Supreme Court simplifies application of section 32 of the Limitation Act 1980

This case review was authored by Matei Ichim, Trainee Solicitor, Taunton.

This judgment provides guidance on the interpretation of sections 32(1)(b) and 32(2) of the Limitation Act 1980 and simplifies an area of the law which has recently become complex.

Background

On 26 July 2006, Mrs Potter (the claimant) entered into a loan agreement with Canada Square Operations Ltd (the defendant). The loan comprised a cash amount as well as a payment protection premium. The premium related to the claimant’s purchase of a PPI (Payment Protection insurance) policy.

The defendant was also an insurance intermediary. Over 95% of the amount described in the agreement as the payment protection premium constituted the defendant’s commission on the PPI policy. The defendant did not disclose to the claimant that it would receive commission on the policy.

In December 2018, Mrs Potter issued a claim against Canada Square, seeking to recover the amount paid in regard to PPI. Mrs Potter claimed that the failure to disclose the commission rendered the relationship “unfair” under section 140A of the Consumer Credit Act 1974. Canada Square argued that the matter was time-barred under section 9 of the Limitation Act 1980.

By the time of trial in the county court, the issue in dispute was whether the claim was time-barred or whether the period for bringing the claim could be extended under sections 32(1)(b), read by itself, or together with section 32(2) of the Limitation Act 1980.

Section 32(1)(b) postpones the commencement of the standard limitation period where “any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant”.

Section 32(2), states that for the purposes of the above section, “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 county court held that section 32 applied. Canada Square’s appeals to the High Court and Court of Appeal were unsuccessful. The case was then appealed to the Supreme Court.

Case law

Common law interpretation of the above sections had become increasingly complicated. The cases of Sheldon v RHM Outhwaite (Underwriting Agencies) Ltd [1996] (Sheldon) and Cave v Robinson Jarvis & Rolf [2002] (Cave), initially emphasised the ordinary meaning of the language used in section 32.

Sheldon found that the wording of section 32(1)(b) highlighted the plain and clear interpretation of deliberate concealment. Cave supported the approach taken in Sheldon. At paragraph 65, Lord Scott stated by way of concluding remark: “The plain words of the statutory requirements, ‘deliberately concealed’ and ‘deliberate commission of a breach of duty’ need no embellishment”.

However, the decisions of Williams v Fanshaw Porter & Hazelhurst [2004] (Williams) and AIC Ltd v ITS Testing Services (UK) Ltd (The Kriti Palm) [2006] began a process in which the courts moved further away from the clear language interpretation of the provisions.

The judgment in Williams added further requirements which had no basis in the plain and clear wording of the section. Park J stated at paragraph 14: “I would go further and accept that the fact which he decides not to disclose either must be one which it was his duty to disclose”.

The judgment in AIC Ltd v ITS Testing Services (UK) Ltd (The Kriti Palm) [2006] treated the duty of disclosure adopted in Williams as a necessary element. At paragraph 321, Rix LJ stated:

This culminated in the Court of Appeal’s decision in this present case. Rose LJ considered that 32(1)(b) could be engaged either by a positive act of concealment of a relevant fact or by withholding relevant information about that fact. Furthermore, the meaning of “deliberate” for both sections was found to encompass recklessness. The Court of Appeal found that the claimant could rely on both sections.

The Supreme Court’s decision

The Supreme Court upheld the Court of Appeal’s decision that the claimant could rely on s32(1)(b) but gave some much needed clarification as to how the words “deliberately” and “concealed” should be interpreted.

The Supreme Court found that the following elements are in fact required:

• A fact relevant to the claimant’s cause of action.
• The concealment of that fact by the defendant, either by a positive act of concealment or by a withholding of the relevant information.
• An intention on the part of the defendant to conceal the fact in question.

In regard to section 32(2)(2), the Supreme Court first considered that the ordinary use of the adjective “deliberate” differs from “reckless”. The decision in Cave stated that a deliberate breach of duty requires the defendant to know he is committing a breach. It therefore follows that interpretations of section 32(2) should adhere to the ordinary meaning of the “deliberate”. This interpretation leaves no room for an element of recklessness. The Supreme Court therefore found that the claimant could not have relied on section 32(2).

Comment

The Supreme Court’s decision provides authoritative guidance on section 32 of the Limitation Act 1980. Future judgments on postponement of the limitation period have a clear precedent which emphasises the plain and clear language within the section.

The judgment is also notable for its clear breakdown of the elements required under section 32(1)(b). A claimant must evidence that the defendant deliberately concealed a fact relevant to the claimant’s cause of action, and that there was intention on the part of the defendant.

Finally, the judgment has clarified the meaning of “deliberate” for the purposes of section 32(2). Future applications of the law now have clear guidance that states it does not include any element of recklessness.