Solicitor negligence: Court of Appeal case alerts

The Court of Appeal has recently decided cases on two issues that are fundamental to the practice of a solicitor: limitation and the enforceability of settlement terms. The facts and outcomes of these cases will be of interest for all those giving or relying upon legal advice.

In Susan Berney v Thomas Saul (t/a Saul & Co), dealing with the thorny question of when limitation starts to run in a professional negligence claim, the Court of Appeal overturned the decision of the County Court and held that the claimant’s cause of action in the professional negligence claim against her former solicitor had accrued from the day that her original claim was settled and as such was not time-barred.

In 1999, Susan Berney (SB) instructed Thomas Saul & Co (TS) to act on her behalf in a personal injury claim (the RTA claim). TS commenced proceedings in 2002 but named the wrong defendant on the claim form. This was later amended but outside the time limit. TS also failed to serve proper particulars of claim. As a result of the delay in proceedings, settlement negotiations stalled. In 2004, SB instructed a new firm of solicitors, Martin Ross (MR), and terminated her retainer with TS. MR informed SB that her claim was likely to be struck out due to the significant delay in serving the particulars of claim. In accordance with the Civil Procedure Rules, the last day for service was 11 August 2002. In light of the litigation and costs risk, therefore, SB agreed to settle her claim for £25,000 plus costs in November 2005. SB issued a negligence claim against TS on 10 January 2011 alleging that she would have recovered far more in damages had the RTA claim been dealt with properly…

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