is an actual liability. Likewise a settlement of such litigation (at least in this case) for the reasons I have given is premised on there being such actual liability. The fallacy of Mr Khan's argument is demonstrated by his submission that where a debt is incurred but disputed, and court proceedings follow, the liability is contingent until the court gives judgment in favour of the creditor (or there is a settlement). That submission is clearly wrong." (Integral Memory plc v. Haines Watts [2012] EWHC 342 (Ch), Richard Sheldon QC)

- Liability to HMRC is not contingent pending Tribunal decision

- HMRC power to waive or remit does not prevent there being an actual liability

 

"[33] Mr Khan also relied on the power of HMRC to waive or remit interest (it would seem that remission of interest was the subject of an extra statutory concession which was published by HMRC: see HMRC letter dated 3 June 2004, p 2). Mr Khan sought, by analogy with Day v Haine [2008] IRLR 642, to argue that the existence of such discretion on the part of HMRC also showed that the liability to pay interest was contingent until the settlement was reached, in the sense that liability depended on the exercise of such discretion. But there is a clear distinction between the exercise of a discretion which creates a liability (as discussed in Day v Haine) and the exercise of a discretion which could mitigate or reduce an existing liability. It is clear to me that the present case falls within the latter category: the existence of HMRC's power to waive or remit interest does not prevent there being an actual liability – indeed the power if exercised would only go towards reducing what is an actual liability to pay interest." (Integral Memory plc v. Haines Watts [2012] EWHC 342 (Ch), Richard Sheldon QC)

- HMRC power to waive or remit does not prevent there being an actual liability

- Tax charge depending on agreement of two tax authorities

 

"[53] In the present case there was no difficulty of quantification once the tax liability became a reality; at that point tax was payable at a known rate on a known gain. But nothing was payable until the CRA and HMRC reached their agreement in 2013, and (on the Claimants' case) they might have made a different agreement. Once they reached it, then indeed the tax was inevitable, and so I am unimpressed by the technical point, stressed by Mr Jones QC, that nothing was payable until the closure notice itself was issued. Once the CRA sent its letter in 2013 then tax was going to be payable; that was a reality not a risk." (Evans v. PWC LLP [2019] EWHC 1505 (Ch), Judge Elizabeth Cooke)

- Tax charge depending on agreement of two tax authorities

- Distinction between wrong transaction and no transaction cases

 

"[44]...But his substantive argument is that this is not a case of purely contingent loss. He agrees that a pure contingency without more is not normally actionable damage, but points out that a contingency together with some other change in position or in legal rights will constitute actionable damage. In a number of cases Sephton has been distinguished on that basis.
[45] A useful distinction found in those decisions is between the "no transaction cases" (where the Claimant would not have entered into a transaction at all but for the advice), the "wrong transaction" cases (self-explanatory), and the "other" cases which did not involve advice leading to a transaction, of which Sephton itself is an obvious example. In the "wrong transaction" cases – like this one – the courts tend to find immediate damage on entry into the transaction, because the claimant has the wrong package. An asset is bought that does not match what was wanted, or the claimant has lost commercial flexibility or changed their legal position.

...

[49] I have to decide whether the Claimants have an arguable case that this was a potential loss, a pure risk, and analogous with Sephton, rather than a case where they entered the wrong transaction, got the wrong deal, changed their position and suffered an immediate loss even though the full extent of that loss was not clear until later." (Evans v. PWC LLP [2019] EWHC 1505 (Ch), Judge Elizabeth Cooke)

- Distinction between wrong transaction and no transaction cases

Failing to correct earlier advice not a fresh cause of action or causative

 

"[23] But I cannot agree that Mr Le Cras's continuing failure after 30th April 2004 to remedy his previous acts of negligence constituted a fresh cause of action accruing day by day entitling QEF and the Trustees to sue CHBC. Nor, therefore, can I agree that continuing negligence was a cause of the loss suffered by Capita or CHBC, which operated concurrently with the undoubted causative negligence which occurred before the Transfer Date. A failure to correct previous acts of negligence is not, to my mind, concurrently causative of losses caused by the original acts of negligence." (Capita (Banstead 2011) Ltd v RFIB Group [2015] EWCA Civ 1310, per Longmore LJ)

"[389] In the alternative, the claimants plead in paragraph 69 of the Particulars of Claim that the occasion on which Mr Thornhill wrote the letter of 18 July 2003 was one on which he could have, but failed to, correct his earlier advice. It is, however, clearly established that a continuing failure to correct earlier advice neither constitutes a fresh cause of action accruing day by day, nor is concurrently causative of losses caused by the original acts of negligence: Capita (Banstead 2011) Ltd v RFIB Group [2015] EWCA Civ 1310, per Longmore LJ at [23], and Henderson LJ at [45].(McClean v. Thornhill [2022] EWHC 457 (Ch), Zacaroli J)

Failing to correct earlier advice not a fresh cause of action or causative

Tort: extended time limit where relevant facts not known 

 

"(1)  This section applies to any action for damages for negligence, other than one to which section 11 of this Act applies, where the starting date for reckoning the period of limitation under subsection (4)(b) below falls after the date on which the cause of action accrued.

