Deliberate concealment of fact
Central to many claims for professional negligence is an allegation that the defendant left something out that a reasonably competent adviser would have put in. So long as we are talking liability, there is no reason for distinguishing between forgetfulness and an unwise decision that there was no good reason for mentioning the matter in question.
That said, it may be necessary to identify a conscious omission situation, where the defendant raises a limitation defence. The reason lies in section 32 of the Limitation Act 1980 (key phrase “deliberate concealment”), which says, in effect, that time should not begin to run in favour of a wrongdoer, who covers his tracks, until the tracks have been, or should have been, uncovered.
Now, it might be thought absurd to apply the section to a professional adviser who had no ulterior motive for not bringing a particular matter to his client’s attention. However, it looked as if things were going that way as a result of Brocklesby v Armitage & Guest [1999] PLSCS 182, where the Court of Appeal adopted a rather literal approach to 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.”
Happily, that part of Brocklesby has been overruled by the House of Lords when allowing a defendant solicitor’s appeal in Cave v Robinson Jarvis & Rolf [2002] 19 EG 146 (CS).
The concealment has to be the intended result.
Comments from the wise and good, including spokespersons for the insurance industry, may be found in
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