£1.274m professional negligence claim against Birmingham-based firm out of time

A professional negligence claim against a Birmingham firm has been thrown out after a High Court judge found it was out of time.

Ellen Kay brought a claim against Martineau Johnson, arguing that the firm was negligent in the advice it provided over her divorce settlement.

The professional negligence claim related to damages Kay allegedly suffered under the terms of a settlement reached in 2008. Martineau Johnson, then known as Shakespeare Martineau, acted for Kay in her claim for ancillary relief.

The settlement, reached at a financial dispute resolution hearing, provided that Kay was to receive proceeds of sale of a former family home, a £4,000 lump sum for spousal maintenance and 80% of any sums yielded from a claim against builders who had done work on the home. The settlement constituted a ‘clean break’, meaning she had no further rights to ongoing maintenance, capital, or pension provision.

Kay claimed the advice given by the firm through its then-partner Mary Kaye, that she should agree a clean break, was negligent. She also allegedthat the firm was negligent in failing to advise her, or to do so adequately, on evidence, strategy, settlement options and funding options in relation to the ancillary relief proceedings.

Kay, who has sat as a magistrate, claimed £1,274,000 in damages.

The firm denied all allegations and said its advice in relation to the settlement was ‘perfectly reasonable’. The firm’s retainer ended in 2009. It said Kay had ‘requisite knowledge for the [three] year limitation period under section 14A  [of the Limitation Act 1980] to commence by the time she dis-instructed the firm’.

The primary limitation period of the claim expired on 25 April 2014, the judgment said. Kay argued she ‘did not acquire the requisite trigger knowledge for section 14A purposes until May 2020’, so the claim issued in March 2023 ‘was issued within the alternative [three] year period provided for by the section’.

His Honour Judge Russen KC, sitting as a judge of the High Court, said he was ‘satisfied on the evidence, including her own, that Ms Kay had actual trigger knowledge by no later than the end of 2009’.

He added: ‘If she did not have actual knowledge by that stage then she should be attributed with constructive trigger knowledge. Even if that had not been the case then my finding would have been one of constructive trigger knowledge by no later than the end of 2018. Either way, a claim issued in March 2023 cannot be justified by reference to section 14A.’

Jamie Hall, instructed by Harrison Clark Rickerbys, represented Ellen Kay. Martineau Johnson was represented by Simon Wilton KC, instructed by Travelers Legal.