Limitation periods – when does the time start to run?
The case of Chinnock v Wasbrough provides an interesting illustration of when a claimant has the required ‘knowledge’ for the purpose of determining the limitation period which will apply.
In 2001 the claimant was told by the defendant firm of solicitors and barrister that her claim against the NHS had no real prospect of success. In 2009 the claimant received different advice and decided to commence negligence proceedings against her former solicitors.
The judge at first instance decided that her claim was time barred. The normal limitation period for this type of negligence claim is six years from the accrual of the cause of action. The claimant appealed on the basis that under s14A of the Limitation Act the limitation period can be extended to three years from the date when the claimant knows or ought to have knowledge of the material facts about the loss suffered.
The Court of Appeal rejected the claimant’s claim saying that the (metaphorical) clock would start running from the time when the claimant had actual or constructive knowledge of the fact that the advice was wrong. Therefore the clock started running as soon as the claimant knew or ought to have known that she had lost a viable cause of action (even if she did not at that point know whether her solicitors’ advice was negligent).
The Court of Appeal held that the claimant had constructive knowledge in 2001. Jackson LJ said ‘[The claimant] was deeply unhappy with the legal advice which she received in 2001…She therefore had a choice. She could either consult other lawyers or she could let matters rest. … I do not think that it was open to [the claimant] to abstain from further inquiries for more than six years (in this case eight years) and then to seek legal advice’.