SECTION 14A OF THE LIMITATION ACT: DON'T RELY ON s.14A BEING A GOOD INVESTMENT
In Susan Jacobs -v- Sesame Ltd [2014] EWCA Civ 1410 the Court of Appeal held that the claimant could not take advantage of s.14A of the Limitation Act 1980. The date of knowledge was much earlier than that found by the trial judge.
SECTION 14A
In crude terms s.14A provides a “date of knowledge” exception to the normal rules for the starting date of a limitation period.
“Special time limit for negligence actions where facts relevant to cause of action are not known at date of accrual
(1) This section applies to any action for damages for negligence, other than one to which section 11 of this Act applies, where the starting date for reckoning the period of limitation under subsection (4)(b) below falls after the date on which the cause of action accrued.
(2) Section 2 of this Act shall not apply to an action to which this section applies.
(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.
(4) That period is either—
(a) six years from the date on which the cause of action accrued; or
(b) three years from the starting date as defined by subsection (5) below, if that period expires later than the period mentioned in paragraph (a) above.
(5) For the purposes of this section, the starting date for reckoning the period of limitation under subsection (4)(b) above is the earliest date on which the plaintiff or any person in whom the cause of action was vested before him first had both the knowledge required for bringing an action for damages in respect of the relevant damage and a right to bring such an action.
(6) In subsection (5) above “the knowledge required for bringing an action for damages in respect of the relevant damage” means knowledge both—
(a) of the material facts about the damage in respect of which damages are claimed; and
(b) of the other facts relevant to the current action mentioned in subsection (8) below.
(7) For the purposes of subsection (6)(a) above, the material facts about the damage are such facts about the damage as would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.
(8) The other facts referred to in subsection (6)(b) above are—
(a) that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence; and
(b) the identity of the defendant; and
(c) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant.
(9) Knowledge that any acts or omissions did or did not, as a matter of law, involve negligence is irrelevant for the purposes of subsection (5) above.
(10) For the purposes of this section a person’s 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 appropriate expert advice which it is reasonable for him to seek;
but a person shall not be taken by virtue of this subsection to have 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 FACTS IN JACOBS
Mrs Jacobs had invested £65,000 in an investment bond in 2005. Rather than make money the bond lost money. Her claim was for a loss of £7,968.32. She brought a claim alleging that the financial advice to place money in this bond was negligent. The defendant argued that Mrs Jacob had received annual statements from 2006 onwards. By 2009 she knew there had been a catastrophic fall in the value of the bond. The judge at first instance found that the claimant could rely on s.14A.
THE PRINCIPLES RELATING TO S.14A
Lord Justice Tomlinson reviewed the principles.
- The leading authority on the application of these provisions is the decision of the House of Lords in Haward v Fawcetts [2006] 1 WLR 682, a case concerned however only with actual knowledge. Their Lordships did not perhaps speak with entirely one voice, but such differences as there may be are of no importance here. The most immediately relevant passages are as follows:-
“Lord Nicholls of Birkenhead
The degree of knowledge required
8. Two aspects of these ‘knowledge’ provisions are comparatively straightforward. They concern the degree of certainty required before knowledge can be said to exist, and the degree of detail required before a person can be said to have knowledge of a particular matter. On both these questions courts have had no difficulty in adopting interpretations which give effect to the underlying statutory purpose.
9. Thus, as to the degree of certainty required, Lord Donaldson of Lymington MR gave valuable guidance in Halford v Brookes [1991] 1 WLR 428, 443. He noted that knowledge does not mean knowing for certain and beyond possibility of contradiction. It means knowing with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking advice, and collecting evidence: ‘suspicion, particularly if it is vague and unsupported, will indeed not be enough, but reasonable belief will normally suffice’. In other words, the claimant must know enough for it to be reasonable to begin to investigate further.
10. Questions about the degree of detail required have mostly arisen in the context of the need for a claimant to know ‘the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence’: section 14A(8)(a). Consistently with the underlying statutory purpose, Slade LJ observed in Wilkinson v Ancliff [1986] 1 WLR 1352, 1365, that it is not necessary for the claimant to have knowledge sufficient to enable his legal advisers to draft a fully and comprehensively particularised statement of claim. Where the complaint is that an employee was exposed to dangerous working conditions and his employer failed to take reasonable and proper steps to protect him it may well be sufficient to set time running if the claimant has ‘broad knowledge’ of these matters. In the clinical negligence case of Hendy v Milton Keynes Health Authority [1992] 3 Med LR 114, 117, Blofeld J said a plaintiff may have sufficient knowledge if she appreciates ‘in general terms’ that her problem was capable of being attributed to the operation, even where particular facts of what specifically went wrong or how or where precise error was made is not known to her. In proceedings arising out of the manufacture and sale of the drug Opren Purchas LJ said that what was required was knowledge of the ‘essence’ of the act or omission to which the injury was attributable: Nash v Eli Lilly & Co [1993] 1 WLR 782, 799. In Spargo v North Essex District Health Authority [1997] PIQR P235 Brooke LJ referred to ‘a broad knowledge of the essence’ of the relevant acts or omissions. To the same effect Hoffmann LJ said section 14(1)(b) requires that ‘one should look at the way the plaintiff puts his case, distil what he is complaining about and ask whether he had in broad terms knowledge of the facts on which that complaint is based’: Broadley v Guy Clapham & Co [1993] 4 Med LR 328, 333.
