CAVE V ROBINSON JARVIS & ROLF (A FIRM) [2002] UKHL 18
FACTS:-
In February 1989, the Claimant retained the Defendant in connection with the sale of land on the Isle of Wight. The relevant transactions took place in March 1989. It was alleged that the Defendant failed to (a) draft a deed as was necessary to secure the Claimant’s mooring rights (b) register the deed. However it was only in early 1994 that the Claimant found out that the existence of his mooring right was denied.
The trial judge held that the alleged breaches of duty occurred in circumstances in which it was unlikely that they would be discovered until the Claimant had reason to subject it to the scrutiny of another solicitor, and such reason did not arise until 1994.
Unless the Claimant could bring himself within the provisions of section 32 of the Limitation Act 1980, his claim in contract was statute barred under section 5. Similarly his claim in tort would have been barred by section 2 and although subject to the latent damage provisions of Section 14A, it was nonetheless time barred because the action was not brought within the period of latent damage extension.
The Claimant alleged that the Defendants (i) had in fact knowingly and deliberately concealed the Claimant’s right of action, and that, even if they had no knowledge or intention of concealment, (ii) they were nonetheless guilty of deliberate concealment within the meaning of Section 32(2) on the grounds that they had deliberately committed an act or omission which amounted to a breach of duty in circumstances where it was unlikely to be discovered for some time.
The trial judge had decided the second issue (ii) should be resolved in favour of the Claimant, relying on the case of Brocklesby v Armitage & Guest [2001] 1 All ER 172. The Court of Appeal agreed. The matter then went to the House of Lords.
JUDGMENT:-
Lord Millett gave the lead judgment with which Lords McKay and Hobhouse agreed. He considered the history of limitation law and in particular Section 32(2) of the Limitation Act 1980.
Section 32, subsections (1) and (2). This stated:-
“(1) …..where in the case of any action for which a period of limitation is prescribed by this Act, either – (a) the action is based upon the fraud of the defendant; or (b) any fact relevant to the plaintiff’s right of action has been
deliberately concealed from him by the defendant; or (c) the action is for relief from the consequences of the mistake; the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment, or mistake (as the case may be) or could with reasonable diligence have discovered it.”
(2) For the purposes of sub-section 1 above, 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.”
Lord Millett also referred to the case of Brocklesbury v Armitage & Guest [2002] 1 WLR 598. That case was followed by Liverpool Roman Catholic Archdioceses Trustees Inc v Goldberg [2001] 1 All ER 182.
Concealment and non-disclosure were different concepts, but they had this much in common; they both required knowledge of the fact which was to be kept secret. In enacting the 1980 Act, Parliament substituted “deliberate concealment” for “concealed fraud”. Section 32(2) was enacted to cover cases where active concealment should not be required, however the Defendant had to be guilty of a deliberate commission of a breach of duty, and secondly, the circumstances had to make it unlikely that that the breach of duty would be discovered for some time.
In Lord Millett’s opinion, 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 a deliberate wrongdoing and concealed or failed to disclose it in circumstances where it was unlikely to be discovered for some time. However it did not deprive a Defendant of a limitation defence where he was charged with negligence if, being unaware of his error or that he had failed to take proper care, there was nothing for him to disclose.
If the case of Brocklesbury was correct then a surgeon who negligently left a swab in a patient’s stomach but did not realise that he had done so, could plead a limitation defence. However a solicitor who gave his client negligent advice could not plead such a defence because he knew what advice he had given, even though he did not realise that it was wrong. There was no sensible basis for such a distinction.
The Court of Appeal had said that ignorance of the law was no defence in order to justify their construction of Section 32(2) of the 1980 Act. Lord Millett said that the maxim “ignorance of the law is no defence” did not convert a lawyer’s inadvertent want of care into an intentional tort.
Lord Scott said that under the law applicable prior to 1980, a limitation defence might have succeeded. The Claimant had to allege something more than an intentional but negligent act or omission in order to claim the benefit of Section 26.
The problem with the case of Brocklesby was that it was an interlocutory appeal on a pleading point, and heard by a two man Court of Appeal. The decision of Morritt LJ in that case reversed what previously had been believed to be the position, namely that mere negligence would never by itself be enough to bring about a Section 32(1) postponement of time. That decision was followed in the case of Liverpool Roman Catholic Archdioceses Trustees Inc.
In the opinion of Lord Scott, the decision in Brocklesby was incorrect. “Deliberate commission of a breach of duty..” did not mean an inadvertent commission of a breach of duty. The concealment had to be intended. In relation to Section 32(2) it was said in Brocklesby that this must add something to Section 32(1), otherwise Section 32(2) was quite redundant. Lord Scott said that Subsection (2) provided an alternative route. The Claimant need not concentrate on the allegedly concealed facts, but could instead concentrate on the commission of the breach of duty. Therefore the construction of Section 32(2) adopted in Brocklesby was wrong.
