Lightning Doesn’t Strike Twice in Landmark Solicitor’s Negligence Case on Limitation – Mitchell v Leigh Day
May 2025A High Court judge’s decision to refuse an application for reverse summary judgment in Mitchell v Leigh Day (A Firm) [2025] EWHC 1081 (KB) (06 May 2025) provides an insightful analysis of limitation in professional negligence cases, specifically against solicitors, with particular consideration given to the interpretation of actionable damage in tort and contract. This case highlights how limitation is a highly fact-sensitive legal principle.
Background
- Underlying Claim
In 2013 Dorne Mitchell (the “Claimant”) instructed Leigh Day (the “Defendant”) to pursue an action for clinical negligence against providers of medical treatment she received in the United Arab Emirates (“UAE”) whilst pregnant. She alleged that such treatment resulted in the ‘wrongful birth’ of her severely disabled daughter. The Claimant sought damages of £26million, including interest.
The claim necessitated cross border litigation as documents needed to be processed in both the UAE and the UK. Such jurisdictional nuances led to delays which culminated in the claim failing to be served by the deadline for service on the 10 December 2016. The claim was, in turn, struck out.
- Professional Negligence Claim
The Claimant made a claim in tort and contract for damages for losses allegedly caused by the professional negligence of the Defendant in allowing her high value clinical negligence claim to be struck out for failure to serve the claim form within the limitation period.
The Particulars of Claim (“Particulars”), provided details of the alleged breaches concerning how the Defendant failed to move the claim forward with reasonable speed, and how it delayed getting the claim form to the High Court’s foreign process service and legalised at the UAE embassy, in the run up to the deadline for service on 10 December 2016.
Reverse Summary Judgment Application
Not only did the Defendant refute all claims, it also made an application for reverse summary judgment (the term generally used when a defendant, not a claimant, brings such an application) arguing that the Claimant’s claim against it was time-barred under the Limitation Act 1980 and therefore the Claimant had no real prospect of succeeding on the claim at trial and that there was no other compelling reason for the case to be disposed of at trial.
The application was heard before Master Stevens (the “Judge”) in the High Court who was primarily tasked with considering the issues around limitation and the trigger date for actionable damage, in deciding whether the claim was indeed statute-barred. She said ‘It is often said colloquially that lightning does not strike twice. I am asked by the [firm], through this application, and in the interests of justice, to trigger that second lightning bolt against the claimant and enter summary/reverse judgment on her claim.”.
The Judge considered limitation principles in both contract and tort (acknowledging how limitation periods are sometimes longer in tort than contract).
The Limitation Act 1980 specifies that a claimant must initiate legal action within six years of sustaining damage in tort claims and similarly within six years of a breach in contract claims.
The parties disagreed on when the damage was suffered. To understand this element fully, a brief chronology and review of the agreed factual background is provided, as follows:
Between 2013-2015 the Claimant instructed the Defendant to act, and investigations were commenced. In July 2015 the Defendant i) issued proceedings in England against UAE defendants; and (ii) applied for an extension of time for service until 10 December 2016, which was granted two months later. Thereafter ensued a series of delays including document preparation, fee payments and lodging the correct documents overseas. The Defendant applied for a second extension until 10 June 2017 which was granted but then set aside on 12 July 2017. In February/April 2017, the Claim Form was served. The first extension was allowed to remain in force; therefore, the deadline for service expired on 10 December 2016.
Both the Claimant and the Defendant entered into a standstill agreement between 2 December 2022 until 9 June 2023. However, the Claimant instructed new solicitors and issued a Claim Form for its professional negligence claim against the Defendant on 7 June 2023. The Particulars were served on 6 July 2023 and included the allegations relating to the series of delays mentioned above.
The Judge therefore had to consider at what point the actionable damage occurred, i.e. the time at which the Claimant lost something of value as a result of the Defendant’s alleged negligence.
The Defendant maintains that ‘irreparable damage’ had occurred to the Underlying Claim in October 2016, (referencing the incidents relating to delay specified in the Claimant’s Particulars), and in any event before 2 December 2016 (six years before the start date of the standstill agreement), and not at the date of the expiry of the first extension deadline, and thus the claim against it was statute barred.
The Claimant argued that the breach occurred on 10th December 2016 – the missed deadline for service – and thus the claim was brought within the limitation period under the standstill agreement. It also asserted that the limitation period could not be separated from an assessment of the alleged duty by the Defendant.
Held
In short, the Court dismissed the Defendant’s application for summary judgment and found that, as no settled law could be applied, the Claimant’s case should proceed to trial as there were factual inquiries needed to determine when exactly the actionable damage occurred and whether the claim was indeed time-barred. Therefore, the Judge could not conclude that the Claimant had no realistic prospect of success on the limitation point at trial.
The Judge found that, contrary to the Defendant’s assertions, each particularised breach made in the Particulars was “not an allegation of damage being caused to the claim at the time of breach; they are allegations of sub-standard professional conduct. Anyone who has worked in a solicitors’ office will be aware that standards may on occasion be breached, but the situation can be totally salvaged, such that no damage is caused. My interpretation of the Particulars is that it builds a picture of serial failures but the actual damage is pleaded as caused at the expiry of the extension deadline when the situation is no longer fixable and thus damage occurs”.
The Court reviewed several authorities on the timing of actionable damage, including Khan v Falvey, Hatton v Chafes, Polley v Warner, Cohen v Kingsley Napley, Berney v Saul and Holt v Holley & Steer Solicitors and concluded “I am bound to say that I cannot find there is no realistic prospect of the Claimant succeeding in their opposition to that novel argument. I also believe it needs further factual enquiry. The authorities which I have reviewed in detail emphasise how fact sensitive the cases on limitation are”.
The Judge also noted how the authorities generally seek to uphold the overriding objective by enforcing compliance with rules or orders and ensuring the good administration of justice.
Commentary
The judgment provides a useful summary of the application of the laws of limitation for those practitioners engaged in professional negligence cases, especially where contending with tightly regulated deadlines enforced by the courts.
The decision emphasises how fluid the interpretation of limitation dates and actionable damage can be and how acutely dependent such analysis is on the facts of the case, which the courts will find necessary to consider in detail. As the Judge said in this case: ”although the Defendant has asked me to consider all facts as proven for the purposes of the application, that seems to me problematic, when not all acts or omissions may cause damage; they may evidence a general disregard for proper process but causation of damage or the final breach which makes the fixable become non-fixable, seems to me to be something requiring factual inquiry”.
Luckily for the Claimant, on this occasion, the Judge did not trigger the second procedural lightning strike against the claim at summary judgment, and we await with interest the outcome of the trial on limitation and applicable law issues set for later this year.
Want to know more?
Beale & Co have extensive experience advising solicitors and their insurers with respect to potential or active professional negligence claims. If you are interested in discovering more about the issues covered above or wish to understand how these apply to your contracts or business practices, please contact Joe Bryant.
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