England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE CCRTI 97/1541 CMS2

(HIS HONOUR JUDGE SIMPSON )

Royal Courts of Justice

Strand

London WC2

Thursday, 23 April 1998

B e f o r e:

LORD JUSTICE BELDAM

MRS JUSTICE BRACEWELL

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HENDERSON

PLAINTIFF/RESPONDENT

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TEMPLE PIER COMPANY LIMITED

DEFENDANT/APPELLANT

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(Transcript of the handed down judgment of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 421 4040

Official Shorthand Writers to the Court)

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MR G BURRELL QC with MR J LEVY (Instructed by Messrs Shaw & Croft, London EC3A 7BU) appeared on behalf of the Appellant

MR D BALCOMBE (Instructed by Messrs S rutter & Co, London EC2M 5QQ) appeared on behalf of the Respondent

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J U D G M E N T

(As approved by the Court )

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©Crown Copyright

Thursday, 23 April 1998

J U D G M E N T

MRS JUSTICE BRACEWELL: On January 28th 1993 the plaintiff Miss Gennifer Henderson, who is the respondent to this appeal, intended to visit a bar and restaurant known as the No 1 Yacht Club, which was situated on board a ship "St Katherine". This vessel was moored on the Thames river by Temple Pier, Victoria Embankment London, and was connected to Victoria Embankment by means of a metal gangway, which moved up and down with the tide. As the plaintiff walked down the gangway in order to board the ship, she alleges that she slipped and fell thereby sustaining personal injuries and loss.

By particulars of claim dated April 30th 1997 and subsequently amended, the plaintiff claimed damages arising out of the accident against the defendants Temple Pier Company Ltd, who are the appellants in this appeal, and who were sued as owners and occupiers of the vessel and the metal gangway.

The Particulars of Claim anticipated that the defendants might raise the defence that the plaintiff's claim was statute barred under section 11 Limitation Act 1980, and averred that the plaintiffs date of knowledge was not more that 3 years prior to the commencement of proceedings. Particulars were given that until July 1994, the plaintiff did not know that at the material time, the defendants were the owners and occupiers of the ship and the gangway, and was unaware of the correct identity of the defendants until that date.

The defendants by their defence did allege that the plaintiff's claim was statute barred pursuant to Section 11 Limitation Act 1980, proceedings having been commenced more than 3 years after the accident and/or after the cause of action accrued.

By notice of application dated August 6th 1997 the defendants applied for an order that:

1. The plaintiff's cause of action was and is statute barred pursuant to the provisions of section 11 Limitation ACT 1980.

2. Further or in the alternative the plaintiff's claim be struck out on the basis that it is an abuse of process having been commenced more than three years after the date the accident occurred and the cause of action accrued/arose.

3. The costs of and incidental to this application be paid by the plaintiff to the defendants in any event.

The application came before H.H.Judge Simpson sitting at the Mayor's and City of London County Court on October 21st 1997 when he dismissed the defendant's applications, ordered the defendants to pay the plaintiff's costs, and granted leave to appeal. From that order the defendants now appeal.

In reaching his decision H.H.Judge Simpson found that the plaintiff instructed solicitors to act on her behalf in pursuing the claim for damages, on or about February 22nd 1993.

The solicitors sent a letter of claim to the No 1 Yacht Club on February 23rd 1994. No response was received. At the time of the accident the No 1 Yacht Club was a business and trade name, and the bar and restaurant were operated by a company Fortune Hunter Ltd. That company experienced financial difficulties and was wound up following a creditors action in the Companies Court after the date of the accident.

Between April and July 1994 the plaintiff's solicitors made unsuccessful attempts to establish the identity of the owners of the ship, but failed to do so because they misspelt the ship's name, when making enquiries. It was not until July 1994 that the solicitors identified the defendants as the owners.

The Judge found that a search in the General Register of Shipping and Seamen should have been made at a much earlier date, and that the information was readily available to the solicitors if they had made appropriate enquiries. On July 25th 1994 the solicitors wrote to the defendants giving notice of intention to claim damages, and on August 14th 1994 sent a letter before action.

