Schoonraad, Delport and Van Der Merwe Incorporated v Andre Barnard

The respondent (Andre Barnard) engaged the applicant (a firm of attorneys) to pursue a claim against Metropolitan Life. The applicant failed to issue summons timeously, resulting in the respondent's claim prescribing. The respondent then sued the applicant for damages based on their alleged failure to carry out the mandate. The applicant raised a special plea of prescription, arguing that prescription started running on 28 November 2007 when Mr. Delport (the applicant's director) met with the respondent and informed him there was a problem with his claim. The applicant argued the claim prescribed on 28 November 2010. The respondent contended he only became aware of the negligence on 10 December 2007, when Advocate Gajjar opined that Metropolitan Life's special pleas would succeed. The respondent served summons on 3 December 2010.

• When does prescription begin to run in a professional negligence claim against an attorney?
• What constitutes sufficient knowledge by a client that they have a claim against their attorney for purposes of commencement of prescription?
• Whether the statement made by the attorney to the client on 28 November 2007 was sufficient to trigger the running of prescription?
• Interpretation of what information conveyed to the client would lead them to believe they had a claim against their attorney

Leave to appeal is granted to the Full Court of the Eastern Cape Division. Costs shall be costs in the appeal.

In the original judgment (now subject to appeal), the ratio decidendi was that for prescription to commence running in a professional negligence claim against an attorney, the client must have sufficient knowledge that they have a claim. Mere indication by the attorney that there is a "problem" with the matter, without clear confirmation that negligence has occurred, is insufficient to trigger the running of prescription where the attorney themselves remains uncertain and continues to seek opinions to confirm or dispel their concerns. The court must consider the totality of the circumstances and the attorney's conduct following the alleged disclosure.

The court observed that in this application for leave to appeal, there is a reasonable possibility that a court of appeal could arrive at a different interpretation and evaluation of the evidence, particularly regarding the interpretation of what was stated by the applicant at the meeting on 28 November 2007. This suggests that the matter involves a genuine interpretative dispute that merits appellate consideration, particularly given the applicant's argument that their subsequent actions were merely to "confirm their fears" rather than indicating uncertainty about whether negligence had occurred.

This case addresses the critical question of when prescription begins to run in professional negligence claims against attorneys, particularly focusing on what constitutes sufficient knowledge by a client that they have a claim. The case highlights the importance of clear communication by attorneys to clients regarding potential negligence, and the court's approach to interpreting statements made by legal practitioners. The grant of leave to appeal indicates that the matter involves an important interpretative question regarding the commencement of prescription that may benefit from appellate consideration.