Analysis
The claimants (P) were the beneficiaries under their parents’ will. The first respondents Hewetts, solicitors (H) were retained to advise and act for P in the administration of their parents’ estates. The second respondent, Christopher Fuller (F) was employed by H as a legal executive. F was instructed by P in 1998 in relation to a sale of P’s parents’ property. Unknown to P at the time, F carried on business as a property developer through Exnine Developments (E) and recommended that P sell the property for £190,000 to Sahana Enterprises Ltd (S), which had agreed to pay E a share of the future profit or a fee as a result of the sale. Soon after the sale, P discovered that the property’s true value was £350,000 and wrote to the Office for the Supervision of Solicitors in November 2000 about H and F’s conduct, setting out their grounds for suspicion about the sale. The OSS replied on 5 December 2002 detailing F’s relationship with E and confirming that E had received a payment from S. On 30 January 2003, the OSS sent P a copy of the agreement between E and S. P brought a claim against H and F for an account and payment of profits made by them as a result of their retainer in 1998, and for compensation for breach of fiduciary duty and dishonestly assisting a breachof trust and damages. P’s solicitor stated that the claim form with documents was sent to the court on 3 December 2008, but the claim form was issued on 17 February 2009 by way of a photocopy of the originals as it seemed the court had mislaid them.
The defendants applied for summary judgment on the basis that the claim form had been issued out of time and, as such, P was time-barred from issuing the claim. The master held that P’s letter to the OSS showed that he knew enough to start time running ‘in respect of the breach of retainer/negligence claim… in other words at least the gist of the claim for damages for causing the property to be sold [at] an undervalue…’ and that time began to run for the purposes of those common law claims on about 23 November 2000. The master also found that on receipt of the letter dated 30 January 2003, which he took to have been received by 6 February 2003, P had all the material facts necessary to form a claim against H and F and granted summary judgement, stating that he was satisfied on the balance of probabilities that the claim form did not reach the court office in time.
P appealed submitting that:
- (1) H and F held any secret profit on constructive trust for P and there was therefore no limitation period by virtue of the Limitation Act 1980 s21(1)(b);
- (2) H and F deliberately concealed some of the facts necessary to P’s rights of action until P received a copy of the agreement between E and S, which was at the latest 17 February 2003, so that under s32(1) of the Act the six-year limitation period did not start to run until then; and
- (3) by virtue of CPR PD 7A para 5.1, the claim was brought on 6 December 2008 when on a balance of probabilities the claim form was received in the court office, and was within time.
The High Court upheld the decision of the master and P again appealed.
Held
Appeal allowed subject to striking out the claim for the undervalue [39-41]. If, at trial, the claimants established that the claim form was delivered in due time to the court office, accompanied by a request to issue and the appropriate fee, the action would not be statute barred. On the facts, both the master and the judge were wrong to reject the evidence relating to the start of proceedings. This was an application for summary judgment. On such an application, the court must consider not merely the current state of the evidence but also what evidence might reasonably be expected to be adduced at trial. The master applied the ‘balance of probability’ test on what was, after all, a summary application, rather than the trial of a preliminary issue.
The main area of debate before the judge (as it had been before the master) was whether ‘the claim form as issued’ referred to in PD7 para 5.1 must be the same piece of paper as that received in the court office within the statutory limitation period. Both the master and the judge held that it must, with the consequence that P could not rely on the ‘lost’ claim form as bringing forward the date on which the action was brought. That was the wrong subject matter to debate. When an action was ‘brought’ for the purpose of the Limitation Act 1980 was a question of construction of the Act. It was not a question of construction of the CPR, let alone a question of construction of a practice direction. The words ‘apply to the court’ in the Act meant ‘doing all that is in your power to do to set the wheels of justice in motion according to the procedure that is laid down for the pursuit of the relief which you are asking’, and the underlying theme was that a would-be litigant was not responsible for any shortcomings of the court.
JUDGMENT LORD JUSTICE LEWISON : [1] On 29 September 2011 Ms Susan Prevezer QC, sitting as a deputy judge of the Chancery Division, dismissed an appeal from Master Bragge giving summary judgment against Messrs Anthony and Terence Page, the claimants, on the ground that their claim was statute barred and therefore bound to fail. With …Continue reading "Page & anr v Hewetts Solicitors & anr [2012] EWCA Civ 805"