The Court of Appeal, in Lillo Sciortino v Marc Beaumont , recently clarified the issue as to the date upon which a cause of action accrues in negligence when a Barrister has given negligent advice on two separate occasions about the same or similar issues. The question has important implications for the limitation period for bringing a claim: Is there one single cause of action which accrues when the first negligent advice was given and acted upon (in which case, in Sciortino, the claim would be time barred by limitation and the Defendant would have a complete defence), or does a separate cause of action – albeit for lesser loss and damage – accrue when the second negligent advice is given and acted upon (which, in Sciortino, would mean the claim was no longer time barred by limitation?
Sciortino (the Claimant then Appellant on appeal), was made bankrupt on 29 June 2007. Trustees in Bankruptcy were appointed who subsequently applied for an order for sale and possession of Sciortino’s property in June 2010; such orders being made on 7 March 2011.
Following the order for possession and sale, Sciortino took advice from Beaumont (the Defendant then Respondent on Appeal), for advice on the prospect of appealing the orders.
The Defendant advised that the Claimant may have “reasonable prospects of success” and a “winnable” case based on a ground of appeal arising from S283A Insolvency Act 1986 (“the dismissal argument”); advising in April 2011 and November 2011. The appeal was heard in November 2011 and was dismissed.
The Claimant issued proceedings against the Defendant for professional negligence on 25 October 2017, pleading that the advice given in April and November 2011 was negligent. Proceedings were issued outside of the six- year limitation period with respect to the April 2011 advice, but not the November 2011 advice, and the Defendant took the point that the Claimant’s case was time barred.
The Defendant sought to strike out/obtain summary judgment on paragraph 68 of the Claimant’s Particulars of Claim, relating to the dismissal argument, on the basis that it was time-barred as the April 2011 advice was more than six years ago and allegations arising from the October 2011 advice arose from the same (or substantially the same) facts.
Master Teverson and latterly, HHJ Jarman QC, sitting as a judge of the Chancery Division, found for the Defendant, concluding that the wording of paragraph 68 of the Particulars of Claim meant that the October 2011 advice was not a separate cause of action to the (time-barred) April 2011 advice. As such, the finding was that the Claimant’s claim relating to the October 2011 advice was also time-barred due to its association with the April 2011 advice.
Sciortino (as Appellant) appealed to the Court of Appeal and prevailed. LJ Coulson overturned the findings of the lower courts, finding that the Respondent’s October 2011 advice caused definable, separate damage to the time-barred April 2011 advice and that the Appellant could recover in respect of that advice.
LJ Coulson found that, in a scenario where there are two allegedly negligent pieces of advice, there was no general principle of logic or common sense requiring a “relation back”, such as to say that the limitation period is triggered by the first piece of negligent advice regardless of subsequent pieces of negligent advice. However, the facts of the case are important.
In summary, legal professionals in particular must be aware that, even if advice is given relating to the same or substantially the same issues as matters advised on previously which is outside the limitation period, the professional can still be liable for further advice provided.
If you need advice on the limitation period in claims, contact our professional negligence lawyers.
This article has been co-written by William Rees and Joanna Corbett-Simmons.
 Lillo Sciortino v Marc Beaumont  EWCA Civ 786, 2021 WL 02077929  See paragraphs 13-16 of the judgment for detail of the specific ground of appeal and Insolvency Act provisions  S2 Limitation Act, 1980  The Times Law Report, 17 June 2021
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