Constructive Knowledge and the Limits of Delay: Lessons from Kay v Martineau Johnson

Introduction 

The Court of Appeal has considered section 14A of the Limitation Act in the recent case of Kay v Martineau Johnson (A Firm) [2026], a case in which the Claimant sought to challenge the legal advice she received in respect of a divorce settlement many years later.

Two issues came before the Court. The first was whether Ms Kay had either actual or constructive knowledge for the purposes of section 14A. The second was whether Ms Kay’s argument that she could not afford legal advice at the appropriate time was relevant to the question as to whether section 14A applied.

Background

The Claimant, Ms Kay instructed solicitors in 2007 to advise her in financial remedy proceedings following her divorce. In April 2008, she agreed to a settlement that effected a clean break. 

Shortly afterwards, Ms Kay became concerned that her former husband may not have fully disclosed his financial position. Her solicitors advised that there was no basis for reopening the settlement, and their retainer ended in June 2009.

Ms Kay’s settlement was impacted by the global financial crisis, as the sale of the property did not achieve what might have been expected. In 2017, she became romantically involved with a litigation partner at another firm (not a practitioner in family law) who advised her she may have a claim.

In 2020 Ms Kay sought legal advice from a barrister. In March 2023, she issued proceedings alleging that the solicitors had negligently advised her to accept the settlement.

Given that limitation for the claim under tort had expired many years before, Ms Kay relied on section 14A of the Limitation Act 1980.

Section 14A 

Section 14A provides an alternative time limit for negligence claims where the facts relevant to the cause of action were not known at the date of accrual. Time runs for three years from the date on which a Claimant acquires knowledge of the material facts about the damage, that the damage was attributable in whole or in part to the negligent act or omission and of the identity of the Defendant.

Section 14A(10) confirms that a person’s knowledge includes "knowledge which [he/she] might reasonably have been expected to acquire from facts observable or ascertainable by [him/her]; or from facts ascertainable with the help of appropriate expert advice which it is reasonable for him to seek; but a person shall not be taken to have knowledge of a fact ascertainable only with the help of expert advice so long as [he/she] has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice".

Actual Knowledge: Suspicion Is Not Enough

The Court of Appeal rejected the argument that the Claimant had actual knowledge in 2009.

The Court emphasised that the statutory language of section 14A must be applied directly. A Claimant must know the material facts about the damage and that the damage is attributable to the Defendant’s act or omission. Importantly, the Court drew a clear distinction between knowing something is wrong and knowing what is wrong may be the result of negligent advice.

The Claimant may have felt she had secured a "bad deal", but the evidence did not show that she had concluded that her solicitors’ advice was defective. That inference had simply not occurred to her at the time. Actual knowledge cannot be established merely because the Claimant possessed facts from which a negligence claim could have been inferred.

Constructive Knowledge: The Objective Standard

Although the Claimant escaped a finding of actual knowledge in 2009, she was less successful when the Court turned to constructive knowledge.

Section 14A(10) provides that a Claimant will be treated as having knowledge of facts which they might reasonably have been expected to acquire with the help of expert advice, provided it was reasonable to obtain that advice.

The Court of Appeal stressed that this is largely an objective inquiry. The question is not whether the Claimant actually investigated the possibility of professional negligence. Rather, it is whether a reasonable person in the Claimant’s position ought to have done so.

By the time the solicitors’ retainer ended in June 2009, the Claimant knew that she believed the settlement to be unfavourable and that she had no practical recourse against her former husband.

Those circumstances, the Court held, were sufficient to prompt a reasonable person to consider whether their professional advisers might have been at fault. Because the Claimant had not taken steps to investigate that possibility, she was fixed with constructive knowledge at that point.

Impecuniosity and the "Reasonable Steps" Proviso

In respect of the period from 2018 – 2023 where Ms Kay did not issue a claim, Ms Kay’s position was that she was busy during that period (including dealing with an acquaintance who turned out to be a fraudster and stole her parents’ life savings) and did not have the financial resources to seek further advice.

Section 14A contains an important proviso: a Claimant is not treated as having knowledge of a fact ascertainable with expert advice so long as they have taken all reasonable steps to obtain that advice. The Claimant argued that her lack of funds meant she could not reasonably be expected to obtain additional legal advice.

The Court’s view was as follows: 

"…it is questionable whether a Claimant’s impecuniosity can ever matter for the purposes of section 14A(10) of the 1980 Act. Even, however, 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 had not provided any such evidence. In this case, the evidence suggested that the delay resulted from the Claimant prioritising other matters (including a loan for a secondhand Land Rover from her solicitor partner), rather than an absolute inability to seek advice.

The Court of Appeal therefore concluded that the claim was statute-barred. 

Key Takeaways 

Limitation periods exist to provide finality, and for public policy reasons the Courts prefer clarity and an objective approach.

Once a party is aware it has a potential claim for professional negligence, it is critical to investigate promptly, including a review of the limitation period. It is unlikely that the Court will assist a party who decides at the time that it has other priorities or does not wish to pay for advice who then finds the claim statute-barred.

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