When does a cause of action arise if a professional advises more than once?

When does a cause of action in negligence accrue against a barrister who advises on two separate occasions about the same, or similar, issues? Is there a single cause of action, which accrues when the first piece of advice is given and acted upon? Or does a separate cause of action accrue when the second piece of advice is given and acted upon? Sciortino v Beaumont [2021] EWCA Civ 786 concerned advice given in conference in April/May 2011, and in writing in October 2011, by a barrister who was instructed by a law centre. The law centre was assisting an individual who had been made bankrupt and was seeking to overturn an order for the sale of his property in Surrey. The bankrupt complained that he should have been advised that litigation was hopeless. Instead, the advice given was “negligently optimistic” and the legal costs incurred as a result substantially diminished the amount eventually available to him from the proceeds of sale of his home. But his claim form was issued more than six years after the advice of April/May 2011. So any claim arising from that advice was statute-barred. However, the claim form was issued within six years of the advice given in October 2011. Consequently, the court had to decide whether that subsequent advice gave rise to a separate cause of action. The Court of Appeal observed that, where a negligent act or omission causes actionable damage outside the limitation period and further damage inside the limitation period, there is one accrued cause of action and it is statute-barred: Khan v Falvey [2002] EWCA Civ 400. But there were two separate pieces of advice that were allegedly negligent in this case – and there is no general “relation back” principle that requires the limitation period to run from the date of the first negligent breach of duty in such circumstances. The position might be different if, for example, a claimant were to have been irretrievably committed to a course of action as a result of the first piece of negligent advice given – because a second piece of negligent advice would not cause any additional loss. But that was not the case here. The barrister had had only limited information in April/May, but was asked to advise again in October 2011, when more information was available, to help to secure an extension to the bankrupt’s legal aid certificate for an appeal against the order for the sale. He could have advised then that the appeal had less chance of success than he had previously thought and should be abandoned. The bankrupt was not bound to fight to the bitter end simply because the process had started and was not irrevocably committed to the costs of a hearing that would result in defeat. But the barrister did not alter his advice and the appeal went to a hearing. The court acknowledged that there was an overlap in the advice given. But there were also significant differences in the nature and scope of the advice provided and the material available for consideration on each occasion. Consequently, the claim for loss caused by the advice given in October 2011 was not statute-barred and, if that advice were to be shown to be negligent at trial, it would give rise to a separate, albeit smaller, claim.   Allyson Colby is a property law consultant