The defendants informed their insurers of the anticipated claim and on September 13th 1994 by letter the insurers informed the plaintiffs solicitors of their interest.

Thereafter no further steps were taken, until the action was commenced on April 30th 1997. The Judge found that the solicitors, instructed by the plaintiff, had not provided a competent service. He identified the correct issue to be determined, namely whether the plaintiff, who had instructed solicitors to conduct her claim was fixed with the deficiencies of her solicitors. He concluded that she did not have constructive knowledge and so dismissed the defendant's application.

This appeal concerns the proper construction of the Limitation Act 1980 and whether S 14(3) fixes the plaintiff with constructive knowledge which her solicitors ought to have acquired.

The time limit for actions in respect of personal injuries is set out at S 11 Limitation Act 1980.

S 11 (3):

"an action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4)......below"

S 11 (4) (leaving out words not applicable to the instant case):

"the period applicable is 3 years from

(a) the date on which the cause of action accrued

or

(b) the date of knowledge (if later) of the person injured."

The definition of the date of knowledge for the purpose of section 11 is set out at S 14.

S14 (1) in section 11....of this Act references to a person's date of knowledge are references to the date on which he first had knowledge of the following facts:-

(a) that the injury in question was significant

and

(b) that the injury was attributable in whole or in part to the act of omission which is alleged to constitute negligence nuisance or breach of duty.

and

(c) the identity of the defendant

(d) (is not relevant).

The plaintiff knew that her injury was significant at the date of her accident on January 28th 1993. No argument arises on (b). It is in respect of (c) i.e. the identity of the defendant which is at the centre of this case.

The plaintiff relies on S14(3):-

"for the purposes of this section, a persons knowledge includes knowledge which he might reasonably have been expected to acquire -

(a) from facts observable or ascertainable by him

or

(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek:

but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and where appropriate to act on) that advice."

The principal argument in this appeal relates to the meaning and limits of S14(3)(b).

It was accepted by H.H.Judge Simpson that the phrase "medical or other appropriate expert advice" included legal advice from a solicitor, instructed by the plaintiff to pursue on her behalf, a claim for damages for personal injuries. The Act does not contain any definition of the phrase "or other appropriate expert advice". It is however plain, that the proviso to S14(3)(b) which protects a plaintiff from being fixed with knowledge ascertainable only with the help of expert advice, is limited to knowledge of facts as opposed to law. Therefore any advice given by a solicitor could only ever come within the proviso, if it related to matters of fact upon which expert advice was required.

The question arises for determination, whether a solicitor, advising the plaintiff, is an expert within the meaning of S14(3)(b) and the proviso, for the purposes of collecting facts. Although the question has not been determined, in any judgment, binding on this court, nevertheless the matter has been the subject of judicial consideration at first instance, and also by obiter dicta in decisions of the Court of Appeal.

In Powell v NCB Times Law Report 28th May 1986 C.A. Parker LJ stated obiter dicta that as limitation was a matter of defence it had to be for the person setting up limitation to assert and prove that the claim was time barred. Once it had been shown that the initial limitation period had elapsed it was for the plaintiff to assert that the date of knowledge under S11 of the Limitation Act was later than accrual of the cause of action. If the proposed defendant wished to assert earlier knowledge either in the plaintiff himself or in his solicitors or by way of section 14(3) it was for him to do so. A party's solicitor was not an "expert" within the meaning of section 14(3)(b). That provision was directed to experts in the sense of "expert witnesses".

Sir George Waller in his judgment concurred and added that in his opinion "expert" advice in Section 14(3) meant advice which would establish by expert means the chain of causation of the damages suffered by the plaintiff. Although the head note of the Times Law Report stated:- "Solicitor is not an expert for Limitation Act purposes", it is clear from the Lexis transcript that the opinions expressed, though entitled to great weight, were not part of the ratio decidendi.

Hidden J. also considered the position of an advising solicitor under S14(3)(b) in Nash v Eli Lilly 1991 2 Med LR 182. He said:

"My conclusion is therefore that there is no binding authority on whether facts ascertainable by a plaintiff with the help of legal advice come within or without the terms of S14(3)(b). For my part I doubt whether in most ordinary circumstances they do".

