Flaux J summarised the principles to be applied when considering what discovery of a fraud was, and what was ‘reasonable diligence’ so as to set the limitation clock started.
He observed that: ‘If section 32(1) involved a statutory assumption that the claimant was on notice of something meriting investigation, it would make it very difficult for many claimants to satisfy the s.32(1) test.’
The approach indicated by Henderson LJ in Gresport Finance v Battaglia was to be understood on the basis that: ‘ . . the drafters of s.32(1) were assuming that there would in fact be something which (objectively) had put the claimant on notice as to the need to investigate, to which the statutory reasonable diligence requirement would then attach (and which involved an assumption that the claimant desired to investigate the matter as to which it was or ought to have been put on enquiry).’
The approach he had summarised is consistent with the views of other judges, as to what may amount to a ‘trigger’ and observed that: ‘There will be many claims when it will be objectively apparent that ‘something has gone wrong’ – where the claimant has lost property, failed to receive something it expected to receive, or suffered injury of some kind – which event ought itself to prompt the claimant to ask ‘why’ and investigate accordingly.’
Judges:
Foxton J
Citations:
[2020] EWHC 415 (Comm)
Links:
Statutes:
Jurisdiction:
England and Wales
Citing:
Cited – Gresport Finance Ltd v Battaglia CA 23-Mar-2018
Henderson LJ referred to the judgment of Neuberger LJ in Sephton in which he discussed the need for there to be an assumption that the claimant desires to know that there has been a fraud. Henderson LJ observed: ‘Another way to make the same point . . .
Cited by:
Preferred – Boyse (International) Ltd v Natwest Markets Plc and Another ChD 27-May-2020
Claim alleging misselling of interest rate hedging products. The court considered the defendants strike out application, and applications for leave to amend pleadings.
Held: it will normally be appropriate for summary judgment to be pursued on . .
Lists of cited by and citing cases may be incomplete.
Limitation, Torts – Other
Updated: 27 November 2022; Ref: scu.648590