Cave v Robinson Jarvis & Rolf

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD SLYNN OF HADLEY,LORD MACKAY OF CLASHFERN,LORD HOBHOUSE OF WOODBOROUGH,LORD MILLETT,LORD SCOTT OF FOSCOTE
Judgment Date25 Apr 2002
Neutral Citation[2002] UKHL 18

[2002] UKHL 18

HOUSE OF LORDS

Lord Slynn of Hadley

Lord Mackay of Clashfern

Lord Hobhouse of Wood-borough

Lord Millett

Lord Scott of Foscote

Cave
(Respondent)
and
Robinson Jarvis & Rolf
(A Firm) (Appellants)
LORD SLYNN OF HADLEY

My Lords,

1

I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Scott of Foscote. I agree with him for the reasons he gives that the appeal should be allowed.

LORD MACKAY OF CLASHFERN

My Lords,

2

I have had the advantage of reading in draft the speeches prepared by my noble and learned friends Lord Millett and Lord Scott of Foscote. I agree that this appeal should be allowed for the reasons which they have given.

LORD HOBHOUSE OF WOODBOROUGH

My Lords,

3

I agree that this appeal should be allowed for the reasons to be given by my noble and learned friends Lord Millett and Lord Scott of Foscote whose opinion I have read in draft.

LORD MILLETT

My Lords,

4

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Scott of Foscote. I gratefully adopt his narrative of the facts and the procedural history of these proceedings.

5

The limitation of actions is entirely statutory. The first statute was The Limitations Act 1623 ( 21 Jac 1, c 16). For almost four centuries, therefore, it has been the policy of the legislature that legal proceedings should be brought, if at all, within a prescribed period from the accrual of the cause of action. The statutes of limitation have been described as "statutes of peace". They are regarded as beneficial enactments and are construed liberally.

6

The underlying policy to which they give effect is that a defendant should be spared the injustice of having to face a stale claim, that is to say one with which he never expected to have to deal: see Donovan v Gwentoys Ltd [1990] 1 WLR 472, 479A per Lord Griffiths. As Best CJ observed nearly 200 years ago, long dormant claims have often more of cruelty than of justice in them: see A'Court v Cross (1825) 3 Bing 329, 332-333. With the passage of time cases become more difficult to try and the evidence which might have enabled the defendant to rebut the claim may no longer be available. It is in the public interest that a person with a good cause of action should pursue it within a reasonable period.

7

But this assumes that the plaintiff knows or ought to know that he has a cause of action. In common justice a plaintiff ought not to find that his action is statute-barred before he has had a reasonable opportunity to bring it. To this end the Limitation Acts contain provisions which extend, suspend or postpone the commencement of the limitation period in prescribed circumstances. The particular provision with which your Lordships are concerned is contained in section 32(2) of the Limitation Act 1980.

8

Section 32(1)(b) of the 1980 Act postpones the commencement of the limitation period where

"any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant".

In such a case the period of limitation does not begin to run until the plaintiff discovers the concealment or could with reasonable diligence discover it. The rationale for this provision is plain: if the defendant is not sued earlier, he has only himself to blame.

9

Section 32(2) provides:

For the purposes of subsection (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."

The rationale for this is less clear, but becomes apparent from the case law on earlier statutes.

10

In Brocklesby v Armitage & Guest (Note) [2002] 1 WLR 598 the plaintiff claimed that the defendants, who were a firm of solicitors, had negligently failed to procure his release from his mortgage obligations. The defendants were not accused of any impropriety or deliberate wrongdoing or of having deliberately concealed anything from the plaintiff. They denied that the plaintiff was their client or that they owed him any duty of care, and denied that they had been negligent in any event. They also pleaded that the action was statute-barred. In his reply the plaintiff sought to rely on section 32(2) of the Act, but he did not and could not allege that the defendants were aware of the fact that they had been negligent.

