Matthew v Sedman concerned difficult questions about the date (or even time of day) at which causes of action accrue and the calculation of limitation periods in professional negligence claims.
The trustees and beneficiaries of the Evelyn Hammond Will Trust brought proceedings against the Trust’s former trustees for a failure to submit claims under a court sanctioned scheme of arrangement. In November 2017 HHJ Hodge QC held that the Claimants claim was time barred and granted the Defendants summary judgment on this aspect of the case. Permission to appeal was granted and the Court of Appeal heard the Claimants’ appeal on 15 January 2019.
The Court of Appeal upheld HHJ Hodge QC’s decision leading to the case being subsequently appealed to the Supreme Court where the case was heard on the 19 January 2021 before Lord Hodge, Deputy President, Lady Arden, Lord Sales, Lord Burrows and Lord Stephens.
Judgement was handed on the 21 May 2021 in favour of the respondents, full details of the hearing can be found on the Supreme Court Website. The UK Supreme Court Blog provides their own analysis.
Dr Christopher McNall represented the Claimants, led by Jeremy Cousins QC of Radcliffe Chambers.
His views on the Judgment are as follows:
Earlier this year, I appeared for the first time before the Supreme Court, and I wrote a few lines about how exciting an experience it was. Judgment has now appeared and, disappointingly, my clients’ submissions did not find favour. My clients’ claim was issued 6 years and one day after the cause of action accrued – i.e. a day late.
The Court rejected our two-step argument.
Step one: If the thing which went wrong had to be done by the end of Tuesday, then you can’t sue about it not being done till Wednesday. Even if your cause of action arises at the very first moment of Wednesday, it is nonetheless Wednesday (it has to be, because Tuesday has gone for good).
Step two: Apply the well-established rule that for the purposes of limitation you exclude the day when the cause of action arose (because that will always be part of a day).
Outcome: If the cause of action accrued on the Wednesday, and Wednesday is not counted, then 6 years from Thursday is in time because you are still getting the “6 years from the date on which the cause of action accrued” which the Limitation Act 1980 gives you.
And so we thought – and as Alexander the Meerkat would say .. simples!
But – with respect to Alexander and his market-comparing skills (although most of the hard work actually seems to be done by Sergei) – not so simples, it now seems. We were wrong. The Court has held that when the thing had to be done by the stroke of midnight on Tuesday, then the cause of action arises so very early on Wednesday that it makes no real difference, and so the clock is already beginning to run on Wednesday.
Along with Wilson Pickett you have waited for the midnight hour, but … you are already too late. Or, to mangle some Madonna, you have truly felt the power … of the midnight hour.
I am not in the business of picking fights with the Supreme Court, or indeed with any of the other three judges who found against my clients. I had my fair say, each and every time, and I came second. That is what happens in an adversarial system: someone wins, and someone loses. And the Supreme Court has the last, and definitive, word. That is its job.
But I still have to say that the idea that there is a minimum period of time which does not cross the threshold of being recognised by the law (so that, realistically, there is no fraction of a day, meaning the rule can’t apply) is quite intriguing and perhaps productive of more problems down the line (but for other litigants in other cases).
The Limitation Act refers to “dates”, and, when it comes to dates, there are only so many available each year, and they don’t overlap. There are no fuzzy dates – neither one date nor the other – shoehorned in. Metaphysics or not, tiny amounts of time do matter in the real world – just ask Usain Bolt. Or, in another context, look at the great article by Andrew Smith in The Guardian (Fast Money: the battle against high frequency traders – 7 June 2014) about high frequency automated trading – thousands, even millions, of trades in a single second – with traders jockeying for straight fibre optic cables linking their black box to the server so that their trade arrives before (although a mini-mini-micro-nano second before) their competitor who uses a bendy cable. Far out.
So, before I go too Dominic Cummings on this, I can only wonder how, in this modern world, where we can – and do – measure time down to the merest whiff of ‘Planck time’ (this is the smallest unit of measurable time: see the Court of Appeal of New South Wales trying to grapple with this in Segal v Young [2001] NSWCA 141), and we do so in connection with things that make the world go round, like the global money market, we should have carved out a rule where, if the deadline is midnight (as it is, by default, for most contractual obligations) then the next day is counted in for limitation and not out.
One last thought. The great judge Sir Robert Megarry said that the Law Reports are the charts of the wrecks of unsinkable cases. Until we get Hercules the Robot deciding cases (see Ronnie Dworkin’s ‘Law’s Empire’) – perhaps now much nearer than we think – then litigation is human, imperfect, and still capable of throwing up new answers to what we thought were familiar problems.
Further analysis on this important case can be found on Lexology and Law Gazette.
Christopher McNall is the only barrister in the North of England recommended for work in Agricultural
Law in the latest edition of The Legal 500.
Christopher specialises in disputes about tenanted and freehold farms and land (and especially agricultural tenancies under the Agricultural Holdings Act 1986), taxation (especially of agricultural land), proprietary estoppel, and inheritance.
He has appeared in many leading agricultural and tax cases in the Court of Appeal, the High Court, the Agricultural Lands Tribunal, and the First-tier Tribunal. He is Chairperson of the Agricultural Lands Tribunal for Wales, a Deputy District Judge, and a fee-paid Judge of the Tax and Property Chambers of the First-tier Tribunal.
Christopher was Consultant Editor for the ‘Agricultural Holdings and Allotments’ title in the 2018 edition of Halsbury’s Laws of England and writes the ‘View from the Bar’ column for the Agricultural and Rural Affairs section of Practical Law. His book, ‘A Practical Guide to Agricultural Law and Tenancies’, was published recently.
For more information on Dr Christopher McNall please contact Chambers Director James Parks or Senior Clerk Katie Brown by phone 0161 278 8261 or email businessproperty@18sjs.com