Time limits for suing your solicitor: when the clock starts

The general rules on time limits for professional negligence claims are covered in time limits for professional negligence claims. This guide deals with what is different when the professional is your own solicitor. It is for people who think a solicitor's mistake cost them money. For property purchases, conveyancing has its own series.

The general rules in brief

The Limitation Act 1980 sets the deadlines:

• Contract (s.5): six years from the date the cause of action accrued (arose). For breach of contract that is the date of the breach.
• Tort, meaning the claim in negligence (s.2): six years from the date the cause of action accrued. In negligence, that is when the claimant first suffers damage.
• Date of knowledge (s.14A): for a negligence claim, three years from when the claimant had the knowledge needed to bring it, if that ends later than the six years.
• Longstop (s.14B): no negligence claim more than fifteen years after the negligent act or omission.

Two claims running side by side

A solicitor acts under a contract, usually called the retainer: the agreement setting out what the solicitor was engaged to do. Since the House of Lords decision in Henderson v Merrett Syndicates Ltd [1995] 2 AC 145, a client can also sue an adviser they have a contract with in tort. So a claim against a solicitor can be brought in both.

The two limitation periods can start on different days:

• the contract clock starts when the solicitor fails to do what the retainer required, whether or not any loss has yet been suffered;
• the tort clock starts only when the client first suffers damage.

Where loss comes later than the breach, the tort claim may still be in time when the contract claim is not.

When damage happens: transactions

In a transaction case, such as a lease, a loan or a business sale, the courts have in a number of cases held that damage is suffered when the client enters the flawed transaction, not when the problem later comes to light.

The leading example is Forster v Outred & Co [1982] 1 WLR 86. A mother mortgaged her property to secure her son's present and future debts, when (she alleged) her solicitor should have advised and documented only a temporary bridging loan. The Court of Appeal held that she suffered damage when she executed the mortgage, not later when the lender demanded payment and she paid. Signing caused her actual, measurable detriment.

There is an outer limit. In Law Society v Sephton [2006] UKHL 22, the House of Lords held that a purely contingent liability is not yet damage. In Lord Hoffmann's words, "the possibility of an obligation to pay money in the future is not in itself damage". Where the line falls between a flawed transaction and a mere contingency depends closely on the facts. A drafting error in a contract or lease is the kind of case where this matters.

When damage happens: lost litigation

Where a solicitor mishandles a court case, people often assume time runs from the day the court struck the case out (ended it without a trial). That is not the rule.

In Hatton v Chafes [2003] EWCA Civ 341, the Court of Appeal explained its earlier decision in Khan v Falvey [2002] EWCA Civ 400: a strike-out order is not required before a claim against the solicitor arises, because the client may have suffered damage before any order is made. In Hatton, the court found that by a date in 1994 the client had no arguable basis left for resisting a strike-out of his original claim, so his claim against the solicitors arose then. His negligence claim, started in 2000, was out of time, and s.14A did not save it because he had the relevant knowledge more than three years before he sued.

In Holt v Holley & Steer [2020] EWCA Civ 851, solicitors acting in a divorce did not obtain their own valuation of assets. The Court of Appeal held that the client's loss was measurable when she lost the ability to put that evidence before the court, which may have been shortly after the financial dispute resolution hearing (a hearing in the divorce financial proceedings).

So the date can be earlier than clients expect. See when a solicitor misses a deadline.

Date of knowledge: tort only

Section 14A applies to "any action for damages for negligence". It does not extend a claim brought for breach of contract. Where it applies, the three years run from the earliest date the claimant knew:

• the material facts about the damage, meaning enough to make a reasonable person think it serious enough to justify proceedings;
• that the damage was attributable to the act or omission said to be negligent; and
• who the defendant was.

Knowledge that the act or omission was negligent as a matter of law is irrelevant (s.14A(9)). Knowledge includes what the claimant could reasonably have found out from observable facts or with appropriate expert advice (s.14A(10)).

Legal mistakes raise a particular difficulty, because clients rarely know the law. In Blakemores LDP v Scott [2015] EWCA Civ 999, solicitors instructed to apply to the Land Registry to close off a registered manorial title missed the deadline for objecting to a registration. One client knew the objection had not been filed, but the Court of Appeal held the clients could not be taken to know its obscure consequences without being told.

Deliberate concealment

Under s.32(1)(b), if a fact relevant to the claim has been deliberately concealed by the defendant, time does not start to run until the claimant discovered it, or could with reasonable diligence have discovered it. Section 32(2) adds that deliberately committing a breach of duty in circumstances where it is unlikely to be discovered for some time counts as deliberate concealment.

In Canada Square Operations Ltd v Potter [2023] UKSC 41, the Supreme Court held that concealment means intentionally hiding or withholding information, and does not depend on a separate duty to disclose. For s.32(2), "deliberate" does not include "reckless": the defendant must know it is committing a breach of duty. Where s.32(1)(b) applies, ss.14A and 14B do not (s.32(5)), so the 15-year longstop does not cut the claim off.

The 15-year longstop

Section 14B bars a negligence claim fifteen years after the last act or omission alleged to be negligent and to have caused the damage. It applies even if damage has not yet been suffered or the claimant has not yet acquired the relevant knowledge. A will drafted wrongly many years ago is the kind of case where the longstop can matter.

Standstill agreements and protective claims

Paragraph 4.1 of the Professional Negligence Pre-Action Protocol says the protocol "does not alter the statutory time limits for commencing court proceedings". It provides that the claimant can request, and the parties can agree, a standstill agreement extending the period in which a limitation defence will not be pursued. Alternatively, the claimant can start proceedings and invite the professional to agree to an immediate stay (a pause) while the protocol is followed. The protocol guide explains the steps. The limitation periods run from the dates described above whether or not a complaint to the firm or the Legal Ombudsman is under way.

What a solicitor will want from you

• The engagement letter or terms of business, and the dates the firm acted for you.
• The date of the transaction, court order, deadline or advice in question.
• In a litigation case: the court file, any strike-out application or order, and the dates of key hearings.
• The date you first suspected something was wrong, and what made you suspect it.
• The date anyone (a new solicitor, the court, the other side) first told you what the mistake was and its effect.
• Any complaint, the firm's response, and any standstill agreement already offered or signed.

Run the free case check

This guide is general information about the law of England and Wales. It is not legal advice. When damage was suffered, and so when time started, depends closely on the facts of each case, and a limitation deadline can pass earlier than you might expect.