A barrister who cannot be sued for initial advice to a housing client for limitation reasons can be sued for a later, overlapping piece of advice on the same case, the Court of Appeal has ruled.
Lord Justice Coulson said that, in a case where there are two (or more) allegedly negligent advices, and therefore two separate breaches of duty, “there is no general principle of logic or common sense which requires any sort of ‘relation back’, such as to say that the limitation period was triggered by the first occasion on which the negligent advice was given, regardless of any subsequent breaches of duty”.
Here he found barrister Marc Beaumont’s allegedly negligent advice in October 2011 was “different in nature and extent” to advice he gave earlier that year, meaning the claim – albeit for lesser loss and damage – did not relate to a single piece of advice and so was not statute-barred.
He said Mr Beaumont was being asked to “give different and more comprehensive advice, in very different circumstances” to legally aided housing client Lillo Sciortino in October 2011.
Although “there was an overlap” with the advice provided in spring 2011, “there were also significant differences in the nature and scope of the advices provided and the material available for consideration on each occasion”.
The court heard in Sciortino v Beaumont  EWCA Civ 786 that Mr Sciortino was made bankrupt in June 2007. His house in Surrey vested in his trustee in bankruptcy who, three years later, applied to Kingston County Court for orders for possession and sale of the property.
The orders were made by the court in March 2011, with Mr Sciortino assisted by a McKenzie Friend.
He later went to Kingston and Richmond Law Centre, which instructed Mr Beaumont to advise on the prospects of an appeal. He gave advice in conference with Mr Sciortino “on a wide range of issues”.
Coulson LJ said Mr Beaumont’s strategy was to obtain permission to appeal and attempt to settle the case before the appeal hearing.
However, “through no fault of his own”, that was unsuccessful because Mr Justice Vos (as he then was) gave directions for the permission to appeal application and substantive hearing to be heard together.
On 26 October 2011, Mr Beaumont gave written advice for the rolled-up hearing that remained positive about the chances of success.
At the hearing the following month and a later one in October 2012, attempts to set aside the possession order failed and the house was sold by the trustees in bankruptcy in 2013.
Mr Sciortino issued a claim form alleging professional negligence on 25 October 2017.
Coulson LJ said the allegations were based, “without any distinction made between them”, on the advice given by Mr Beaumont in April/May 2011, and the written advice of 26 October 2011.
“This was perhaps unwise, given that a quick glance at the dates would have shown that the claim form was issued more than six years after the advice of April/May 2011, but (just) within six years of the written advice of 26 October 2011”.
Coulson LJ said that, “without setting out all the particulars, the essence of the complaint is that the respondent’s advice was negligently optimistic”.
Both Master Teverson and His Honour Judge Jarman in the High Court ruled that all parts of the negligence claim were statute-barred. HHJ Jarman said the “pattern of advice in respect of the prosecution of the appeal was continuous” from April to October 2011.
However, Coulson LJ rejected the argument of counsel for Mr Beaumont that the October advice was “merely confirmatory” of earlier advice.
“It was a separate and full advice on the merits that took into account a raft of material that had not previously been considered by the respondent.”
He went on: “The claim in respect of the first advice is statute-barred, and so there will be elements of the costs of the appeal against the possession and sale orders which the appellant incurred and which he will not be able to recover from the respondent.
“But there is no reason in law to conclude that the claim in respect of the second advice is statute-barred: it simply gives rise to a separate, albeit smaller, claim.”
Coulson LJ allowed Mr Sciortino’s appeal and rejected an application by Mr Beaumont for summary judgment, if the appeal on limitation was allowed, on the grounds he had not been negligent. Lord Justices Stuart-Smith and Newey agreed.
In a statement, Clyde & Co, which represents Mr Beaumont, said: “The judgment relates to an interlocutory application.
“The case concerns matters arising some 10 years ago and there has been no finding of negligence. The judgment largely concerns an issue under the Limitation Act 1980. Our client will continue strongly to defend the claim.”