Solicitor — Claimant alleging negligent drafting of intended easement — Solicitor raising limitation defence — Claimant contending that relevant fact “deliberately concealed” within meaning of section 32 of Limitation Act 1980 — Whether unintended concealment capable of being “deliberate” — Appeal allowed
In March 1989, the claimant completed a transaction that was intended, inter alia, to grant him mooring rights, for a period of 100 years, over land that belonged to a company. The relevant document had been drawn up by the defendant firm of solicitors (RJR) acting on behalf of the claimant. In February 1994, the efficacy of the document was challenged by a receiver who had been appointed in the liquidation of the company. The claimant requested that RJR respond to the challenge, but no action was taken. In January 1998, the claimant instituted proceedings, contending that RJR had been negligent in failing to ensure that his rights would be binding upon the company’s successors in title.
In reply to a defence based upon the Limitation Act 1980, the claimant, relying upon section 32 of the Act, contended that time did not start to run before February 1994, because only then was he in a position to discover that RJR had “deliberately concealed” a relevant fact within the meaning of subsection (1)(b). It was further argued, relying upon Brocklesby v Armitage & Guest [2001] 1 EGLR 67, that the non-fraudulent nature of the concealment was rendered immaterial by subsection (2), which provides that “deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty…”. Hearing the matter as a preliminary issue, both the trial judge and the Court of Appeal followed Brocklesby, and ruled in favour of the claimant.
On appeal to the House of Lords, RJR contended that subsection (2) did not invest the word “deliberate” with the meaning accepted in the courts below.
Held: The appeal was allowed.
Section 32 deprived a defendant of a limitation defence in two situations: (i) where he took active steps to conceal his own breach of duty after he had become aware of it; and (ii) where he was guilty of deliberate wrongdoing, and concealed or failed to disclose it in circumstances where it was unlikely to be discovered for some time. It did not deprive a defendant of a limitation defence where he was charged with negligence if, being aware of his error or failure to take proper care, there has been nothing for him to disclose. There was, moreover, no rational justification for denying such a defence where neither the original wrongdoing nor the failure to disclose had been deliberate. The concealment had to be an intended result. The reasoning in Brocklesby, as subsequently applied in Liverpool Roman Catholic Archdiocese Trustees Inc v Goldberg [2001] 1 All ER 182, could not stand.
Brian Doctor QC and Patrick Lawrence (instructed by Roach Pittis, of Newport) appeared for the claimant; Nicholas Davidson QC and David Drake (instructed by Beachcroft Wansbroughs, of Bristol) appeared for the defendant.
Alan Cooklin, barrister
