Cave v Robinson Jarvis and Rolf (a Firm): HL 25 Apr 2002

An action for negligence against a solicitor was defended by saying that the claim was out of time. The claimant responded that the solicitor had not told him of the circumstances which would lead to the claim, and that deliberate concealment should extend the limitation period.
Held: Brocklesby was wrongly decided. Section 32 should deprive a defendant of his limitation defence where either he took active steps to conceal his failure, or the failure itself was deliberate and the concealment might not be discovered for sometime. Where the failing was non-deliberate negligence, a failure to disclose was not concealment. Deliberate commission did not require unconscionable behaviour, but was still to be contrasted with behaviour which was accidental, or inadvertent.
Lord Millettt said: ‘As I have explained, in enacting the 1980 Act Parliament substituted ‘deliberate concealment’ for ‘concealed fraud’. This is a different and more appropriate concept. It cannot be assumed that the law remained the same. But reference to the old law explains why Parliament enacted section 32(2) and did not rely on section 32(1)(b) alone to cover the whole ground. With all reference to fraud or conscious impropriety omitted, there was an obvious risk that ‘deliberate concealment’ might be construed in its natural sense as meaning ‘active concealment’ and not as embracing mere non-disclosure. Section 32(2) was therefore enacted to cover cases where active concealment should not be required. But such cases were limited in two respects: first, the defendant must have been guilty of a deliberate commission of a breach of duty; and secondly, the circumstances must make it unlikely that the breach of duty will be discovered for some time.
Given that section 32(2) is (or at least may be) required to cover cases of non-disclosure rather than active concealment, the reason for limiting it to the deliberate commission of a breach of duty becomes clear. 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 my opinion, section 32 deprives a defendant of a limitation defence in two situations: (i) where he takes active steps to conceal his own breach of duty after he has become aware of it; and (ii) 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. But it does not deprive a defendant of a limitation defence where he is charged with negligence if, being unaware of his error or that he has failed to take proper care, there has been nothing for him to disclose.’
Lord Scott said: ‘If the claimant can show that the defendant knew he was committing a breach of duty, or intended to commit the breach of duty – I can discern no difference between the two formulations; each would constitute, in my opinion, a deliberate commission of the breach – then, if the circumstances are such that the claimant is unlikely to discover for some time that the breach of duty has been committed, the facts involved in the breach are taken to have been deliberately concealed for subsection (1)(b) purposes.
Morritt LJ said, in [Brocklesby v Armitage and Guest (Note) [2002] 1 WLR 598], that in general a person is assumed to know the legal consequences of his actions and that, therefore, if an act has been done intentionally, the actor’s unawareness of its legal consequences would be immaterial and no defence. The premise is, in my opinion, much too wide to constitute a satisfactory approach to construction of a statutory provision such as section 32(2). A person may or may not know that an act of his or an omission to do or say something or other constitutes a breach of tortious or contractual duty. His knowledge or lack of it may well be immaterial to the question whether a cause of action for which he is liable has accrued to the person injured by the act or omission. But that is no reason at all why Parliament, in prescribing the circumstances in which the person injured by the act or omission can escape from a Limitation Act defence, should not distinguish between the case where the actor knows he is committing a breach of duty and the case where he does not. The clear words of section 32(2) – ‘deliberate commission of a breach of duty’ – show that Parliament has made that distinction.
It follows that, in my opinion, the construction of section 32(2) adopted in the Brocklesby case was wrong.’

Lord Slynn of Hadley, Lord Mackay of Clashfern, Lord Hobhouse of Woodborough, Lord Millett and Lord Scott of Foscote
Times 07-May-2002, [2002] UKHL 18, [2003] 1 AC 384, [2002] 2 WLR 1107, [2002] 19 EGCS 146, (2002) 81 Con LR 25, [2002] 2 All ER 641, [2002] PNLR 25, [2003] 1 CLC 101, [2002] 19 EGCS 146, 81 Con LR 25, [2003] 1 CLC 101
House of Lords, Bailii
Limitation Act 1980 32(2)
England and Wales
OverruledJames Brocklesby v Armitage and Guest (a Firm) CA 9-Jul-1999
A failure by an adviser to make his position clear when he thought he had been negligent, could constitute a ‘deliberate’ act within section 32 even if the defendant’s actions were not motivated by any intention to deceive the claimant: ‘it is not . .
CitedBeaman v ARTS Ltd CA 1949
The italian plaintiff had left Egland in 1935 leaving certain valuables with the defendants for safe keeping. During the war, the property was released to the authorities as alien property, who, informed by the defemdant that they were of no value, . .
Appeal fromCave v Robinson Jarvis and Rolf CA 20-Feb-2001
The court was asked as to the meaning of the word ‘deliberate’ as it appeared in section 32(2) of the 1980 Act. . .

Cited by:
CitedWilliams v Fanshaw Porter and Hazelhurst CA 18-Feb-2004
The claimant alleged that her solicitors had concealed from her the fact that they had entered a consent order which dismissed her claim for medical negligence.
Held: The solicitor had failed to inform the client that her original claim . .
CitedChagos Islanders v Attorney-General and Another CA 22-Jul-2004
The claimants sought leave to appeal against a finding that they had no cause of action for their expulsion from their islands.
Held: ‘Exile without colour of law is forbidden by Magna Carta. That it can amount to a public law wrong is already . .
CitedThe Law Society v Sephton and Co and others CA 13-Dec-2004
The Society appealed dismissal for limitation of its claim against the defendant firm of accountants arising from alleged fraud in approval of a solicitor’s accounts.
Held: The liability did not arise until the Society decided to make . .
CitedPolley v Warner Goodman and Streat (A Firm) CA 30-Jun-2003
A cause of action in negligence is complete once the claimant has suffered loss as a result of the negligence, even if the existence of the loss (and indeed of the negligence) is not, and could not be, known to him, and even where that loss is much . .
CitedDenekamp v Denekamp CA 8-Dec-2005
Appeal against striking out of claim and civil restraint order. . .
CitedMortgage Express v Abensons Solicitors (A Firm) ChD 20-Apr-2012
The claimant lender sought damages against the defendant solicitors alleging negligence and breach of fiduciary duty by them in acting for them on mortgage advances. The defendants now argued that the allowance of an amendment to add the allegation . .
CitedBurnden Holdings (UK) Ltd v Fielding and Another CA 17-Jun-2016
The company, now in liquidation sought to claim for the alledged misapplication by former directors of its funds in 2007. It now appealed against a summary rejection of its claim as time barred.
Held: The appeal succeeded. Section 21(1)(b) . .
CitedSiddiqui v University of Oxford QBD 5-Dec-2016
The University applied to have struck out the claim by the claimant for damages alleging negligence in its teaching leading to a lower class degree than he said he should have been awarded.
Held: Strike out on the basis that the claim was . .

Lists of cited by and citing cases may be incomplete.

Limitation, Professional Negligence

Leading Case

Updated: 01 November 2021; Ref: scu.170275