Any litigator must understand the time limits for bringing claims, but this is not a straightforward area. Two recent cases clarify the Court's approach to limitation. The first considers the starting date under s.14A Limitation Act 1980 (the additional 3 year period for bringing certain claims). The second case deals with s.32 Limitation Act 1980 (which extends time where it is alleged that material facts were deliberately concealed) and is an example of the Court's reluctance to postpone limitation in professional negligence cases.
Section 14A Limitation Act 1980
Section 14A of the Limitation Act 1980 gives two alternative start dates for negligence claims: (1) 6 years from the date the cause of action accrues i.e., when the damage is first sustained; or (2) 3 years from the "the earliest date on which the claimant had both the knowledge required for bringing an action for damages in respect of the relevant damage and a right to bring such an action". Knowledge means knowing the material facts, including that damage was attributable in part to the act or omission alleged to constitute negligence.
In Blakemores LDP (in administration) v Scott & Ors (2015) the Court of Appeal considered when the Court had the requisite "knowledge" for s.14A. Blakemores pursued a claim for fees, which was met with a counterclaim alleging negligence in failing to lodge an objection to registration of title in time. Blakemores obtained summary judgment on limitation on the basis that the Defendants had known of the alleged negligence more than three years before the claim was issued. The Court of Appeal reinstated the claim. It found that simply knowing a solicitor had been negligent was not enough, a claimant needed to know enough to lead a reasonable person to consider it sufficiently serious to justify the issue of proceedings. The Defendants said they were not aware that the solicitor's failure would lead to loss or make any difference (i.e. "material facts about the damage") until much later. The Court of Appeal decided that a trial (with witness evidence) was necessary to properly decide the issue of knowledge.
Section 32 Limitation Act 1980
Under S32 Limitation Act 1980, where any fact relevant to the cause of action has been deliberately concealed from the Claimant by the Defendant, the 6 year period for bringing a claim does not start until the Claimant has discovered the concealment, or could have done so with reasonable diligence.
A "relevant fact" is any fact without knowledge of which the Claimant would have insufficient information to bring the claim.
- The Defendant must know that he has acted in breach of duty before he can be accused of concealing a relevant fact.
- The term "deliberate" means that the fact has been concealed by a positive act of concealment or by withholding relevant information.
In Kotonou & Anor v Reeves & Anor (2015) a claim was struck out in July 2008 as a trial fee was not paid. The Claimant had been advised to pay on time and was advised to promptly apply for relief from sanction. However, he delayed in putting his solicitor in funds, so the application was not drafted until September 2008, and it was dismissed in June 2010 for lateness. The Claimant then sought to claim damages from the solicitor, relying upon S32 Limitation Act 1980 to extend limitation, on the basis the solicitor deliberately concealed relevant facts which had only emerged on dismissal of the application.
It was held the Claimant could not rely on S32. On the evidence, the solicitor had known that the application must be made promptly to maximise prospects of success, and he did not know he was in breach of duty in the three months following the strike out. Arcadia Group Brands Ltd Inc [2015] was followed. The Court reiterated that the "deliberately concealed" facts must be "relevant to the right of action" within S32(1)(b). S32 is to be construed narrowly: the concealed facts must be fundamental to the claim rather than going merely to the prospects of success or broadly relevant to the case.