11. A similar approach is applicable to the expression ‘attributable’ in section 14A(8)(a). The statutory provisions do not require merely knowledge of the acts or omissions alleged to constitute negligence. They require knowledge that the damage was ‘attributable’ in whole or in part to those acts or omissions. Consistently with the underlying statutory purpose, ‘attributable’ has been interpreted by the courts to mean a real possibility, and not a fanciful one, a possible cause of the damage as opposed to a probable one: see Nash v Eli Lilly & Co[1993] 1 WLR 782, 797-798. Thus, paraphrasing, time does not begin to run against a claimant until he knows there is a real possibility his damage was caused by the act or omission in question.
. . .
Lord Walker of Gestingthorpe
57. This appeal turns largely on the interpretation, and the application to a rather confused set of facts, of section 14A (8)(a). The effect of that provision is that the claimant must know, before time starts to run, that “the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence.” It is to be noted that this provision may involve an exercise in hindsight spanning a considerable period of time. Its function is as part of the process of ascertaining the “starting date” defined in section 14A (5)—that is, the date from which the alternative limitation period in section 14A (4)(b) is to run. As numerous reported cases show, the starting date may occur at a time when a claimant’s knowledge about his claim is far from complete. Inquiries and investigations may have to be made, and expert advice may have to be obtained as to how the claim should be pleaded, and how special damages should be quantified. A claimant may have the requisite knowledge (as Slade LJ said in Wilkinson v Ancliff (BLT) Ltd [1986] 1 WLR 1352, 1365) “even though he may not yet have the knowledge sufficient to enable him or his legal advisers to draft a fully and comprehensively particularised statement of claim.” But by the time, often years later, that the limitation issue comes to be decided, whether as a preliminary issue or at trial, the claimant’s case will have been pleaded, and the defendant’s “act or omission which is alleged to constitute negligence” will (or at any rate should) have been clearly identified.
. . .
Lord Brown of Eaton-under-Heywood
90. What the claimant must know to set time running is the essence of the act or omission to which his damage is attributable, the substance of what ultimately comes to be pleaded as his case in negligence. That essence or substance here could no doubt be characterised in either of two ways: either as the act of recommending investment in the company (or omitting to caution against it—on the particular parts of this case these are two sides of the same coin), or, with greater particularity, the act of recommending investment without first carrying out the investigations necessary to justify such positive advice. Having at first preferred the latter characterisation, I have come to prefer the former. True, under the former the claimant knows nothing beyond the fact that his advisers led him into what turned out to be a bad investment; he does not know, as under the latter characterisation he would, that he has a justifiable complaint against his advisers. But he surely knows enough (constructive knowledge aside) to realize that there is a real possibility of his damage having been caused by some flaw or inadequacy in his advisers’ investment advice, and enough therefore to start an investigation into that possibility, which section 14A then gives him three years to complete.
. . .
Lord Mance
118. For present purposes what matters is that it is, in my opinion, wrong to suggest that all a claimant needs to know is that he has received professional advice but for which he would not have acted in a particular way which has given rise to loss, or that he has not received advice when, if he had received it, he would have acted in a way which would avoided such loss. The defendants’ primary contention to that effect was, I think, accepted by the judge at first instance (cf paragraph 103 above), and was advanced again before the House by counsel for Fawcetts. But it is, in my view, untenable, and could lead to unjust results. Mere “but for” causation is insufficient. This was pointed out by Hoffmann LJ in Hallam-Eames v. Merrett Syndicates [2001] Ll.R. Prof. Neg. 178, 181. The decision in that case illustrates the point, since it was not the writing of the run off policies or of the reinsurances to close (“RITCs”) or the certification by the auditors of the accounts which were alone regarded as the acts or omissions alleged to constitute the negligence. Rather it was those facts plus the fact that they exposed the Names to potentially huge liabilities (and in the case of the accounts also attributed values to incurred but not reported losses – “IBNRs”) none of which were capable of reasonable quantification: see especially at p.181 (top right and the whole left column). A claimant who has received apparently sound and reliable advice may see no reason to challenge it unless and until he discovers that it has not been preceded by or based on the investigation which he instructed or expected. A claimant who has suffered financial loss in a transaction entered into in reliance on such advice may not attribute such loss to the advice unless and until he either makes the like discovery about the inadequacy of the work done, or at least discovers some respect in which the transaction was from the outset unsound giving him (as Hoffmann LJ said) prima facie cause to complain. Such a scenario may well occur where there are other causes of loss which appear to him capable of explaining the whole loss.”
