The Lawyer's Custodial Responsibility And The Statute Of Limitations Of The Liability Act

In a recent judgment dated 29/09/2023, the Paphos District Court ruled on the professional liability of a lawyer under Art. 51 of Cap. 148 of the Civil Wrongs Law.

In summary, the case concerned a claim against the Defendant's lawyer for failure to perform certain legal obligations in relation to the purchase of a property. In particular, the Plaintiffs alleged in that action that the Defendant failed to comply with the time limits required by law for submitting the necessary documents and taking the necessary actions at the Paphos District Land Registry in order to transfer the property in question into their names. As a result, the property was encumbered with a charge in rem that preceded the specific performance and the Plaintiffs were no longer able to transfer the property into their names.

The judgment of the Paphos District Court is divided into two main parts. After the necessary delimitations of the introduction, a systematic approach and analysis of the testimony in relation to the facts follows, while then an attempt is made to answer the question of the statute of limitations of the offence according to the legal provisions of Law 66(I)/2012 which entered into force on 01/07/2012. In this case, an analysis is made as to the application of Article 68 of Cap. 148, which sets out the time limits for bringing an action in the case of a civil offence, in this case the civil offence concerned the lawyer's liability towards his clients. Under that section, no action may be submitted to the court unless it is done so within three years immediately after the act or omission giving rise to the tort.

In the present case, the action was submitted to the court on 19/02/2014, while the legal provisions of Law 66(I)/2012, which came into effect on 01/07/2012, were in force. Pursuant to Article 29 (1) of this Law, Article 68 of Cap. 148 was repealed, but only in respect of acts occurring after its coming into effect. Therefore, for acts or omissions that occurred previously, Article 68 of Cap. 148 applies.

According to Article 68 of Cap. 148:

"No action shall be brought for a civil wrong unless it is brought:

1. within three years immediately after the act or omission in respect of which the action was brought; or
2. if the civil offence causes fresh damage on a day-to-day basis, within three years of the cessation thereof; or
3. if the cause of action arises not from the commission of any act or omission to commit an act but from the damage resulting from that act or omission within three years immediately after the Plaintiff suffered the damage,
4. if the civil offence was fraudulently concealed by the Defendant, within three years of its discovery by the Defendant, or of the time it would have been discovered by him if he had exercised reasonable care and diligence:

At the outset we note that a lawyer has a responsibility and duty to his client under both the contract between them and the duty of care of a professional (Midland Bank Trust Co v Hett, Stubbs & Kemp (1979) Ch 384 at 403). There is parallel liability under the law of contracts and under the civil tort of negligence according to the provisions of Art 51 of Cap. 148. The fundamental case of Muriel Beaumont and Others v. Nikos Papakleovoulou (2010) 1 A.A.D. 525 is considered illuminating in this regard, in which the following was raised: In common law, where a professional offers his services for a fee, he assumes a contractual duty of care. This does not preclude the simultaneous and independent existence of a duty of care and the possibility of imposing parallel liability under the civil tort of negligence. The lawyer's duty of care is defined by Article 51 (1) of Cap. 148.

Among the main duties of a lawyer is to advise his client diligently, to bring to his attention any problems and any inherent risks, to warn him of these and generally to protect his interests. To avoid misunderstandings with his client, a prudent lawyer, although under no legal obligation, is advised to ensure that he takes his client's instructions in writing, particularly in cases where his client chooses, against his advice, to act otherwise.

Article 68 of Cap. 148 seems to be aimed at protecting justice, as it sets a time frame for bringing an action in civil tort cases. However, this time limit can have both positive and negative aspects, depending on the specific circumstances of each case.

In particular, while the aforementioned article encourages speedy recourse to the courts and the protection of the recollection of evidence, in some cases it may be argued that the limited time limit may lead to the exclusion of potential justice.

Accordingly, the claim based on the civil tort of negligence was time-barred at the time this Action was commenced and accordingly the court held, inter alia, that the Plaintiffs were not entitled to their claims.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.