Accident victim's negligence action against solicitor not time-barred

An accident victim was not out of time to sue her solicitor for negligence, the Court of Appeal has ruled.

The court heard that Susan Berney's car was hit from behind as she slowed down at a roundabout, injuring her neck and back, in April 1999.

She instructed Thomas Saul & Co, based in Manchester, the following month, to act for her on a conditional fee basis, and they notified the other driver's solicitors, DWF, in June.

However, Lady Justice Gloster said the claim "proceeded at extremely leisurely pace" and it was not until April 2002, "after further prompting from DWF", that a claim form was issued.

"The claim form, however, named the wrong defendant, Mr Liddell, the owner of the vehicle, as the driver, as opposed to Mrs Liddell, who was in fact the driver at the time of the accident.

"The claim form stated that damages were 'limited to £50,000'. The particulars of claim were not attached to the claim form."

Delivering judgment in Berney v Saul (t/a Thomas Saul & Co solicitors) [2013] EWCA Civ 640, Gloster LJ said the defendants accepted service of a claim form in the correct name in August 2002, even though it was out of time.

The case was eventually settled for £25,000 on 1 November 2005, confirmed in a Tomlin order the following February.

Gloster LJ said that in the period which followed Berney said she was "extremely ill, and suffered from a very serious deterioration in both her physical and mental health".

Acting in person, Berney issued a negligence claim against Thomas Saul & Co on 10 January 2011, in the particulars of claim stating that the sum claimed was 'not exceeding £250,000'.

The law firm responded by applying for summary judgment or arguing alternatively that the claim should be struck out under the Limitation Act 1980.

Brighton County Court dismissed the claims, as did the High Court, but permission was granted for Berney to appeal.

Lady Justice Gloster concluded that her appeal against striking out should be allowed, on the grounds that her cause of action in negligence accrued on 1 November 2005, at the date of the settlement of the RTA claim.

She added: "Whether Ms Berney will be able to establish at trial the necessary causative link between what she alleges was the respondent's negligence and the £25,000 she contends she was forced to accept by way of settlement, or whether she will be able to prove, on the balance of probabilities, that, if the case against Mrs Liddell had proceeded, she would have been able to recover more than that sum, are not matters upon which it is appropriate for this court to express any view."

Lord Justice Moses also allowed the appeal, but on the slightly different grounds that "actual damage only arose after 25 January 2005", when DWF withdrew its assurances that it would not raise the matter of the delay.

Lord Justice Rimer agreed that the appeal should be allowed, for the reasons given by Moses LJ.