- Important guidance on the proper approach to constructive knowledge under sub-section 10 was given by Arden LJ in Gravgaard v Aldridge & Brownlee [2005] PNLR 19. At paragraphs 20-23 or her judgment, with which Black J and May LJ agreed, Arden LJ said this:-
“20. There is, of course, an issue as to whether the court should, in determining whether it is reasonable to expect a person to seek legal advice, take into account the surrounding circumstances and any special characteristic or attribute of the claimant. Section 14A(10)) is silent as to the matters which the court must take into account and leaves such matters to the courts to work out. The test, however, is clearly objective. In my judgment, the court should take into account external surrounding circumstances, such as the significance of the issues to a reasonable person in the position of the claimant.
21. The more difficult issue is whether the court should take into account matters such as the fact Mrs Gravgaard already had her hands full because she was a working mother and wife and was struggling hard, as the Recorder put it, “to keep her financial head above water”. These factors could make it more difficult for her to get advice (though, as regards Mrs Gravgaard’s financial position, no one has suggested that if she had sought to do so in 1988 she would not have been entitled to legal aid if she otherwise met the conditions for such assistance). Although Mrs Gravgaard does not rely on these matters, a court could not fail to observe the difficulty of her position and to admire her success at juggling the many pressures on her. She has survived her ordeal with her home and marriage intact, and she had gone on to further education and to hold public office in local government. Mr Gravgaard’s business continues to trade.
22. Section 14A(10) does not state that a person’s knowledge includes knowledge “which a reasonable person might be expected to acquire” but rather that a person’s knowledge includes knowledge “which he [she] might reasonably be expected to acquire” (contrast s. 14A(7)). In my judgment, this choice of wording is significant. It means, in my view, that in general the court must have regard to the characteristics of a person in the position of the claimant, but not to characteristics peculiar to the claimant and made irrelevant by the objective test imposed by subsection (10). This conclusion is consistent with the general approach of section 14A. Section 14A attaches importance to the claimant having actual knowledge. Constructive knowledge applies only if the conditions of section 14A(10) are fulfilled. Moreover, as I pointed out earlier, section 14(10) does not automatically impute the knowledge of an expert instructed by a claimant to the claimant.
23. Applying the foregoing, the court is entitled under section 14A(10) to assume that Mrs Gravgaard would have been concerned to know the reasons for her mistake as to the consequences of the Deed of Gift: see Adams v Bracknell Forest BC [2004] 3 WLR 89 per Lord Hoffmann at [47] to [52]. In fact, Mrs Gravgaard’s outspoken reaction to the request by Lloyds to give the second charge and guarantees marks Mrs Gravgaard out as having a sharp appreciation of the situation, even in the autumn of 1988. Her reaction supports the point that she ought reasonably then to have taken legal advice.”
- Gravgaard is instructive in another respect. Mrs Gravgaard faced the loss of the family home, home to her, her husband and three small children. Arden LJ characterised this “very serious situation” as one in which it was reasonable to expect Mrs Gravgaard to have sought legal advice on her rights, albeit her rights against a bank involved in the relevant transaction rather than her rights against solicitors against whom ultimately she sought to proceed. Mrs Jacobs faced a serious, if not perhaps equally serious, situation in July 2009 as the fund of £65,000 represented a large proportion of the savings upon which she and her husband hoped to rely in retirement.
THE TASK OF THE COURT IN CONSIDERING S.14A
This is summarised at paragraph 29 of the judgment.
- The starting point of any enquiry whether a claimant can rely upon the special time limit made available by s.14A is to identify the damage in respect of which damages are claimed. The “knowledge” of which 14A speaks is in the first instance knowledge of the material facts about the damage in respect of which damages are claimed”
CONCLUSION: CASE WAS STATUTE BARRED AND CLAIMANT COULD NOT RELY ON s.14A
The Court of Appeal held that:-
- The claimant had acquired constructive knowledge by July 2009.
- By 2009 she knew the bond had decreased in value.
- The facts were ascertainable by the claimant asking direct questions or looking again at the product literature.
- She could have obtained advice which was easy to obtain and free.
- The loss had been suffered in 2005 when the “unsuitable” investment had first been taken out. The onus was on the claimant to establish that the starting date for the reckoning of the limitation period had been postponed. She failed to do this.
- The action was statute barred.