D – Deliberate concealment
8/3/24
BRENDON INTERNATIONAL LTD v WATER PLUS LTD [2024] EWCA Civ 220
Explains the distinction between the legal and evidential burden of proof [50]. In a claim for recovery of money paid by mistake, the legal burden of proof is on the claimant. The judge had wrongly confused the two and wrongly applied a presumption. The appeal court explained when a person may be regarded as qualified to give expert evidence [75] and when a witness can give evidence of fact and opinion [86]. The judge had failed to give sufficient reasons for refusing to treat a witness as an expert. The court also considered what reasonable diligence means in the context of Limitation Act 1980, s.32 [94]. The judge had not asked the right question, which involves asking what the actual claimant could have learned not just what they did learn.
15/11/23
CANADA SQUARE OPERATIONS LTD v POTTER [2023] UKSC 41
A lender’s failure to disclose in 2006 a commission in connection with a PPI policy had been unfair within the unfair relationship provisions of CCA 1974 ss.140A-D. A claim by the borrower in 2018 to recover policy payments was not time-barred. The commission had been deliberately concealed because the lender had consciously decided not to disclose its existence and amount. Once ss.140A-D came into force, those facts were relevant to the claimant’s right of action but the claimant had not discovered them and could not have done so with reasonable diligence until 2018. Concealment can be by taking positive steps or by withholding relevant information, but need not be in breach of a legal duty. It must be deliberate, in the sense that the defendant must have considered whether to inform the claimant of the relevant fact and decided not to. Actual knowledge or intention is required. Recklessness does not
27/7/20
THE FEDERAL DEPOSIT INSURANCE CORPORATION v BARCLAYS BANK PLC [2020] EWHC 2001 (Ch)
The claimant brought claims against a number of defendant banks alleging that USD LIBOR manipulation amounted to an agreement or concerted practice giving rise to breaches of Article 101 of the Treaty on the Functioning of the European Union and s 2 of the Competition Act 1998. An application for summary judgment disposing of the claim as time-barred failed. The court reviewed principles of deliberate concealment under s 32(1)(b) Limitation Act 1980 [25] and for pleading dishonesty [36]. The issue was whether facts in the public domain which the claimant could with reasonable diligence have discovered more than 6 years before it started the claim, provided a sufficiently solid foundation for the claim to be properly pleaded. On the evidence it was arguable that this test was not satisfied until regulatory findings were published in 2012 and that as a result the claim was not time-barred.
19/6/20
VARIOUS CLAIMANTS v NEWS GROUP NEWSPAPERS LTD [2020] EWHC 1593 (Ch)
Considers principles to be applied when reliance is placed on deliberate concealment to postpone the limitation period under s 32 Limitation Act 1980 and the requirement that the deliberate concealment relied upon must have been of facts relevant to the breach of duty for which the claimant is suing, not breach of some free-standing duty [52].
4/6/20
VARIOUS CLAIMANTS v NEWS GROUP NEWSPAPERS LTD [2020] EWHC 1436 (Ch)
Considers principles to be applied when reliance is placed on deliberate concealment to postpone the limitation period under s 32 Limitation Act 1980. The facts concealed must be facts which make up the cause of action, not merely evidence to prove it [32]. The claimant must plead facts which have been concealed from him personally, but if there is more than one claimant they can each rely on the same facts in a generic pleading [47]. The deliberate concealment relied upon must have been of facts relevant to the breach of duty for which the claimant is suing, not breach of some free-standing duty [56].
20/3/20
CANADA SQUARE OPERATIONS LTD v POTTER [2020] EWHC 672 (QB)
A lender’s failure to disclose in 2006 a commission in connection with a PPI policy had been unfair and amounted to wrongdoing within the unfair relationship provisions of CCA 1974 ss 140A-D. The lender was to be taken to have deliberately concealed the wrongdoing for the purpose of s 32 Limitation Act 1980 so that time did not run for the borrower to bring a claim to recover the premium until the borrower discovered the commission payment in November 2016.
19/5/17
TRILOGY MANAGEMENT LTD v HARCUS SINCLAIR (A FIRM) [2017] EWHC 1164 (Ch)
A claim against a firm of solicitors for allegedly altering a document without instructions was dismissed summarily as being time-barred. There was no prospect of the claimant establishing that the commencement of the limitation period for that breach was postponed by section 32 Limitation Act 1980. The alleged breach was not committed in circumstances in which it was unlikely to be discovered for some time. Nor was it arguable that the limitation period was extended under s 14A. The claimant could have acquired knowledge that the insertion of the additional words was instigated by firm at an early stage.
12/12/12
FORD & WARREN v KENNETH WARRING-DAVIES [2012] EWHC 3523 (QB)
In a professional negligence claim against a solicitor for failing to carry out his instructions, the claimant could not rely on a claim of breach of fiduciary duty so as to benefit from a longer limitation period than would otherwise apply. The claimant did not need to know why a breach of duty had occurred for the cause of action to accrue. Nor could the claimant rely on deliberate concealment because there was nothing intentional or deliberate in the defendant’s conduct and the facts could have been discovered with reasonable diligence within a few weeks of the work being done. The claim was therefore time-barred.
26/4/12
MORTGAGE EXPRESS v ABENSONS SOLICITORS [2012] EWHC 1000 (Ch)
The fact that a solicitor acted in breach of fiduciary duty in a mortgage transaction by failing to disclose relevant information to the mortgagee, did not necessarily mean there had been deliberate commission of a breach of duty so as to bring the claim within the extended limitation period applicable under s 32(2) Limitation Act 1980. Although a breach of the fiduciary duty of good faith requires that the solicitor is conscious of his breach of duty, it was arguable that breach of the fiduciary duty not to allow an actual conflict of interest to arise does not require the same mental element and might be committed in circumstances where the breach was not a deliberate in the sense required to bring the case within s 32(2).