Negligence, limitation of action

Citation

Lee, R. (2001), "Negligence, limitation of action", Property Management, Vol. 19 No. 5. https://doi.org/10.1108/pm.2001.11319eab.002

Negligence, limitation of action

Negligence, limitation of action

Tucker & otrs v Allen & otrs [2001] EG 161 (CS)

In June 1987 the claimant instructed the defendant solicitor to act in the purchase of a paddock and cottage. The only access to the paddock was over an access road on property belonging to a farm owned by a company. The response to the solicitor's enquiry about access was unclear stating merely that "… the vendors believe that access from the road … to the paddock is a public footpath". On the strength of this the defendants informed their client that the access was available and completion took place on 5 May 1988. The claimant subsequently built two stables and a barn on the paddock.

The defendants later learned from the council that there was no public right of way over the access road. However, they did not admit this to the claimant and merely advised them that the company was disputing their right to use the farm access to the paddock and that they had a strong right to claim a private right of way based on prescription or the assertion of a way of necessity.

After unsuccessful correspondence with the company, the defendants wrote to the claimant suggesting that they might like to instruct another solicitor if they had any doubts about the defendants continuing to act for them. The claimants originally brought proceedings against the company through the defendants but eventually, in September 1994, they instructed new solicitors. It was only then that they discovered that their action against the company had been struck out for want of prosecution.

In March 1998, well outside the normal time limits, the claimant brought action through their new solicitor for negligence and breach of contract. The defendant claimed that there was no deliberate concealment of "any fact relevant to the plaintiff's right of action" to justify an extension of the normal time limits in s32 Limitation Act 1980.

The judge held that the defendants had failed to exercise proper skill and care when attending to the conveyance of the two properties. With regard to s32 of the Act the judge applied two previous cases on the issue of concealment: Brocklesby v. Armitage & Guest [2001] 14 EG 150 which was applied in Liverpool Roman Catholic Archdiocese Trustees Inc v. Goldberg (No. 1) [2001] 1 All ER 182 and Cave v. Robinson Jarvis & Rolf [2001] EGCS 28 (See Legal Update in Property Management Vol. 19 No. 3). The principle in these cases was that by s32 of the Act a deliberate breach of duty committed in circumstances where it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach. As long as the acts were intentional it is immaterial whether the defendants were unaware of their legal consequences. The defendant's breach in this case was the failure to inform the claimants that the right of access they assumed to exist had not been properly investigated. Furthermore they were in breach of their duty in para 13.04 of the Law Society's Guide to the Professional Guidance of Solicitors (1990 ed.) in failing to advise the claimants to seek independent advice (and to cease to act if they declined to do so) as soon as they discovered an act or omission that would justify the claimants in making a claim against them. The limitation plea was rejected.