Concealment of right of action

Cave v Robinson Jarvis & Rolf (a firm) (H of L NLJ 3 May p671)

In Brocklesby v Armitage & Guest (a firm) (20/LL p34) the Court of Appeal had held that it was not necessary for the purposes of s32(2) of the Limitation Act 1980 that the defendant should have known that his act gave rise to a breach of duty; any intentional act amounting to a breach of duty was sufficient. To the relief of the Law Society and solicitors generally, the House of Lords has held that that construction of s32(2) was not correct. The relevant words in s32(2) are: ‘… deliberate commission of a breach of duty … amounts to deliberate concealment of the facts involved in that breach of duty’. Those were clear words. ‘Deliberate commission of a breach of duty’ was to be contrasted with a commission of a breach of duty which was not deliberate, ie a breach of duty which was inadvertent, accidental, unintended - there were a number of adjectives that could be chosen for the purpose of the contrast, and it did not matter which was chosen. Each excluded a breach of duty that the actor was not aware he was committing. For a fact to be ‘deliberately concealed’ the concealment had to be an intended concealment. A claimant had to show that some fact relevant to his right of action had been concealed from him, either by positive act of concealment or by withholding of relevant information, but, in either case, with the intention of concealing the fact or facts in question. Alternatively, the claimant could show that the defendant knew he was committing a breach of duty, or intended to commit the breach of duty, then, if the circumstances were such that the claimant was unlikely to discover for some time that the breach of duty had been committed, the facts involved in the breach were taken to have been deliberately concealed for the purposes of s32(1)(b). Subsection (2), thus construed provided an alternative, and in some cases what could well be an easier, means of establishing the facts necessary to bring the case within s32(1)(b). The statutory language did not require that the behaviour of the defendant be unconscionable and its addition as a criterion to be satisfied under s32 was unnecessary and unjustified. The plain words of the statutory requirements, ‘deliberately concealed’ and ‘deliberate commission of a breach of duty’ needed no embellishment.