13-year-old negligence claim allowed by High Court

In Stephane Etroy & RBC Trust Company v Speechly Bircham LLP [2023] EWHC 386, the High Court (HC) found a claim arising from negligent advice was not time-barred despite it being brought 12 years after the advice was given.

• Speechly Bircham LLP (Speechly) gave Inheritance tax advice to a UK resident, Non-domiciled Individual, Stephane Etroy.
• That advice, given in 2009, was implemented by RBC Trust Company (RBC) to establish a Non-resident trust.
• PWC identified a potential problem with the trust structure in 2017 and investigated with RBC over the next 18 months.
• In September 2018 after the investigation, the Speechly advice was found to be ineffective and led to additional liabilities of over £1m being incurred. These liabilities resulted from missed entry and 10-year charges for the trust.
• Mr Etroy instructed lawyers to investigate a claim in December 2018.
• The claimants issued a claim against Speechly Bircham in May 2021.
• It was agreed that the advice was defective but the defendants stated the claim was time-barred as the advice was provided more than six years before the claim was made.
• The claim was lodged with the High Court.

The High Court found that:

• While the ordinary limitation period is six years, there is a further three-year period starting when the claimant obtains the required knowledge to bring a claim for negligence.
• This three-year period starts when the claimant obtains both the knowledge of the material facts of the damage and the knowledge that the damage was attributable to the negligence.
• Where negligent tax advice leads to a tax liability, these two elements of knowledge should be viewed together. Knowledge of the damage would not arise until the claimant had received further specialist tax advice.
• The claimants had the required knowledge to instigate a claim in September 2018 as:
  • This was when PWC reported the findings of their 18-month investigation to Mr Etroy. 
  • Investigations by PWC started in 2017 and it took 18 months to identify that there was an issue and that the issue was a result of negligent advice. The matter was highly technical and uncertain.
  • While Mr Etroy was alerted to the possibility of further tax charges in 2017, PWC made it clear that it was uncertain and a full fact-finding was required to advise.
  • Investigations to find out whether a claim is serious enough to pursue do not give the required knowledge to start the clock.
  • The claimants had not known something had gone wrong with the advice until the PWC investigation had finished.

As the three-year clock started in September 2018, the claim, raised in May 2021 was in time and not statute-barred.

Useful guides on this topic

SRT: Statutory Residence Test
What is the statutory residency test? Why is it important and how does it work?

Non-domicile status, deemed domicile & tax
Who is non-UK domiciled? What does this mean for UK Income Tax, Capital Gains Tax and Inheritance Tax? What reliefs are available to non-doms?

Non-resident trusts
When is a trust non-resident? What are the UK tax implications of a non-resident trust? What are the UK tax implications for any beneficiaries? What are the UK administrative requirements for a non-resident trust? 

External links

Stephane Etroy & RBC Trust Company v Speechly Bircham LLP [2023] EWHC 386