Boycott-ed? What Witcomb means for date of knowledge and limitation defences

Section 14A of the Limitation Act 1980 was introduced in the wake of Pirelli General Cable Works Ltd v Oscar Faber & Partners to address the clear unfairness of claims being held to be statute-barred where the claimants did not know (and could not have been expected to know) they had suffered damage prior to the expiration of the primary limitation period.

Since then, parties have grappled with the exception, with fierce debate over the knowledge a claimant has acquired – or ought reasonably to have acquired – and by when, often reaching the courts.

Boycott v PGW

In Boycott, the claimant (C) had purchased a property with his then girlfriend. At the time, they agreed they would be joint tenants so that on the death of either, the property would pass to the survivor. C and his girlfriend then split up.

In August 2010, C issued a claim against his former solicitors (D). He alleged that they were negligent in 1996 when they failed to advise that the joint tenancy was unilaterally severable, which in 2007 his former girlfriend had chosen to do, to his detriment.

C issued the claim more than three years after being notified of the severance. He alleged that he did not have the requisite knowledge to bring a claim against D until March 2009, when he was advised that his solicitors were under a duty to advise him that the tenancy was severable.

This was rejected by the court which held that C had sufficient knowledge to bring the claim at the point of severance and not when he took advice:

“He knew everything he needed to know, namely that the solicitor had been told of the agreement he had with Mrs Wyatt [the joint tenant], that the agreement had not apparently been put into effect, that he had not been advised that the joint tenancy was severable unilaterally and that it had been so severed, so he had lost half his property. What more, one might ask rhetorically, did he need to know? […] There was no need in law for Mr Boycott to know that the solicitor owed a legal duty to advise him that the joint tenancy was unilaterally severable (or for that matter to take instructions from him). And the fact that Mr Boycott did not address his mind to the damage having been attributable to the solicitors’ omissions is not fatal to his actual knowledge under s14A (8)(A).”

Witcomb

Earlier this year, the Court of Appeal handed down judgment in Witcomb. Surprising many, the court did not follow Boycott but distinguished the earlier decision on the facts.

The claim in Witcomb arose out of a road traffic accident in 2002 in which the claimant (C) suffered serious injuries to his right leg and foot. Proceedings were issued against the driver and liability was admitted, but quantum was in issue.

At a settlement meeting in 2009 C accepted £150,000 in full and final settlement of his claim. C had not received any advice about provisional damages. He was told that, other than a trial, a lump sum payment in full and final settlement was the only option available to him.

C’s condition deteriorated much more quickly than had been anticipated and, in January 2017, a below the knee amputation was recommended to him for the first time.

C immediately contacted his former solicitors (D) and asked whether his claim could be reopened. He was told it could not. Later, he was advised by one of his doctors to take further legal advice. He did, and proceedings were issued against D in December 2019.

First instance decision  

The judge concluded that C had knowledge of the material facts (under section14A(6)(a) & (7) – that his injuries were much more serious than expected) in mid-2016, but that he only had knowledge of attribution at some stage after January 2017 (the requirement under section14(A)(8a) “that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence”), less than three years before proceedings were issued.

The Court of Appeal

D appealed on two bases. Its primary case was that C had knowledge of both the material facts about the damage and of attribution at the time of the settlement meeting in December 2009 (so that section 14A did not operate to extend the primary limitation period).

D’s secondary case was that C had material facts knowledge by mid to late 2016 and the judge should have found he had knowledge of attribution at the same time. In that event, the three-year limitation period expired before the claim was issued.

D sought to rely on the decision in Boycott and, in particular, the passage quoted above. However, the court compared what C knew in Boycott (which was described as relevant knowledge) and what C knew in this case and held that Boycott did not assist. D’s appeal was unanimously dismissed.

Grounds for distinguishing Boycott

The main difference between the two cases is that in Witcomb, C had not been advised of the possibility of provisional damages and only became aware of the omission at the same time he became aware that provisional damages should have been an option.

In Boycott, although C had not been advised about the severability of the joint tenancy, he became aware that the agreement he had with his ex-girlfriend had not been put into effect at the point when the tenancy was severed and he was advised that the notice was valid ie, the point at which he lost his ownership rights in 2007.  

What does this mean in practice?

Boycott is often cited by defendants in strike out/summary judgment applications involving date of knowledge under section 14A. From now, however, parties who intend to do so will need to draw Witcomb to the court’s attention.

This is likely to lead to more applications failing since the court is likely to hold that section 14A is fact-sensitive and that striking out or summary judgment is not appropriate. Defendants hoping to defeat claims at a preliminary stage may find it harder to do so. If the courts become more reluctant to make decisions about limitation defences before hearing all the evidence, costs will become exponentially higher for all parties involved and claims will take much longer to resolve.