An accident victim has been given leave to sue her solicitor for negligence some fourteen years after the initial incident by the Court of Appeal. The case highlights the risk of historic negligence claims coming back to haunt solicitors and their professional indemnity insurers many years after the event.

The The case centres on Susan Berney, who was injured in a road traffic accident when her car was struck from behind in April 1999.  She instructed solicitors Thomas Saul & Co, based in Manchester, on a conditional fee basis.  Her claim “proceeded at an extremely leisurely pace” according to appeal judge Lady Justice Gloster with the claim form not being issued until April 2002.  It was also issued in the wrong name and particulars of the claim were not attached.

Mrs Berney eventually instructed new solicitors and her claim was settled for £25,000 in 2005.  Her award was said to have been reduced as it was likely to be struck out for delay.

In 2011 Mrs Berney brought a claim against Thomas Saul & Co on the grounds that she would have recovered far more in damages had her claim been dealt with properly.  The solicitors argued that the claim was time-barred and should be struck out under the Limitations Act 1980.

Her case was initially dismissed by the County and High Courts, but Mrs Berney was granted leave to appeal on the grounds that her claim ran from the date that her RTA claim was settled in 2005.  The Court of Appeal agreed, freeing the way for Mrs Berney to sue her solicitor for negligence.

This case highlights a number of issues for solicitors,” said James Burgoyne, Director, Brunel Professional Risks.  “First that it is essential to get matters right first time – had Mrs Berney’s original solicitors had effective risk management controls in place the mistakes that led to the claim would never have occurred.  It also highlights the dangers of relying on time-bars to escape claims of negligence.  Both solicitors and their professional indemnity insurers will be very aware that cases can come back very many years after the original incident.”

The Berney case has been reported by Solicitors Journal, and by law firm Trethowans.