| Date | 10 July 2002 |
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| Judgment | Cave -v- Robinson Jarvis & Rolf, HL 25 April 2002 |
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| The Issue | Whether a professional person can rely upon the statute of limitations as a defence to actions for professional negligence. |
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| Implication |
Where a professional person deliberately gives advice which later proves to be negligent, that does not amount to deliberate concealment under Section 32 of the 1980 Limitation Act. A professional person will be entitled to a limitation defence if he is unaware of his error. |
printAs a matter of public policy, statute provides certain limitations of time within which claims for damages must be brought. The first statute was the Limitations Act of 1623. 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 date at which a cause of action first arose. The statutes of limitation have been described as statutes of peace. The underlying policy is that a defendant should be spared the injustice of having to face a stale claim. It has been said that long dormant claims often have more of cruelty than of justice in them. 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. Moreover, it is in the public interest that a person with a good cause of action should pursue it within a reasonable period. All of this assumes that the plaintiff knows, or ought to know, that he has a cause of action. 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 current legislation is contained in the Limitation Act 1980. Section 32(1)(b) 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. These provisions were examined in July 1999 by the Court of Appeal in the case of Brocklesby -v- Armitage & Guest. Brocklesby claimed that Armitage, who were a firm of solicitors, had negligently failed to procure his release form his mortgage obligations. Armitage pleaded that the action was statute barred. Brocklesby argued that the commencement of the limitation period should be postponed as a result of deliberate concealment by Armitage. Surprisingly, the Court of Appeal agreed with Brocklesby, and stated that it was sufficient that "the commission of the act was deliberate in the sense of being intentional and that that act or omission did involve a breach of duty, whether or not the actor appreciated the legal consequence". On this footing, a person who sets out conscientiously to perform his duty, but does so in a way which is subsequently found to be negligent is liable to be sued without limits of time, even where he denies that his conduct was negligent. This decision has been examined by the House of Lords in the more recent case of Cave -v- Robinson Jarvis & Rolf. Cave instructed Robinson, a firm of solicitors, to act for him in connection with a transaction, under which a company, Hyde Securities, was to grant him mooring rights for a period of 100 years over the company's land on the Isle of Wight. The transaction was completed in March 1989. In 1994, Hyde Securities went into receivership and the following month the receivers informed Mr Cave that his mooring rights were no longer valid. For a while Mr Cave did nothing about this information, but in November of the following year, he wrote to Robinson complaining that his mooring rights were being challenged and asking for assistance in resisting this challenge, or for an explanation as to what had gone wrong. Mr Cave received no answer. He wrote again on a number of occasions and eventually consulted other solicitors and commenced proceedings in January 1998. Robinson, in its defence, denied negligence and pleaded that the action was time barred. Cave, relying on the decision in Brocklesby argued that the commencement of the limitation period should be postponed on the basis that the negligent drafting of the agreement was an intentional act done in circumstances in which the breach of duty was unlikely to be discovered for some time. Lord Millett considered the decision in Brocklesby to be particularly harsh. In the absence of any intentional wrongdoing, he considered it neither just nor consistent with the policy of the Limitation Acts to expose a professional person to a claim for negligence long after he has retired from practice and has ceased to be covered by indemnity insurance. In a careful analysis of the statute and its underlying purpose, Lord Millett concluded that it is only where the defendant is aware of his own deliberate wrongdoing that it is appropriate to penalise him for failing to disclose it. In his opinion, Brocklesby was wrongly decided. In Section 32 of the Limitation Act deprived the defendant of a limitation defence in two situations: (1) where he takes active steps to conceal his own breach of duty after he has become aware of it, and (2) where he is guilty of deliberate wrongdoing and conceals or fails to disclose it in circumstances where it is unlikely to be discovered for some time. In consequence, Robinson was entitled to rely upon its limitation defence.
CJ-0226
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