(2)  Section 2 of this Act shall not apply to an action to which this section applies.

(3)  An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) below.

(4)  That period is either—

(a)  six years from the date on which the cause of action accrued; or

(b)  three years from the starting date as defined by subsection (5) below, if that period expires later than the period mentioned in paragraph (a) above." (Limitation Act 1980, s.14A(1) - (4))

 

Starting date for reckoning period: when C had knowledge required for bring action

"(5)  For the purposes of this section, the starting date for reckoning the period of limitation under subsection (4)(b) above is the earliest date on which the plaintiff or any person in whom the cause of action was vested before him first had both the knowledge required for bringing an action for damages in respect of the relevant damage and a right to bring such an action." (Limitation Act 1980, s.14A(5))

 

Knowledge required for bringing action

"(6)  In subsection (5) above “the knowledge required for bringing an action for damages in respect of the relevant damage” means knowledge both—

(a)  of the material facts about the damage in respect of which damages are claimed; and

(b)  of the other facts relevant to the current action mentioned in subsection (8) below." (Limitation Act 1980, s.14A(6))

 

Material facts about the damage

"(7)  For the purposes of subsection (6)(a) above, the material facts about the damage are such facts about the damage as would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment." (Limitation Act 1980, s.14A(7))

Other relevant facts

"(8)  The other facts referred to in subsection (6)(b) above are—

(a)  that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence; and

(b)  the identity of the defendant; and

(c)  if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant." (Limitation Act 1980, s.14A(8))

 

Knowledge of whether acts or omissions did/did not in law involve negligence irrelevant

 

"(9)  Knowledge that any acts or omissions did or did not, as a matter of law, involve negligence is irrelevant for the purposes of subsection (5) above." (Limitation Act 1980, s.14A(9))

 

Tort: extended time limit where relevant facts not known 

- Burden of proof on C once raised by D

 

"[404] The approach to this section, as developed in case law since its introduction in 1986, was helpfully summarised by Nugee J in Cole v Scion Ltd [2020] EWHC 1022 (Ch), at [6], from which the following is of particular relevance in this case:
(1) The burden of proof under s. 14A is on the claimant to establish that he brought his claim in time. It is incumbent on the defendant, as with all limitation defences, to raise the issue by pleading it, but once it has been raised, it is for the claimant to prove that he first had the requisite knowledge 3 years or less before the proceedings were brought." 
(McClean v. Thornhill [2022] EWHC 457 (Ch), Zacaroli J)

- Burden of proof on C once raised by D

Knowledge includes facts C ought to know

 

"(10)  For the purposes of this section a person’s knowledge includes knowledge which he might reasonably have been expected to acquire—

(a)  from facts observable or ascertainable by him; or

(b)  from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek;

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." (Limitation Act 1980, s.14A(10))

- Knowledge includes facts C ought to know

- Reasonable person expected to read his correspondence

 

"[404]...(5) For the purposes of constructive knowledge, the test is an objective one, based on what a reasonable person with the general characteristics of the claimant would have done (as opposed to the particular characteristics of the actual claimant).

(6) In this context, a reasonable person is expected to read his correspondence." (McClean v. Thornhill [2022] EWHC 457 (Ch), Zacaroli J)

Level of certainty required: knowing with sufficient confident to justify embarking on preliminaries to starting a claim

 

"[9] Thus, as to the degree of certainty required, Lord Donaldson of Lymington MR gave valuable guidance in Halford v Brookes [1991] 1 WLR 428, 443. He noted that knowledge does not mean knowing for certain and beyond possibility of contradiction. It means knowing with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking advice, and collecting evidence: "Suspicion, particularly if it is vague and unsupported, will indeed not be enough, but reasonable belief will normally suffice." In other words, the claimant must know enough for it to be reasonable to begin to investigate further." (Haward v. Fawcetts [2006] UKHL 9, Lord Nicholls)

