On the silver anniversary of the Limitation Act 1980 ("the Act") and as we approach the emerald anniversary of the coming into force of section 14A of that Act, the recent case of Chinnock v Veale Wasbrough  EWCA Civ 2014 shows that the interpretation of this complicated section remains far from straightforward.
Ms Chinnock was married to Mr Schumann and in the late 1990s they were keen to start a family. They both worked with disabled children in their professional lives and were very keen to ensure that their child was not disabled. This fact they impressed upon the medical practitioners that they came across following the discovery that Ms Chinnock was pregnant in late 1997.
As a consequence various tests were carried out during the course of her pregnancy the details of which are not relevant here. Unfortunately however, the child was born with multiple congenital abnormalities. So severe were Bethany’s problems that she sadly died at the age of 11 having required significant assistance during her short life.
Ms Chinnock was certain that the care that she had received had been negligent and had proper advice and analysis of test results been carried out Bethany’s disabilities would have been identified and she would have terminated the pregnancy. She therefore instructed a solicitor, who subsequently moved to the Defendant firm, and her case was funded by legal aid. After much investigation and following an extended conference with Counsel and medical experts in July 2001 Ms Chinnock and Mr Schumann were told that the prospects of success were poor and legal aid funding was withdrawn.
Some eight years later in the course of their separation Mr Schumann was asked by his solicitors about any other matters that he might need advice on and he raised the issue of their daughter. It was referred to that firm’s clinical negligence department and they reached a different conclusion to the Defendant firm. Proceedings were therefore commenced against the Defendant firm for the allegedly negligent advice given by them and Counsel. Obviously those claims were commenced outside the primary limitation period and Ms Chinnock and Mr Schumann relied on section 14A of the Act.
Liability and limitation were ordered to be dealt with together as preliminary issues and at trial the claim was dismissed on the basis that the Defendants were not negligent but in any event the claims were statute barred by operation of the Act and the Claimants could not rely on section 14A.
Ms Chinnock appealed against both elements of the decision and ultimately failed in both regards. As a consequence the comments of the Court in regard to the operation of section 14A are strictly obiter. However, the decision is important in two respects:
- It reminds us how difficult the interpretation of section 14A remains so many years after its enactment.
- It gives an indication of how the tension between two previous authorities is likely to be resolved in the future.
The Appeal Decisions
The decision of Lord Justice Jackson (with whom Lord Justice Longmore agreed) approves the decision of Lord Justice Stuart-Smith in the oft quoted case of Forbes v Wandsworth Health Authority  QB 402. In summary what was said in that case (a case where it was alleged that negligent care had resulted in the amputation of a leg) was that the victim at that stage has a choice – the victim can either (i) assume that the doctors have done their best or (ii) seek advice to determine whether what was done was negligent. It plainly cannot be said that the first course is unreasonable but in doing so a conscious or unconscious choice has been made not to seek advice. In the absence of a change of circumstances it is unreasonable and outside the scope of section 14A to then, 10 years later, decide to take advice and determine that the care given was negligent.
Lord Justice Jackson here held that waiting eight years to seek advice on whether the original advice was negligent was not justified, particularly in circumstances where Ms Chinnock, on her own evidence had been "dumbfounded" by the advice that had been given to her by the Defendants. The analysis was this:
- Ms Chinnock did not need to know that the advice she was given by the Defendant was negligent as a matter of law for time to begin to run against her – section 14A(9) of the Act.
- However she did need to know that the advice given to her by the Defendants was wrong and that she had lost a viable cause of action against the medical staff. Lord Justice Jackson found that in accord with section 14A(10) she should be taken to have constructive knowledge of this – that is that it was not reasonable for her to abstain from taking further advice for a period of eight years.
As I say, Lord Justice Longmore agreed with this analysis and concluded that where there is tension in the authorities it is his view that the case of Forbes should be preferred, the approach adopted having been approved by the House of Lords.
Mr Justice Roth, whilst reaching the same answer, took a different approach. He took the view that the factual knowledge required related to the underlying errors of the medical staff upon which the allegedly negligent advice of the Defendants was based. This she was aware of at the conference with the Defendants in 2001 at the latest. It has to be said though that this extended approach to the knowledge of negligence in section 14A(9) was not specifically rejected in the judgments of Lord Justices Jackson and Longmore.
On one level it seems rather harsh as a matter of principle that a client goes to a solicitor and receives advice upon which he/she relies (and is entitled to rely), discovers by pure happenstance later that that advice was wrong, but is debarred from pursuing a claim because the limitation period has expired. Taken at face value this is the difficulty that section 14A was trying to address. It is also right to say that it would seem that this leaves litigants in a position of having to take a second opinion to ensure that the advice that they have received is correct. Not to do so is foolhardy in circumstances where, were one to find out later that the advice was incorrect, the action might be barred by the Act.
However, to pick up on what was said by Mr Justice Roth, such is the inevitability of the concept of limitation and it is only the responsibility of the judiciary to decide where the line is to be drawn on a particular set of facts. The purpose of limitation is to protect Defendants from stale claims and unending exposure to potential liabilities.
At bottom though this decision would appear to have been heavily influenced by the fact that Ms Chinnock was "dumbfounded" by the advice that she received and ought consequently to have sought a second opinion at a much earlier stage. It remains and will remain a very difficult call to make for those advising clients in these situations whether the Court will decide that in all the circumstances they ought reasonably to have sought a second opinion before the expiry of the primary limitation period.