Boyd v Pickersgill and Le Cornu

JurisdictionJersey
CourtCourt of Appeal
JudgeSouthwell, Beloff and Sumption, JJ.A.:
Judgment Date30 September 1999
Date30 September 1999
COURT OF APPEAL
Southwell, Beloff and Sumption, JJ.A.:

The appellant appeared in person.

R.J. Michel for the respondents;

P. Matthews as amicus curiae.

Cases cited:

(1) Cartledge v. E. Jopling & Sons Ltd., [1963] A.C. 758; [1963] 1 All E.R. 341; [1963] 1 Lloyd's Rep. 1; (1963), 107 Sol. Jo. 73, considered.

(2) Hawkins v. Clayton (1988), 164 C.L.R. 539; 78 Aust. L.R. 69; 62 ALJR 240, considered.

(3) Invercargill C.C. v. Hamlin, [1996] A.C. 624 ([1996] UKPC 56); [1996] 1 All E.R. 756; [1996] 1 NZLR 513.

(4) Maynard v. Public Servs. Cttee., 1995 JLR 65; on appeal, sub nom. Public Servs. Cttee. v. Maynard, 1996 JLR 343, followed.

(5) Moore (D.W.) & Co. Ltd. v. Ferrier, [1988] 1 All E.R. 400; [1988] 1 W.L.R. 267; (1988), 132 Sol. Jo. 227, considered.

(6) Purdie v. Bailhache & Bailhache, 1989 JLR 111.

(7) Reynolds (R.J.) Tobacco Co. v. Hudson (1963), 314 F. (2d) 776.

(8) Searle (G.D.) & Co. v. Gunn, [1996] 2 NZLR 129.

Additional cases cited by counsel:

Ampthill Peerage Case, [1976] 2 All E.R. 411.

Morton (née Champion) v. Paint, Guernsey Court of Appeal (Civil Division), February 9th, 1996, unreported.

Texts cited:

Chitty on Contracts, 27th ed., vol. 1, para. 28-201, at 1334 (1994).

Domat, Loix Civiles, vol. 1, Des causes qui empêchent la prescription, sect. V, at 235-236 (1777).

Halsbury's Laws of England, 4th ed., vol. 28, para. 864, at 446-447.

Jackson & Powell on Professional Negligence, 4th ed., para. 1-134, at 74 (1997).

Poingdestre, Les Lois & Coutumes de Jersey, at 48-54 (1928).

Terrien, Commentaires du Droict Civil, at 316-321; 331-332; 334-338 (1578).

Limitation of Actions—contract actions—suspension of limitation period—not necessarily suspended by ignorance of cause of action but may be if ignorance reasonable in circumstances, e.g. practical impossibility of knowing existence of cause of action or existence of facts giving rise to cause of action—promptness of bringing action once known irrelevant

Limitation of Actions—contract action—start of limitation period—reasonable discoverability—arguable that cause of action arises only when plaintiff knew or ought reasonably to have known of existence of cause of action or existence of facts giving rise to cause of action

The appellant brought an action against her former legal advisers for negligence and breach of contract.

The appellant had been involved in long-running legal proceedings against her former husband. She claimed that her then legal advisers, the respondents, had failed to inform her that she had a right to bring an action en licitation to protect her interests in matrimonial property and that as a result she suffered loss. The appellant brought the present proceedings against the respondents in both contract and tort 8 years after she first discovered her right of action en licitation, and just over 10 years from the date on which the alleged breach of contract occurred.

In the Royal Court the appellant conceded that her action in tort was time-barred but in relation to her contract claim she submitted that the 10-year prescription period had been suspended until she had become aware of her right of action and accordingly her action in contract had been commenced within the 10-year limit. The Royal Court (Hamon, Deputy Bailiff), in proceedings reported at 1998 JLR 305, disagreed and held that the appellant's action in contract was statute-barred and that there was no basis for extending the prescription period so as to allow her claim to proceed.

On appeal, the appellant restated her submission that time did not run against her until she became aware of her cause of action against the respondents since it was the respondents' fault that she was ignorant of it in the first place.

The respondents submitted in reply that the appellant's action was prescribed as it had been initiated more than 10 years from the date on which her cause of action arose.

Held, allowing the appeal:

(1) While ignorance of the existence of a cause of action did not per se trigger a suspension of the limitation period, it might, in appropriate circumstances, constitute or create a relevant impediment so that the commencement of an action was a practical impossibility and time would therefore not run. The test was not subjective, it was whether the ignorance was reasonable in all the circumstances, i.e. reasonable both in respect of the facts giving rise to the cause of action and that a cause of action arose in such circumstances. Reasonableness was an appropriate test as it was a much used legal standard, it satisfied perceived public policy and it gave flexibility to the claimant without undermining too seriously the rationale of prescription periods. While the appellant was instructing the respondents, there was prima facie no practical possibility of her appreciating any failure of the respondents to advise her of the licitation procedure. Whether circumstances in fact existed which dislodged the prima facie conclusion and showed that the appellant could reasonably have become aware of her right to sue the respondents before the expiry of the limitation period would fall to be investigated, if at all, at trial. The appeal would therefore be allowed (page 291, lines 16-44; page 292, line 43 - page 293, line 23; page 295, lines 16-25; Sumption, J.A. dissenting in part, page 295, lines 30-45).

(2) The promptness or otherwise with which the appellant brought her action was irrelevant, provided it was within the 10-year period allowed. If her contention that time should not run against her until she became aware of her cause of action was correct, then she was no less entitled to the 10-year period from that date than any other person (page 293, line 35 - page 294, line 4).

(3) It had been assumed by both parties that the cause of action in contract accrued on the date of the breach of contract. However, it was possible that a future court might determine that the cause of action arose only when the plaintiff knew or ought reasonably to have known of the existence of the facts giving rise to the cause of action (the "reasonable discoverability test"). That line of argument might therefore be open to the appellant at trial (per Beloff, J.A., page 287, lines 39-43; per Southwell, J.A., page 294, line 15 - page 295, line 15).

BELOFF, J.A.: Introduction The appellant seeks to bring a claim in professional negligence or breach of contract against the respondents for failure to advise her of a procedure known as an action "en licitation" which would, had she deployed it (so she asserts), have prevented the loss of her former matrimonial home, "Verdala," and the damaging consequences, financial, psychological or otherwise, of that loss. The process of licitation was described by the Judicial Greffier in a letter dated August 21st, 1989 to the appellant where he says:

"Where immovable property is held by two (or more) persons with a hold in common or jointly and one of those co-owners wishes to realize his or her interest in that property and the other owner(s) does not agree to join as a sale, that co-owner has an incontestable right to enforce such a sale. This is done by means of the proceedings known as 'licitation' and the court will normally order the property to be sold by auction to the highest bidder—by...

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