In the same case on appeal, reported in 1993 WLR 782 Purchas L.J. giving the judgment of the court, after referring to the debate before Hidden J. On the question whether advice from a solicitor fell within S.14(3)(b), said:

"Of course as advice from a solicitor as to the legal consequences of the act or omission is not relevant his contribution can only consist of factual information. Moreover where constructive knowledge is under consideration through the channel of a solicitor this can only be relevant where it is established that the plaintiff ought reasonably to have consulted a solicitor at all. Thus it is for the defendant to establish not only that a solicitor whom the plaintiff might consult would have the necessary knowledge but also that it was reasonable to expect the plaintiff to consult him. This question was considered at some length in the judgment of Hidden J. and we can see no reason to depart from his general approach..."

In considering this question the form of S.14 is significant. It defines the date of knowledge by reference to the date the plaintiff first acquires knowledge of particular facts but excludes as irrelevant knowledge whether acts give rise to breach of duty. It then provides that a plaintiff is to be taken to have knowledge which includes knowledge which he could reasonably be expected to acquire with the help of expert advice but if he has taken all reasonable steps to obtain the appropriate advice, he is not fixed with knowledge of a fact "only obtainable with expert advice".

Conventionally a person bringing an action for personal injuries who instructs a solicitor to act for him will leave it to the solicitor to advise him whether he has a cause of action and if so against whom proceedings should be brought. The advice of a solicitor will most commonly be directed to the question whether acts or omissions did or did not as a matter of law involve negligence, nuisance or breach of duty, but knowledge of these matters is declared to be irrelevant. There may, however be circumstances in which a person bringing an action for personal injuries may need expert advice to "identify the defendant" in the sense of identifying the person answerable in law for his injuries. For example he may need expert advice whether the claim should be brought against the occupier,employer, contractor or individual. Having identified the person or persons standing in the appropriate relationship to give rise to a duty, the naming of the party would not, save in the most exceptional circumstances, be a fact ascertainable "only with the help of expert advice".

That is demonstrated by the facts in the present case. Once the name of the ship was correctly spelt, an enquiry to the Department of Transport on 19th July 1994 produced details of the ownership of the "St Katherine" within a week. It was not therefore, to adapt the words of Sir George Waller in Powell v NCB (supra), a fact which could only be established by expert means.

Having given her solicitors general responsibility for the conduct of her claim, actions are taken and knowledge is acquired on her behalf. If solicitors fail to take the appropriate steps to discover the person against whom her action should be brought, she cannot take refuge under S.14(1)(c) because on the face of it the occupier of the ship "St Katherine" and the gangway was knowledge which she might reasonably have been expected to acquire from facts obtainable or ascertainable by her. Even if the solicitor is to be regarded as an appropriate expert, the facts were ascertainable by him without the use of legal expertise. The proviso is not intended to give an extended period of limitation to a person whose solicitor acts dilatorily in acquiring information which is obtainable without particular expertise. The plaintiff did not argue that her former solicitors had acted with the appropriate speed in making enquiries to establish the identity of the defendant and, as appeared in the course of the argument, the submissions that she ought not to be fixed with knowledge because she had taken all reasonable steps to obtain that advice was advanced on her behalf by "much more seasoned warriors" as Finnimore J. referred to those who stand behind such parties in Semtex Ltd.v Gladstone 1954 2 AER 206 at 209.

It was not a complex enquiry, a site visit would have clarified the name of the ship and enabled speedy enquiries to be made to reveal the occupier. Instead the enquiries drifted as well as being misdirected.

I am satisfied that on the proper construction of S14(3) Limitation Act 1980 the plaintiff is fixed with constructive knowledge which her solicitors ought to have acquired, and I would allow this appeal, set aside the order of H.H.Judge Simpson made on October 21st 1997 and substitute a declaration that the plaintiff's claim is statute barred pursuant to section 11 Limitation Act 1980.

LORD JUSTICE BELDAM: I Agree.

ORDER: Appeal allowed with costs.