Chinnock v Veale Wasbrough [2015] EWCA Civ 2014

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The case of Chinnock v Veale Wasbrough [2015] EWCA Civ 2014 raises questions regarding date of knowledge and the application of section 14A of the Limitation Act 1980.

The facts 

On 20 October 1997 Ms Chinnock attended hospital for an ultrasound scan. The scan indicated a risk of her baby being born with abnormalities and Mr Schumann and Ms Chinnock were advised by the consultant obstetrician that the risk required some form of action.  Their obstetrician was aware that they did not wish to have a disabled child. Ms Chinnock requested further testing, the results of which were normal. Mr Schumann and Ms Chinnock were reassured by the results of the further testing and continued with the pregnancy. On 21 April 1998 Ms Chinnock gave birth to a baby daughter. Unfortunately her daughter had multiple congenital abnormalities and spent much of her life in hospital before passing away on 14 December 2009 at the age of 11.

Proceedings

Mr Schumann and Ms Chinnock sought legal advice from Veale Wasbrough in relation to a case against Liverpool Women's Hospital NHS Trust ("the Trust") and secured legal aid funding. A claim was issued against the Trust on 12 April 2001 for wrongful birth.  The limitation period for any claim against the NHS Trust was going to expire on 21 April 2001.  They were firmly of the view that the pregnancy should have been terminated before Bethany was born. Furthermore they considered that the medical staff at Liverpool Women's Hospital were negligent in their antenatal care.

Veale Wasbrough instructed counsel, Ms Rea, to advise. During a conference, the expert obstetrician instructed advised that the obstetricians in the case had taken reasonable decisions at each stage of the process. Ms Rea therefore advised that the claim could not succeed on liability. Veale Wasbrough supported Ms Rea's findings and advised Mr Schumann and Ms Chinnock that legal aid funding would be withdrawn.  Veale Wasbrough further advised the parents that if they were dissatisfied they could take alternative legal advice   However, both parents accepted the advice and allowed the proceedings against the Trust to lapse.

Eight years later Mr Schumann and Ms Chinnock went through divorce proceedings. Mr Schumann was asked by his new solicitors whether he required any advice on other matters. He informed them of the case against the Trust. Having reviewed the relevant paperwork, his solicitors advised that he had been given negligent advice by Veale Wasbrough.Therefore, on 8 July 2010 Mr Schumann and Ms Chinnock issued proceedings in the Queen's Bench Division of the High Court against Veale Wasbrough for negligence in their advice and conduct of the prospective claim against the Trust. On 19 January 2012 the parents issued similar proceedings against Ms Rea. The defendants in both actions denied the allegations of negligence and pleaded that the claims were barred under the Limitation Act 1980.  

In November 2012 Master Yoxall ordered that the two actions be managed and tried together and the questions of liability and limitation be determined as preliminary issues. In the subsequent High Court proceedings, the judge held that the claim failed on liability, but that in any event, the claim was out of time based on a finding that Mr Schumann and Ms Chinnock had actual knowledge of the relevant facts more than three years prior to issuing proceedings.  Ms Chinnock appealed to the Court of Appeal.

Appeal judgment

On 7 May 2015, the Court of Appeal handed down its judgment, dismissing the appeal on both liability and limitation. Lord Justice Jackson identified that Ms Chinnock was aware of all material facts in 2001, save for whether the advice received by Veale Wasbrough and Ms Rea was wrong and whether an errors made by them were negligent. Lord Justice Jackson considered whether Ms Chinnock's knowledge amounted to "the knowledge required for bringing an action for damages" within section 14A (5) of the Limitation Act 1980.

Lord Justice Jackson held that waiting eight years to seek advice on whether the original advice was negligent was not justified. He felt that, under section 14A (9), time would start to run under section 14A regardless of whether Ms Chinnock knew if Veale Wasbrough and Ms Rea had been negligent. However, Lord Justice Jackson did consider that Ms Chinnock required knowledge that the advice received from both Veale Wasbrough and Ms Rea had been incorrect for time to run under section 14A. On that basis, Lord Justice Jackson believed that time did not start to run (in respect of the Chinnock's knowledge of the potential claim) until she knew, or ought to have known, that she had lost a viable cause of action against the Trust. He concluded that she did not have actual knowledge but rather that she had constructive knowledge in accordance with section 14A(10). On that basis, Ms Chinnock's claim against Veale Wasbrough and Ms Rea was statute barred.

Comment

Chinnock v Veale Wasbrough reminds us that it is important for both potential claimants and defendants to critically evaluate when limitation has expired. The decision in this case may leave potential claimants feeling as though they have to take a second opinion to ensure the advice they have received is correct. However, Lord Justice Jackson appeared to make his decision taking into account that Ms Chinnock was "dumbfounded" by the advice she received from Veale Wasbrough and Ms Rea. On that basis, it may be argued that she should have sought a second opinion at an earlier stage.

This still leaves uncertainty surrounding the application of Section 14(A) of the Limitation Act 1980. Although the Court of Appeal Judges all agreed in this case that the claim was time barred, they did not all agree with Lord Justice Jackson's view regarding constructive knowledge. However, this case provides helpful guidance for lawyers when determining whether a claim is time barred and should encourage lawyers to closely scruitinise claims where claimants intend to rely upon section 14A.