This law report was contributed by law firm Berrymans Lace Mawer.
Berney v Thomas Saul (t/a Thomas Saul & Co (solicitors))
Court of Appeal, 5 June 2013
The claimant, Berney, instructed the defendant solicitors, Thomas Saul & Co, in relation to a road traffic accident. They issued proceedings in 2002 and served the claim form, but failed to prepare or serve proper particulars of claim.
In 2004, Berney instructed new solicitors who advised, given the failure to serve particulars, that the claim was likely to be struck out. She settled the claim on 1 November 2005.
On 10 January 2011 she issued proceedings against Saul & Co alleging that, due to their negligence, she had been constrained to accept a low settlement.
The relevant six year limitation period runs from when the claimant suffers a loss. Saul & Co maintained that this occurred when there was a "real risk" that the claim would be struck out, which arose well over six years before issue of proceedings.
Berney argued that the loss only occurred when the claim was settled on 1 November 2005.
The Court of Appeal found that the claim was brought in time. They agreed with Saul & Co that the loss occurred when there was a "real risk" that the claim would be struck out. However, on the facts there was no real risk of that before at least 25 January 2005.
This decision is of particular interest to those defending claims against solicitors. The finding that the loss occurs when there is a "real risk" that the claim would be struck out is generally likely to be of more assistance to defendants seeking to argue that a claim is time barred, rather than to claimants.
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