Success for John-Paul Swoboda in Witcomb v J. Keith Park Solicitors [2023] EWCA Civ 326 an important Court of Appeal decision on limitation in professional negligence claims arising from personal injury matters.

John-Paul was instructed by Dushal Mehta of Fieldfisher and led by Jeremy Hyam KC.  

This Court of Appeal decision sets an important precedent as it is the first time a failure to advise of provisional damages has been considered in a professional negligence claim.

Lee Witcomb suffered serious leg and foot injuries in a road traffic accident in July 2002. He instructed Keith Park Solicitors to pursue a claim against the insurers of the driver involved. Liability was admitted and a full and final settlement of £150,000 was agreed in December 2009. But Lee was not told by his former legal team about the possibility of provisional damages or the risk of amputation when they advised him at the joint settlement meeting.

In January 2017, Lee was, for the first time, advised that the best option would be a below-knee amputation of his right leg. He underwent the surgery in 2017. When he asked his original lawyer if he could reopen his case now he had undergone amputation he was told he could not. He was subsequently advised by a medical professional to seek legal advice.

Lee then instructed Dushal to claim against the original legal team for failing to advise him that provisional damages could, and should have, been claimed. But when the claim was commenced the defendants argued that the claim was out of time. They argued that Lee had sufficient knowledge for the limitation period to start in December 2009, at the time of the joint settlement meeting, or at the latest in 2016 so the claim was out of time.

The Court of Appeal upheld Bourne J’s decision from June 2021 that Lee did not have sufficient section 14A knowledge more than three years prior to the date of issue and the claim was not statute barred. After an impressively detailed analysis of the many relevant cases, the Court of Appeal determined Lee had brought his claim within 3 years of acquiring ‘relevant knowledge’ of the flawed advice.

The Court of Appeal gave a unanimous decision with the leading judgment provided by Lady Justice Thirlwall with whom Lord Justice Baker, and Lady Justice Nicola Davies agreed.

At the heart of the Defendant’s case was the argument that Lee should have realised he had received flawed advice at the time of the settlement meeting or alternatively when his symptoms had deteriorated much more quickly than he had been advised that they would. Lady Justice Thirlwall agreed that Lee did not have the necessary knowledge in 2009 at the time of the settlement meeting because he could not have been expected to seek a second opinion because: ‘He was being advised by apparently competent and experienced solicitors and counsel whose advice he was entitled to trust.’ ‘[T]o require a litigant who has received advice from competent and experienced solicitors and counsel to incur the expense, delay and disruption of a second/third opinion in case the opinions of both solicitor and counsel (which he has no reason to doubt) were flawed would seriously undermine the effective running of personal injury litigation.’

Additionally just because Lee’s symptoms had deteriorated quicker than expected did not mean he knew that the advice he had been given was flawed. Lee may have been frustrated with the legal system but he had no reason to doubt the advice he had been given: he could not be expected to know or infer he had not been advised of an important remedy in personal injury litigation, namely provisional damages. This was not a situation akin to an experienced business person whose investment goes so badly wrong that they can be expected to question the advice they were given in respect of the investment. To the contrary Lee, like most claimants, had no experience of personal injury law at all and could not be expected to know of provisional damages until advised of the same.

Lee’s claim will now progress to a trial on liability and quantum.