FACTS:-
In February 1989, the Claimant retained the Defendant in connection with the sale of land on the Isle of Wight. The relevant transactions took place in March 1989. It was alleged that the Defendant failed to (a) draft a deed as was necessary to secure the Claimant’s mooring rights (b) register the deed. However it was only in early 1994 that the Claimant found out that the existence of his mooring right was denied.
The trial judge held that the alleged breaches of duty occurred in circumstances in which it was unlikely that they would be discovered until the Claimant had reason to subject it to the scrutiny of another solicitor, and such reason did not arise until 1994.
Unless the Claimant could bring himself within the provisions of section 32 of the Limitation Act 1980, his claim in contract was statute barred under section 5. Similarly his claim in tort would have been barred by section 2 and although subject to the latent damage provisions of Section 14A, it was nonetheless time barred because the action was not brought within the period of latent damage extension.
The Claimant alleged that the Defendants (i) had in fact knowingly and deliberately concealed the Claimant’s right of action, and that, even if they had no knowledge or intention of concealment, (ii) they were nonetheless guilty of deliberate concealment within the meaning of Section 32(2) on the grounds that they had deliberately committed an act or omission which amounted to a breach of duty in circumstances where it was unlikely to be discovered for some time.
The trial judge had decided the second issue (ii) should be resolved in favour of the Claimant, relying on the case of Brocklesby v Armitage & Guest [2001] 1 All ER 172. The Court of Appeal agreed. The matter then went to the House of Lords.
JUDGMENT:-
Lord Millett gave the lead judgment with which Lords McKay and Hobhouse agreed. He considered the history of limitation law and in particular Section 32(2) of the Limitation Act 1980.
Section 32, subsections (1) and (2). This stated:-
“(1) …..where in the case of any action for which a period of limitation is prescribed by this Act, either – (a) the action is based upon the fraud of the defendant; or (b) any fact relevant to the plaintiff’s right of action has been
deliberately concealed from him by the defendant; or (c) the action is for relief from the consequences of the mistake; the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment, or mistake (as the case may be) or could with reasonable diligence have discovered it.”
(2) For the purposes of sub-section 1 above, 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.”
Lord Millett also referred to the case of Brocklesbury v Armitage & Guest [2002] 1 WLR 598. That case was followed by Liverpool Roman Catholic Archdioceses Trustees Inc v Goldberg [2001] 1 All ER 182.
Concealment and non-disclosure were different concepts, but they had this much in common; they both required knowledge of the fact which was to be kept secret. In enacting the 1980 Act, Parliament substituted “deliberate concealment” for “concealed fraud”. Section 32(2) was enacted to cover cases where active concealment should not be required, however the Defendant had to be guilty of a deliberate commission of a breach of duty, and secondly, the circumstances had to make it unlikely that that the breach of duty would be discovered for some time.
In Lord Millett’s opinion, 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 a deliberate wrongdoing and concealed or failed to disclose it in circumstances where it was unlikely to be discovered for some time. However it did not deprive a Defendant of a limitation defence where he was charged with negligence if, being unaware of his error or that he had failed to take proper care, there was nothing for him to disclose.
If the case of Brocklesbury was correct then a surgeon who negligently left a swab in a patient’s stomach but did not realise that he had done so, could plead a limitation defence. However a solicitor who gave his client negligent advice could not plead such a defence because he knew what advice he had given, even though he did not realise that it was wrong. There was no sensible basis for such a distinction.
The Court of Appeal had said that ignorance of the law was no defence in order to justify their construction of Section 32(2) of the 1980 Act. Lord Millett said that the maxim “ignorance of the law is no defence” did not convert a lawyer’s inadvertent want of care into an intentional tort.
Lord Scott said that under the law applicable prior to 1980, a limitation defence might have succeeded. The Claimant had to allege something more than an intentional but negligent act or omission in order to claim the benefit of Section 26.
The problem with the case of Brocklesby was that it was an interlocutory appeal on a pleading point, and heard by a two man Court of Appeal. The decision of Morritt LJ in that case reversed what previously had been believed to be the position, namely that mere negligence would never by itself be enough to bring about a Section 32(1) postponement of time. That decision was followed in the case of Liverpool Roman Catholic Archdioceses Trustees Inc.
In the opinion of Lord Scott, the decision in Brocklesby was incorrect. “Deliberate commission of a breach of duty..” did not mean an inadvertent commission of a breach of duty. The concealment had to be intended. In relation to Section 32(2) it was said in Brocklesby that this must add something to Section 32(1), otherwise Section 32(2) was quite redundant. Lord Scott said that Subsection (2) provided an alternative route. The Claimant need not concentrate on the allegedly concealed facts, but could instead concentrate on the commission of the breach of duty. Therefore the construction of Section 32(2) adopted in Brocklesby was wrong.