Solicitors can give advice not to sue!

In Chinnock v Wasborough & Ors [2015] EWCA Civ 441 Jackson LJ gave a clear and robust judgement on two issues in the law of professional negligence namely limitation and negative advice.

The substance of this case is unusual – whether in professional judgement of the solicitors and barrister was incorrect. This was doubly unusual in that the original case concerned a clinical negligence matter which was ended on advice in 2001, therefore carefully judged by the law of clinical negligence at the time. However Jackson LJ gives all lawyers some support in paragraph 77:

77. It is frequently the duty of lawyers to give unwelcome advice to their clients. If they conclude that a claim or a defence has no real prospect of success, it is their duty to say so bluntly. It is no kindness to the client to soften the advice or to encourage them to press on anyway. Ms Markland did no more and no less than was her duty, when she wrote the discouraging letter to Ms Chinnock on 16th July 2001.

This against a background of a competently undertaken conference with experts exploring the prospects of success. Whilst it can be necessary to soften the blow, it does a client no good to maintain a case that has no realistic prospects of success. It is of course open to any such client to obtain a further opinion even on short notice if unhappy with advice.

Jackson LJ’s key propositions to be able to analyse limitation in this case were:

i) The advice which counsel and solicitors gave to Ms Chinnock was wrong. Contrary to that advice, on the law as it stood in 2001, Ms Chinnock did have a viable cause of action against the NHS Trust for wrongful birth.

ii) The error made by the solicitors and counsel was negligent. It was not merely an instance of lawyers taking a reasonable but incorrect view of matters (as often happens, for example when one party loses a case or when a judge’s decision is reversed on appeal).

Both of which contradict the substantive findings, but the second of these is an important reminder that a reasonable but incorrect view is not necessarily negligent – were that untrue then any lawyer who lost his client’s case would in theory be negligent.

Limitation is often seen as a generally settled area of law following Haward v Fawcetts but still raises occasional appeal questions, such as this one on knowledge. At first instance the court followed the knowledge point fairly strictly finding actual knowledge, as summarised by Jackson LJ:

iv) The primary limitation period expired in 2007. Therefore Ms Chinnock needed to rely on section 14A of the Limitation Act 1980. For the purposes of section 14A Ms Chinnock knew all material facts in 2001. She knew the identity of Veale Wasbrough and Ms Rea. She knew that she was not pursuing her claim against the NHS Trust because of the lawyers’ advice. All that she did not know was that the advice was negligent. Knowing or not knowing that conduct is negligent is irrelevant for the purposes of section 14A by reason of sub-section (9). Therefore Ms Chinnock’s claim was statute barred.

However, this analysis of actual knowledge was found incorrect by Jackson LJ (pp.80-92) who found a lack of actual knowledge and lack of knowledge of either of those two propositions.

By reason of Section 14A(9) lack of knowledge of proposition 2 does not prevent time from running; however:

88. Did Ms Chinnock need to know proposition 1 in order for time to start to run under section 14A? In my view she did. The word “negligence” in section 14A (9) means negligence of the current defendant or of a person for whose conduct that defendant is liable, for example an employee. “Negligence” does not embrace the negligence of some third party in an adversarial relationship with the defendant now being sued.

89. In the present case, therefore, time did not start to run against Ms Chinnock until she knew, or ought to have known, that she had lost a viable cause of action against the NHS Trust. I do not agree with the judge that Ms Chinnock had actual knowledge for the purposes of section 14A in 2001. In my view the correct analysis is that the claimant had constructive knowledge of proposition 1 by reason of section 14A (10).

Notwithstanding that Ms Chinnock did not have actual knowledge, this leads directly to the conclusion that Ms Chinnock did have constructive knowledge under s.14A(10), particularly by reference to Forbes v Wandsworth Health Authority [1997] QB 402:

90. This case is conceptually similar to Forbes. Ms Chinnock was deeply unhappy with the legal advice which she received in 2001. According to her evidence she was dumbfounded. She therefore had a choice. She could either consult other lawyers or she could let matters rest. Obviously Ms Chinnock could not be expected to take and act on fresh legal advice during the four week period before the claim form against the NHS Trust expired. But she could be expected to do so well before the primary limitation period against the lawyers expired.

91. I do not think that it was open to Ms Chinnock to abstain from further inquiries for more than six years (in this case eight years) and then to seek legal advice. It is true that during 2009 a firm of solicitors acting in the divorce proceedings happened to ask the husband if advice was required on any other matter. That, however, is not a justification for waiting eight years before taking legal advice.

Longmore LJ added:

108. There is some tension between Forbes v Wandsworth Health Authority [1997] QB 402 and Oakes v Hopcroft [2000] Lloyd’s Rep PN 946. In my view, the former authority should be preferred. It was expressly approved by the House of Lords in Adams v Bracknell Forest Borough Council [2005] 1 A.C. 76 at paragraphs 42-45 per Lord Hoffmann and is consistent with the analysis in the later House of Lords case of Howard v Fawcetts [2006] 1 WLR 682 as summarised by my Lord in paragraph 86 of his judgment.

109. On the matter of actual knowledge which divides my Lords, any view I express will be obiter but, as presently advised, I agree with Jackson LJ that “negligence” in section 14A(9) means negligence of the defendant or of a person for whom he or she is responsible rather than the negligence of someone else. Ms Chinnock did not know what my Lord has called “proposition 1” but she had every opportunity to obtain that knowledge before the claim against the defendants became time-barred. She therefore had constructive knowledge for the purposes of section 14A(10) of the 1980 Act.

Notably however Roth LJ had a different view of this analysis of limitation:

104. I respectfully agree with Jackson LJ that this approach, as succinctly expressed in the judgment below, was flawed. As Haward v Fawcetts makes clear, in order for the special period of limitation to start, it is necessary for Ms Chinnock to have had knowledge of (or to have reasonably been able to discover) the facts which can fairly be described as constituting the negligence of which she complains; or to adopt another formulation, knowledge of the acts or omissions that are causally relevant for her complaint: see, e.g., the speech of Lord Mance at [120]. Here, given the way her case was presented on this appeal, Ms Chinnock therefore needed to know (a) that the risk of trisomy revealed by 20 October 1997 scan was 1:13; (b) the comments made by the radiologist in his report on the scan of 18 February 1998; and (c) that neither of these were communicated to her at the time. However, she had become aware of (a) and (b) by the time of the conference with her lawyers on 13 July 2001, and she was self-evidently aware of (c).

105. What Ms Chinnock did not know was that the doctors were under a duty to convey this information to her. But that is another way of saying that she did not know that these failures meant that the NHS Trust was negligent. In my view, that further knowledge, which Ms Chinnock understandably did not have, has to be disregarded by reason of section 14A(9). The words of that subsection refer to “any acts or omissions”, and I do not see that they can be confined to acts or omissions of the defendants.

106. Accordingly, I think that the judge was correct in concluding that the claim was out of time by reason of actual knowledge, although I consider that this result depends upon a more extensive assessment of the relevant facts. I realise that this conclusion may appear harsh, but that harshness seems to me inherent in the balance that Parliament has struck in the drafting of section 14A and the fact that, as critics have pointed out, the provisions of the section apply equally in the case of negligence by omission as in the case of negligence by a positive act. However, as I noted at the outset, this does not affect the resolution of this appeal.

Those highlighted views introduce the additional possibility that the acts or omissions of another party may influence the state of knowledge of a claimant for the purposes of limitation – this disagrees with Jackson LJ’s analysis and leads to a potentially divisive situation. However for the moment the majority view must stand on this issue.