"[404]...(2) "Knowledge" does not require knowing with certainty, but it requires more than suspicion: "It means knowing with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking advice, and collecting evidence"; Haward v Fawcetts [2006] 1 WLR 682, per Lord Nicholls at [8]-[10]." (McClean v. Thornhill [2022] EWHC 457 (Ch), Zacaroli J)

"As set out above, the authorities are clear that knowledge does not mean knowing for certain, the claimant must know enough for it to be reasonable to begin to investigate further. Further the damage is not, as counsel submitted, a failure to achieve "substantial" tax mitigation but the failure to deliver an effective scheme. Finally the test is not whether the claimants relied on the continuing assurances of Mr Dallimore but "whether they knew enough for it to be reasonable to begin to investigate further." The judgment of Lord Wilson in AB v Ministry of Defence does not assist the claimants. Lord Wilson quoted with approval Lord Donaldson in Halford v Brookes and confirmed that the test was whether the belief was held "with sufficient confidence to justify embarking on the preliminaries to the issue of a writ…" the focus being upon "the moment when it is reasonable for the claimant to embark on such an investigation". He noted that it was possible that the claimant will take legal advice before his belief is held with sufficient confidence but the date upon which the claimant first consulted an expert is not on its own likely to assist the court in determining whether by then he had the requisite knowledge." (Halsall v. Champion Consulting Limited [2017] EWHC 1079 (QB), HHJ Moulder)

Level of certainty required: knowing with sufficient confident to justify embarking on preliminaries to starting a claim

- Complaining about soundness of advice may indicate sufficient knowledge

 

"[58] It seems to me clear from the correspondence that the Claimant considered from 2003 onwards that it had cause to complain of unsoundness in the initial and ongoing advice given (or not given) by the Defendant about the viability of the Scheme. I find that the Claimant knew "with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking advice and collecting evidence" or "knew enough for it to be reasonable to investigate further" (per Lord Nicholls in Haward v Fawcetts). Or in the words of Lord Brown in that case, the Claimant knew "that there was a real possibility of his damage having been caused by some flaw or inadequacy" in the Defendant's advice. Similarly I consider it clear that the Claimant's state of mind fell within (a) or (b) of Lord Mance's formulation at paragraph 126.

[59]...In view of the facts that the Claimant was himself considering consulting with his tax lawyers and/or the need to take tax counsel's advice about the continued viability of the Scheme, I consider it clear that (a) the formulations of the knowledge required referred to in paragraph 58 above, and/or (b) the test set out in s 14A(10) (knowledge which a person might reasonably have been expected to acquire…. (b) from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek), are clearly satisfied in this case well before 11 May 2008." (Integral Memory plc v. Haines Watts [2012] EWHC 342 (Ch), Richard Sheldon QC)

- Complaining about soundness of advice may indicate sufficient knowledge

- Continuing reassurances may delay knowledge, depending on circumstances

 

"(2) Mr Thornhill accepts, however, that on the basis of reassuring correspondence received from Scotts, by letter dated 2 November 2005 (saying that this was routine and in line with normal enquiries into partnerships attracting taxation benefits), a reasonable person in the position of the claimants would not have been prompted to seek independent advice at that stage." (McClean v. Thornhill [2022] EWHC 457 (Ch), Zacaroli J)

"[264] There is no doubt on the evidence of Mr Dallimore and other witnesses that Mr Dallimore continued to give assurances that the charity shells would succeed. I note however that in the email exchange referred to above Mr Dallimore did take the view that it was no longer appropriate to correspond directly with the claimants.
[265] Even if one were to conclude that Mr Halsall merely had a "suspicion" that the scheme was flawed when he sent the letter in 2009, the matter is beyond doubt in my view by the time he sent the letter of 21 June 2011 set out above. This letter as well as indicating the possibility of a claim by the statement seeking confirmation of notification to the insurers, also clearly states that Mr Halsall is seeking details of what would be owed "if the schemes were not accepted."
[266] Therefore I find that for the purposes of section 14A Mr Halsall had actual knowledge by 21 June 2011 if not before. By this date, notwithstanding the defendants continuing assurances, Mr Halsall knew enough to justify setting about investigating the possibility that Mr Dallimore's advice was defective." (Halsall v. Champion Consulting Limited [2017] EWHC 1079 (QB), HHJ Moulder)

- Continuing reassurances may delay knowledge, depending on circumstances

- HMRC investigation consistent with original advice would not cause C to take independent advice

 

