Soole: Issues suitable for determination at trial
A High Court judge has rejected a barrister’s appeal against a ruling that a negligence claim against him should not be struck out on limitation grounds.
Mr Justice Soole stressed that his decision was “simply that the limitation issue is fit for trial, not for summary disposal” and “in no way binds the parties” as to the arguments they could raise.
Litigant in person Anna Christie has sued both Andrew Dymond and the Mary Ward Legal Centre in London for negligence relating to advice on her defence against forfeiture proceedings, after she failed to pay service charges on her council flat near the Shard in London.
Master McCloud ruled in July last year that Ms Christie was not statute-barred from suing the law centre and barrister for professional negligence.
The judge had previously ruled that the claim against the law centre should be struck out on the grounds that it had relied on advice obtained from a specialist barrister, Mr Dymond, which amounted to a complete defence.
However, this decision was overturned last month at the High Court by Mr Justice Turner, who said the law centre had “at least arguably held themselves out as having specialist expertise in housing and debt”.
Southwark Council obtained judgment for over £10,800 in service charges and interest against Ms Christie in January 2012 and later that month served notice under section 146 of the Law of Property Act 1925 requiring payment.
Relying on the notice, the council issued forfeiture proceedings in April 2012, which it discontinued, before issuing a second section 146 notice and second claim of forfeiture in October 2012.
The law centre instructed Mr Dymond that month to advise on the merits of defending the claim on the grounds that the council had waived its right to forfeiture having accepted certain payments from Ms Christie.
Mr Dymond advised in writing in November 2012 that he did not consider that the court would find waiver, and Ms Christie could apply for relief from forfeiture, but only if she paid the total sum owed of just over £14,000.
The barrister advised that “the prudent course would be to seek an adjournment of the proceedings in order to sell the flat” and pay the outstanding amount, the judge recorded.
The proceedings were adjourned by April 2013, when Mr Dymond ceased to be involved. Sale of the flat completed by the end of July 2013, and the service charge arrears were paid from the proceeds.
Ms Christie launched negligence proceedings on 15 July 2019, arguing that Mr Dymond should have advised that the council had waived its right to forfeit and his advice to sell the flat was negligent. She sued for the loss of her right to seek relief by way of loan or charge against the property.
Mr Dymond applied for a strike-out of her claim on limitation grounds. Describing the running of time in professional negligence actions as “very fact sensitive”, Judge McCloud rejected this application last summer, ruling that time started running when the contracts for sale of the flat were exchanged at the end of July 2013.
She held that neither the earlier costs’ orders nor her costs of sale started time to run at an earlier date.
Mr Dymond appealed, arguing, among other things, that the judge was “wrong to take no account of the items of damage suffered outside the limitation period”, such as the conveyancing costs and the diminution in value of her claim for relief from forfeiture.
Soole J said it was “not clear from the evidence” that Ms Christie had incurred liability for conveyancing costs before 15 July 2013.
He also rejected the argument that the judge was wrong to conclude that there was a real prospect of establishing before 15 July 2013 that there was no diminution in value of Ms Christie’s right to seek relief for forfeiture. “In any event, diminution in value is a matter for evidence at trial, not assertion.”
Soole J said the hearing before Judge McCloud was “not the trial of a preliminary issue on limitation”, but whether “by reason of the limitation defence advanced, the claim should be struck out as disclosing no reasonable grounds for bringing the claim”.
He agreed with Judge McCloud’s conclusion that “Ms Christie’s resistance to the limitation defence must go to trial” and dismissed the barrister’s appeal.
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