Kay v Martineau Johnson: when does time begin to run under section 14A for solicitor negligence claims?

The Court of Appeal's judgement in Kay v Martineau Johnson offers important guidance on the operation of section 14A of the Limitation Act 1980 in professional negligence claims against solicitors — in particular, on the boundary between actual and constructive knowledge, the scope of the proviso to section 14A(10), and whether impecuniosity can justify delay in seeking expert advice.

Ms Kay's ancillary relief proceedings concluded in 2008 by way of a consent order providing for a clean break settlement. She was dissatisfied almost immediately, returning to Martineau Johnson in late 2008 and again in 2009 to enquire whether the settlement could be reopened. The firm advised on both occasions that it could not. Their retainer ended in June 2009.

Some years later, prompted in part by evidence of her former husband's apparent wealth, Ms Kay obtained counsel's advice on the possibility of reopening the settlement. In May 2020, counsel advised that no such application would succeed but indicated that a claim against Martineau Johnson might lie. Proceedings were issued in March 2023. The firm argued the claim was statute-barred. A preliminary issue was tried and determined in Martineau Johnson's favour by HHJ Russen KC, sitting as a High Court judge. Ms Kay appealed.

Actual knowledge in 2009

The Court of Appeal unanimously held that Ms Kay did not have actual knowledge satisfying sections 14A(6)–(8) by the end of 2009. Newey LJ, applying Haward v Fawcetts [2006] UKHL 9, found that whilst it was reasonable for Ms Kay to seek expert advice about her settlement, there was no "something more" which would have caused her to question whether the advice she had received from Martineau Johnson was itself deficient. The advice remained "apparently sound and reliable". The mere fact that a settlement has proved unsatisfactory does not, of itself, constitute the kind of attribution required to start time running.

Males LJ offered a complementary analysis, preferring to assess the question directly by reference to the statutory language rather than asking whether the claimant had "some reason" to consider the advice wrong — a formulation he regarded as risking a blurring of the line between actual and constructive knowledge. On the facts, it was clear that Ms Kay had no such suspicion in 2009, and that finding was fatal to actual knowledge.

The proviso to section 14A(10): constructive knowledge in 2009

Here the judges diverged. Newey LJ concluded that Ms Kay could rely on the proviso. Having reasonably returned to Martineau Johnson to seek advice — a course sanctioned by Gosden v Halliwell Landau [2020] EWCA Civ 42 — and having received unequivocal advice that the settlement could not be challenged, she was not obliged to seek further independent advice specifically directed at whether Martineau Johnson had been negligent. It was reasonable to assume the firm would have flagged any such possibility themselves.

Males and Lewis LJJ disagreed. In their view, the Judge's findings supported the conclusion that by June 2009 Ms Kay knew enough to trigger an obligation to investigate whether her predicament was attributable to fault on the part of her solicitors. Having not done so, she had not taken "all reasonable steps", and constructive knowledge ought therefore to be attributed to her from that point. The claim was accordingly time-barred on this basis.

Impecuniosity and section 14A(10)

All three judges agreed that impecuniosity is unlikely ever to be a material consideration under the objective test in section 14A(10). The test is "mainly objective", and a claimant's personal financial circumstances are ordinarily irrelevant as a characteristic "peculiar to the claimant". Even accepting that impecuniosity might in rare cases be material, the evidence here fell well short of establishing it: Ms Kay had not provided detailed financial evidence, had received significant financial support from her partner, and her own oral evidence suggested the delay was attributable to a lack of urgency rather than a lack of funds. The claim was time-barred in any event by the end of 2018.

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