"In my judgment, this letter would not have caused a reasonable person in the position of the claimants to take independent legal advice. Such a person would have known (because the IM told them) that among the "substantial risks" were tax risks including that the availability of tax reliefs depended upon the Revenue's acceptance of the Partnership accounts, tax computations and compliance with detailed rules, and that the Revenue had the right to enquire into loss relief or interest relief claims made by any member. An enquiry by the Revenue necessarily infers the possibility that the Revenue contemplated that the tax reliefs may have been wrongly claimed. The letter was accordingly telling claimants something that was consistent with, and foreshadowed by the IM, which Mr Thornhill's advice had endorsed." (McClean v. Thornhill [2022] EWHC 457 (Ch), Zacaroli J)

- HMRC investigation consistent with original advice would not cause C to take independent advice

- HMRC assessments to "buy time" would not cause C to take independent advice

 

"As to the issues of the Discovery Assessments, a reasonable person in the claimants' position would have taken Scotts' information as to what HMRC had said at face value. Far from indicating a change in HMRC's approach (from dormant to active enquiry), this implied that HMRC had issued the Assessments purely in order to buy more time, having not yet decided whether actively to challenge the Schemes. The fact (as stated in the conclusion of the letter) that the inspector who was raising arguments had not yet been able to persuade his head office corroborated that." (McClean v. Thornhill [2022] EWHC 457 (Ch), Zacaroli J)

- HMRC assessments to "buy time" would not cause C to take independent advice

Level of detail required: a broad knowledge of the essence

 

"[10] Questions about the degree of detail required have mostly arisen in the context of the need for a claimant to know 'the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence': section 14A(8)(a). Consistently with the underlying statutory purpose, Slade LJ observed in Wilkinson v Ancliff [1986] 1 WLR 1352, 1365, that it is not necessary for the claimant to have knowledge sufficient to enable his legal advisers to draft a fully and comprehensively particularised statement of claim. Where the complaint is that an employee was exposed to dangerous working conditions and his employer failed to take reasonable and proper steps to protect him it may well be sufficient to set time running if the claimant has 'broad knowledge' of these matters. In the clinical negligence case of Hendy v Milton Keynes Health Authority [1992] 3 Med LR 114, 117, Blofeld J said a plaintiff may have sufficient knowledge if she appreciates 'in general terms' that her problem was capable of being attributed to the operation, even where particular facts of what specifically went wrong or how or where precise error was made is not known to her. In proceedings arising out of the manufacture and sale of the drug Opren Purchas LJ said that what was required was knowledge of the 'essence' of the act or omission to which the injury was attributable: Nash v Eli Lilly & Co [1993] 1 WLR 782, 799. In Spargo v North Essex District Health Authority [1997] PIQR P235 Brooke LJ referred to 'a broad knowledge of the essence' of the relevant acts or omissions. To the same effect Hoffmann LJ said section 14(1)(b) requires 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': Broadley v Guy Clapham & Co [1993] 4 Med LR 328, 333." (Haward v. Fawcetts [2006] UKHL 9, Lord Nicholls)

Level of detail required: a broad knowledge of the essence

Knowledge of attribution of damage to acts/omissions of another: real possibility

 

"[11] A similar approach is applicable to the expression 'attributable' in section 14A(8)(a). The statutory provisions do not require merely knowledge of the acts or omissions alleged to constitute negligence. They require knowledge that the damage was 'attributable' in whole or in part to those acts or omissions. Consistently with the underlying statutory purpose, 'attributable' has been interpreted by the courts to mean a real possibility, and not a fanciful one, a possible cause of the damage as opposed to a probable one: see Nash v Eli Lilly & Co [1993] 1 WLR 782, 797-798. Thus, paraphrasing, time does not begin to run against a claimant until he knows there is a real possibility his damage was caused by the act or omission in question." (Haward v. Fawcetts [2006] UKHL 9, Lord Nicholls)

"[404]...(3) Not only does the claimant not need to know with certainty, he also does not need to know in detail. This was put in various ways in the Haward case: such as that a claimant needed to know "in general terms" that her complaint was capable of being attributed to an operation, or that a claimant needed to know the "essence" of the relevant act or omission, or have "in broad terms" knowledge of the facts on which the complaint is based; or knowledge of the "essence" or "essential thrust of the case" or facts which "distil what [the complainant] is complaining about".

