Blakemores LDP v Scott & Anor [2015]

In Blakemores LDP v Scott & Anor [2015] EWCA Civ 999 (07 October 2015) this matter was heard in the Court of Appeal before Lord Justices Moore-Bick, Underhill and Vos. The Court of Appeal had to consider whether Judge Simon Brown QC, in the High Court, Birmingham was correct in striking down the First and Third Defendant’s negligence claim’s against their solicitors because they had been issued over 3 years and, under sections 14A (5) and (6) of the Limitation Act 1980, obtained “the knowledge required for bringing an action for damages in respect of the relevant damage”.

The Claimants were a firm of Solicitors, now in administration. The issues in this case centred on two Solicitors in that firm, one of whom was a specialist in manorial law, applicable to the Defendants’ case and the other specialising in litigation who acts for the Defendants now with other Solicitors. The Claimants had acted for the Defendants on three different matters between March 2005 until 2012 concerning two Land Registry titles referred to as the “Lordship title” and the “Ireby Fell title”.

On the 9th May 2007 the Defendants and villagers made an application to close off both titles to amend an error under LRA 2002.   On the 27th April 2009 the Defendants entered into a CFA with the Claimants after they had run out of funds. The Deputy Adjudicator found that the Lordship title should be closed but not the Ireby Fell title, an appeal and further appeal was dismissed by the courts.

The Claimants issued a claim against the Defendants for £635,530.78 in respect of work carried out under the CFA.

The Judge considered the test to apply as to whether there should be summary judgment. He referred to Easy Air Limited v Opal Telecom Limited (2009) “the court should consider whether a claimant has a realistic rather than a fanciful prospect of success, and that a realistic claim was “one that carries some degree of conviction” and is “more than merely arguable”.

The Judge observed there had been a lack of consistency and concluded the court could not accept   “three paragraphs of a statement by a solicitor some five years after the event without recourse to contemporaneous notes” which evidence, he considered unreliable.

The Judge found two of the Defendants’ claim for damages were statute barred. In the other Defendant’s application, the claim form had been validly served. He could not anticipate whether the Defendant had a prospect of success to set aside judgment a year later.

The Defendants contended the judge should have referred to evidence from them and sought the Court’s permission to make new statements confirming their litigation Solicitor’s statement was a recollection of the events.

Lord Justice Vos in his lead judgment found there to be four main issues for the Court of Appeal to deal with:

  • Should the Judge have found the litigation Solicitor’s evidence in respect of the summary judgment application to have been unreliable
  • Was the Judge correct in finding that the firm’s failure to file the objection before the deadline was the “material fact about the damage” which the two Defendants should have knowledge of under sections 14(A)(5) and (6) of the Limitation Act 1980 with the time limits involved.
  • Should the Defendants new evidence be allowed.
  • Whether the default judgment against the Second Defendant should be set aside.

Lord Justice Vos considered the issues:

The first issue was, had the Judge been correct in dismissing the litigation solicitor’s evidence as unreliable on an application for summary judgment which he found had not been compatible with the defence and counterclaim.

Mr Justice Vos considered “What the judge did was not on the cusp of what was acceptable on a summary judgment hearing, it was well beyond it”.

The second issue was, had the Judge been correct in finding the “material fact about the damage” was the Claimant’s failure to file the objection before the deadline.

Lord Justice Vos considered that it was still possible for the judge “to decide on the basis of all the evidence that, as a matter of law, the starting date for limitation purposes for Ms Scott at least was in April 2009”.

Lord Justice Vos noted that the Judge had considered that “the relevant “damage” for the purposes of section 14A (5)-(7) was the firm’s failure to file an objection to the registration of the titles before the deadline”.   He disagreed with this approach as from his understanding of the requirements under section 14A(5), the date is the earliest time the Claimant has the knowledge to bring the action for damages and the right to bring that action.

Lord Justice Vos questioned “whether knowing simply that the firm had been negligent in not advising that the objection should be filed before the deadline was enough to lead a reasonable person to consider it sufficiently serious to justify his instituting proceedings for damages”.

He considered the Judge to be incorrect in finding the “material fact about the damage” as being due to the Claimant’s failures to file the objection within the time limit.

He considered there to be two reasons why this did not rest on negligent advice or failure to file within the time limit imposed. His first reason was that the Defendants were not experts in Land Registration or Manorial law and secondly the facts had to lead to what a reasonable person would believe to be serious enough for bringing proceedings for damages “against a solvent firm, not disputing liability”.

He believed the judge was incorrect to find, as a matter of law, that what was pleaded in the defence and counterclaim put the starting date, under the Limitation Act, as April 2009. Lord Justice Vos considered only a trial of the facts could decide that aspect.

Lord Justice Vos’s third and fourth issue considered whether the new evidence from the Defendants should be admitted on the appeals. He found the evidence to be credible and admitted paragraphs 8-15 of the Second Defendant’s statement and allowed the default judgment against him to be set aside.

Claimants Counsel had contended that the delay had been excessive between that particular Defendant having knowledge of the judgment and the application being made.

Lord Justice Vos considered the delay was serious enough to be significant but there was a reasonable excuse for the delay. He observed that the particular Defendant’s personal difficulties would have been overwhelming with him facing a charging order over his former matrimonial home of £627,000. He believed the Defendant had acted reasonably in attempting to locate his former Solicitor and applying for the judgment to be set aside. He had behaved with reasonable promptness taking into account the time lapse since the judgment.

Lord Justice Vos applied the test in the third stage of Denton concluding that the default judgment should in this case be set aside. He believed the delay was excusable with the Defendant’s special circumstances and it would be unjust for the judgment to stand against him whilst his co-Defendants were allowed to proceed with their defence. He considered the Judge had been wrong to refuse to set aside the default judgment against him.

He concluded that he would allow both appeals and set aside the Judge’s orders for the default judgment in the above and the summary judgment against the other two Defendants with Lord Justices Underhill and Moore-Bick in agreement.

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