Limitation Act 1980 and Kay v Martineau Johnson Case Analysis
Summary
This article discusses the application of Section 14A of the Limitation Act 1980, as illustrated by the recent case of Kay v Martineau Johnson [2026] EWCA Civ 224. It highlights that while the law is largely settled, the application of the 'starting date' for limitation periods remains contestable.
What changed
The article analyzes the implications of the recent Court of Appeal decision in Kay v Martineau Johnson [2026] EWCA Civ 224 concerning Section 14A of the Limitation Act 1980. It focuses on the 'starting date' for the three-year limitation period, noting that despite numerous prior cases, the interpretation and application of this date continue to be a source of dispute, indicating that the law in this area, while established, is not entirely settled.
Legal professionals advising clients on potential claims should be aware that the precise determination of the 'starting date' under Section 14A can be complex and subject to litigation. This case underscores the importance of carefully assessing a claimant's knowledge at the earliest possible point to avoid claims being time-barred, even in seemingly straightforward situations.
What to do next
- Review the application of Section 14A of the Limitation Act 1980 in light of *Kay v Martineau Johnson*.
- Assess claimant knowledge carefully to determine the 'starting date' for limitation periods in potential litigation.
Source document (simplified)
When should you know what you don’t in fact know?
Articles & Publications
10 March 2026
Kay v Martineau Johnson [2026] EWCA Civ 224 is the latest in a long line of cases concerning section 14A of the Limitation Act 1980 (as amended). The fact that there is such a long line means that the law in this area is largely settled. However, as Clare Dixon KC and Hugh Evans explore in this article, this case shows that it is not entirely settled, and its application is often contestable.
Section 14A
Section 14A provides for a three year, secondary, limitation period running from the “ starting date ” which is defined in the statute (so far as is relevant) as follows:
“(5) … the starting date…is the earliest date on which the plaintiff… first had both the knowledge required for bringing an action for damages in respect of the relevant damage and a right to bring such an action.
(6) In subsection (5) above “the knowledge required for bringing an action for damages in respect of the relevant damage” means knowledge both—
(a) of the material facts about the damage in respect of which damages are claimed; and
(b) of the other facts relevant to the current action mentioned in subsection (8) below.
(7) For the purposes of subsection (6)(a) above, the material facts about the damage are such facts about the damage as would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.
(8) The other facts referred to in subsection (6)(b) above are—
(a) that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence…
(9) Knowledge that any acts or omissions did or did not, as a matter of law, involve negligence is irrelevant for the purposes of subsection (5) above.
(10) For the purposes of this section a person’s knowledge includes knowledge which he might reasonably have been expected to acquire—
(a) from facts observable or ascertainable by him; or
(b) from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek;
but a person shall not be taken by virtue of this subsection to have knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.”
In short, therefore, a claimant has three years to commence an action after his date of knowledge, which is when he knew the damage was sufficiently serious (a low threshold), and that the damage was attributable to the act or omission which is alleged to be negligent. Further, the relevant knowledge can be actual or constructive and it is irrelevant that the claimant did or did not know that the relevant acts or omissions were negligent.
The Facts
Ms Kay reached a clean break settlement of her ancillary relief proceedings with her former husband Mr Mahan in 2008 (“ the Settlement ”). For the purposes of the Settlement and the financial proceedings which preceded it, Ms Kay instructed Martineau Johnson (“ the Firm ”).
Shortly after the Settlement, Ms Kay became concerned that Mr Mahan had not revealed the extent of his financial assets and sought advice from the Firm. The Firm advised her in November 2008 and May 2009 that there was no basis for reopening the Settlement.
Between 2017 and 2018, Ms Kay learned that Mr Mahan had an affluent lifestyle in contrast to the one that she was living. In 2018 and 2019 she, or her new partner Mr Morgan, sought and obtained from the Firm their file, Mr Mahan’s Form E and documents about his finances.
In March 2020, Mr Morgan funded the instruction of a barrister on Ms Kay’s behalf to advise on whether the Settlement could be reopened. In May 2020, the barrister advised that the Settlement could not be reopened but, in a subsequent discussion with Mr Morgan, advised that it might be possible to pursue a claim against the Firm.
Proceedings were issued against the Firm in March 2023. Put broadly, Ms Kay alleged that the Firm failed to properly investigate Mr Mahan’s means and, as part of the Settlement, should have advised her to seek a nominal spousal maintenance order (which may enable the Settlement to be revisited) rather than a clean break (which would not).
Decision of the Court of Appeal
At first instance, HHJ Russen KC (sitting as a Judge of the High Court) found that Ms Kay had actual knowledge by the end of 2009, alternatively constructive knowledge by the end of 2018. The Court of Appeal overturned the finding on actual knowledge but upheld it on constructive knowledge. Ms Kay’s claim against the Firm was, therefore, statute barred.