(4) What is required is knowledge in broad terms of: (a) the facts on which the claimant's complaint is based; (b) the defendant's acts or omissions; and (c) that there was a real possibility that those acts or omissions had been a cause of the damage." (McClean v. Thornhill [2022] EWHC 457 (Ch), Zacaroli J)

Knowledge of whether acts or omissions did/did not in law involve negligence irrelevant

 

"(9)  Knowledge that any acts or omissions did or did not, as a matter of law, involve negligence is irrelevant for the purposes of subsection (5) above." (Limitation Act 1980, s.14A(9))

 

"[12] Difficulties may sometimes arise over the interaction of these '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." (Haward v. Fawcetts [2006] UKHL 9, Lord Nicholls)

- C must know damage is sufficiently serious to justify instituting proceedings

 

"[405] Knowledge of the material facts about the damage also requires the claimant to know that the damage is sufficiently serious to justify instituting proceedings: Scion at [27].

...

[406]...In such a case, what is required – as to knowledge of damage – is knowledge that if the Scheme did not attract the Tax Benefits, then the claimant would be sufficiently worse off, than if they had not entered into the Scheme at all, to justify instituting proceedings."  (McClean v. Thornhill [2022] EWHC 457 (Ch), Zacaroli J)

- C must know damage is sufficiently serious to justify instituting proceedings
Knowledge of attribution of damage to acts/omissions of another: real possibility
Knowledge of whether acts or omissions did/did not in law involve negligence irrelevant

- But knowledge of fault may not be

 

"[13] A linguistic point, which can give rise to confusion, should be noted here. Sometimes the essence of a claimant's case may lie in an alleged act or omission by the defendant which cannot easily be described, at least in general terms, without recourse to language suggestive of fault: for instance, that 'something had gone wrong' in the conduct of the claimant's medical operation, or that the accountant's advice was 'flawed'. Use of such language does not mean the facts thus compendiously described have necessarily stepped outside the scope of section 14A(8)(a). In this context there can be no objection to the use of language of this character so long as this does not lead to any blurring of the boundary between the essential and the irrelevant.
[14] This point is exemplified in Dobbie v Medway Health Authority [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 Hallam-Eames v Merrett Syndicates Ltd [2001] Lloyd's Rep PN 178, 181.
(Haward v. Fawcetts [2006] UKHL 9, Lord Nicholls)

- But knowledge of fault may not be

- Query whether C needs to know D owed a duty of care in relation to the damage

 

"[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?" (Haward v. Fawcetts [2006] UKHL 9, Lord Nicholls)

- Query whether C needs to know D owed a duty of care in relation to the damage

Tort: overriding time limit of 15 years

 

"(1)  An action for damages for negligence, other than one to which section 11 of this Act applies, shall not be brought after the expiration of fifteen years from the date (or, if more than one, from the last of the dates) on which there occurred any act or omission—

(a)  which is alleged to constitute negligence; and

(b)  to which the damage in respect of which damages are claimed is alleged to be attributable (in whole or in part).

(2)  This section bars the right of action in a case to which subsection (1) above applies notwithstanding that—

(a)  the cause of action has not yet accrued; or

(b)  where section 14A of this Act applies to the action, the date which is for the purposes of that section the starting date for reckoning the period mentioned in subsection (4)(b) of that section has not yet occurred;

before the end of the period of limitation prescribed by this section." (Limitation Act 1980, s.14A(10))

Tort: overriding time limit of 15 years

- Letter repeating allegedly negligent advice which Cs did not see does not reset clock

 

"[388] I reject the contention that this amounted to a further breach of duty by Mr Thornhill. That is because there is no evidence that this letter or its contents was ever sent, shown, or relayed to any claimant. It was, as it stated on its face, for Scotts' internal verification purposes only. Accordingly, I do not see how any act or omission of Mr Thornhill in relation to this letter can have constituted an act of negligence, or can have been causative of any conduct giving rise to loss on the part of the claimants." (McClean v. Thornhill [2022] EWHC 457 (Ch), Zacaroli J)

Cannot defeat limitation by claiming only in respect of damage which occurs within limitation period

 

"[35] Mr Khan contends that the Claimant is entitled in any event to recover the fees of leading tax counsel for the advice received in 2009. However, liability for these fees is claimed to arise from the same acts of negligence as are relied on for the claim to recover lost interest. In Khan v Falvey [2002] EWCA Civ 400, Sir Murray Stuart-Smith stated, at para 23:

A claimant cannot defeat the statute of limitations by claiming only in respect of damage which occurs within the limitation period, if he has suffered actual damage from the same wrongful acts outside that period.

The claim for leading tax counsel's fees plainly falls foul of this principle, as does, for the same reasons, the claim for court costs." (Integral Memory plc v. Haines Watts [2012] EWHC 342 (Ch), Richard Sheldon QC)

Cannot defeat limitation by claiming only in respect of damage which occurs within limitation period
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