11

Despite the absence of any allegation of deliberate wrongdoing, a two-man Court of Appeal held that the plaintiff had sufficiently pleaded a "deliberate commission of a breach of duty" within the meaning of section 32(2) of the 1980 Act. In the course of an extempore judgment Morritt LJ held that ignorance of the law is no defence, and that it is sufficient to bring the case within the subsection that the defendant should have known that he was acting (or presumably failing to act); it was not necessary that he should also have known that his act (or failure to act) gave rise to a breach of duty. It was sufficient that (at p 605G)

"the commission of the act was deliberate in the sense of being intentional and that that act or omission, as the case may be, did involve a breach of duty whether or not the actor appreciated that legal consequence."

12

On this footing a person who sets out conscientiously to perform his duty but does so in a way which is subsequently found to have been negligent, thus constituting a breach of his duty of care, is liable to be sued without limit of time even where he denies that his conduct was negligent.

13

Brocklesby v Armitage & Guest was followed in Liverpool Roman Catholic Archdiocese Trustees Inc v Goldberg [2001] 1 All ER 182, where the plaintiff alleged that the defendant had given it negligent tax advice. The defendant denied that his advice had been wrong, let alone negligently wrong. Following the decision in the Brocklesbycase, Laddie J held that it was sufficient to bring the case within section 32(2) that the defendant had intentionally given the advice in question and that (if negligent) it amounted to a breach of duty; it was not necessary that he should have appreciated that his advice was wrong or that he had been negligent. Even if all the facts are known to a plaintiff, the judge held, the intentional commission of a breach of duty in circumstances where the breach is unlikely to be discovered for some time results in a legal fiction, namely that the facts are unknown.

14

In the present case counsel for Mr Cave has found himself unable to support this reasoning. He points out that the legal fiction, if any, is not that the facts are unknown to the plaintiff, but that they have been deliberately concealed from him by the defendant. In such circumstances, however, the start of the limitation period is postponed only until the plaintiff discovers the concealment or could with reasonable diligence have discovered it. If the relevant facts are already known to him, counsel concedes, treating them as deliberately concealed from him is of no effect. The start of the limitation period is not postponed even momentarily, for the facts which are deemed to be concealed from the plaintiff are at once discovered.

15

For my own part, I do not accept that all the facts were known to the plaintiff in the Goldberg case, for it did not know that the advice was wrong. But neither did the defendant. Nor will that fact be known to either party until the case is tried on the merits. The effect of Brocklesby v Armitage & Guest is to deprive a professional man, charged with having given negligent advice and who denies that his advice was wrong let alone negligent, of any effective limitation defence. However stale the claim, he must defend the action on the merits, for he will not have the benefit of a limitation defence unless he can show that his advice was not negligent. This subverts the whole purpose of the Limitation Acts. The harshness of the rule is evident. In the absence of any intentional wrongdoing on his part, it is neither just nor consistent with the policy of the Limitation Acts to expose a professional man to a claim for negligence long after he has retired from practice and has ceased to be covered by indemnity insurance.

16

The decision in the Brocklesby case has been the subject of much criticism, not least by the Law Commission. In the present case a full Court of Appeal [2002] 1 WLR 581 expressed strong reservations about the decision but considered themselves bound by it. They noted, at p 589, that it was an unreserved judgment in a case in which numerous authorities both judicial and textbook were not cited:

17

The question is whether the words "deliberate commission of a breach of duty" in section 32(2) of the 1980 Act mean "deliberate commission of [an act or omission, being an act or omission which gives rise to] a breach of duty" or simply mean "deliberate breach of duty". If the latter, then they refer only to a breach of duty which has been committed intentionally. The distinction is between intentional wrongdoing on the one hand and negligence or inadvertent wrongdoing on the other.

18

In a vigorous defence of the decision in the Brocklesby case counsel for Mr Cave conducted a sustained analysis of the relationship between section 32(1)(b) and section 32(2). He submitted that, on the defendants' construction, section 32(2) is otiose. If it is limited to deliberate wrongdoing of which the defendant was aware but the plaintiff was not, then this must be the result of deliberate concealment which is already covered by section 32(1)(b). "Concealment" means "keeping secret", and (he said) the pre-1980 case law showed that it covered non-disclosure as well as active concealment.

19

A defendant was formerly unable to take advantage of the Limitation Acts if he had been guilty of "concealed fraud"....

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