Actual Knowledge
In Haward v Fawcetts [2009] UKHL 9, which is the leading case on s.14A, Lord Mance had pointed out that there was a tension between subsection 8(a) and (9). In short, whilst there needs to be knowledge of the act or omission which is alleged to constitute negligence, there is no need for knowledge that, as a matter of law, it involved negligence. As Lord Nicholls put it, where the defective nature of advice is not apparent on its face “ something more” is needed to put the recipient on inquiry.
The Court of Appeal unanimously found that the “ something more” was absent in this case. Notably, Newey LJ said “ Ms Kay believed that her settlement with Mr Mahan had turned out badly for her, and there was reason for her to take expert advice in relation to it, but it remained the case that the advice which [the Firm] had given was “apparently sound and reliable”.
Constructive Knowledge
The Court considered whether Ms Kay had constructive knowledge over two time periods: (a) 2008/2009 when she sought advice from the Firm and (b) 2018-2020 when she sought advice from Counsel.
So far as 2008/2009 was concerned, Ms Kay’s submission was that by seeking advice from the Firm in 2008/2009, albeit on whether the Settlement could be set aside rather than whether the Firm had been negligent, she had taken reasonable steps for the purposes of s14(10). Newy L.J. found that she had on the basis that it was “ reasonable to assume that [the Firm] would have alerted her to the possibility of negligence had there been one”. However, the majority (Males LJ and Lewis LJ) disagreed. They found at [86] that, whilst it was reasonable for her to obtain the advice which she did from the Firm, she should then have sought advice about whether she had received bad advice from the Firm and her failure to do so meant that she had not (in the words of the proviso to s14A(10)) “ taken all reasonable steps”.
So far as 2018-2020 was concerned, it was common ground that Ms Kay could have ascertained the relevant facts with appropriate expert advice, but Ms Kay relied upon her lack of funds as being the reason why she had not done so. In his analysis, Newey LJ extensively analysed dicta from a number of cases, from which he drew the conclusion that constructive knowledge was mainly objective and the peculiar characteristics of the claimant would normally be irrelevant. He drew from this some conclusions on impecuniosity which are a helpful development of the law. He stated at [64] that it was “ questionable whether a claimant’s impecuniosity can ever matter for the purposes of section 14A(10)” and “ if there can be circumstances in which impecuniosity is relevant, they will be rare and it must be incumbent on a claimant who wishes to rely on impecuniosity to provide detailed evidence as to his financial circumstances and how they prevented him from obtaining appropriate advice”. Ms Kay’s evidence did not establish that she was in that “ rare category ” rather it suggested that she had, financially, not prioritised seeking advice. Consequently, the Court of Appeal unanimously found that she had constructive knowledge more than three years before the proceedings were issued.
Discussion
Whilst the majority found that Ms Kay did have constructive knowledge in 2008/2009 we consider that the reasoning of the minority on this point is more compelling. In particular, whilst Newey LJ considered it “ reasonable to assume ” that the Firm would have informed Ms Kay if it was aware of its own negligence in 2008/2009, the Judgment does not refer to the line of established authorities which state that, where a solicitor is aware of their own negligence, they owe a duty to the client to advise them of the same. [1] Seen in the light of those authorities, it was not just “ reasonable to assume ” that the Firm would have alerted Ms Kay to the possibility of their own negligence but we consider that was the only inference which could be drawn consistent with the Firm acting in accordance with its legal and regulatory obligations. [2] If that is right then there is no good reason to conclude that Ms Kay was under an obligation to second guess the Firm in 2008/2009.
If (contrary to the findings of the majority) Ms Kay did not have constructive knowledge in 2008/2009 then it is necessary to focus upon what changed between then and 2020. The findings of fact as set out in [11] are consistent with Ms Kay seeking advice from Counsel in 2020 on whether the Settlement could be reopened and then, as a matter of chance, Counsel raising in a subsequent discussion the possibility that a claim could be made against the Firm.
There is nothing wrong with the principle that a claimant can be fixed with constructive knowledge where they ought to have sought expert evidence for reasons other than a desire to know whether they have a potential claim in negligence (see Finance for Mortgages Ltd v Farley and Co [1998] PNLR 145 and The Mortgage Corp v Lambert & Co (A Firm) [2000] PNLR 820). However, those cases turn on whether the claimant should have obtained that expert evidence earlier than they did. Ms Kay accepted that she should have obtained such advice and, having so accepted, had to rely upon her impecuniosity in an attempt to bring herself within the proviso to s14A(10). Whilst the Court of Appeal did not rule out a lack of funds being a basis for relying on that proviso it left open what precisely would fall into this “ rare category ”.
We may see attempts to shoehorn cases into that rare category and it appears, therefore, that the long line of cases on section 14A may become yet longer.
[1] See Gold v Mincoff Science & Gold (A Firm) [2001] Lloyd’s Rep PN 423 and the line of cases referred to in Jackson & Powell, 9 th Edition, paragraph 11-172.
[2] See the provisions on “own interest” conflict at paragraph 7.11 of the Code of Conduct for Solicitors and paragraph 3.5 of the Code of Conduct for Firms.
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Clare Dixon KC
Call: 2002 Silk: 2021
Hugh Evans
Call: 1987
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