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Cave v Robinson Jarvis and Rolf, House of Lords

30 April 2002
The issues

Limitation – Deliberate Concealment – Limitation Act 1980 Section 32 (1) (b) (2)

The facts

The Claimant instructed the Defendant firm to act for him in respect of his contracting for mooring rights over a companies’ land. The contract was completed in March 1989. In February 1994 the Claimant was told by the companies’ receivers that he no longer exercised those rights. He wrote to the Defendant firm in 1995 and 1996. He received no answers. In January 1998 he issued a Writ for negligence. The Defendants pleaded limitation. He alleged in his reply that the Defendant’s failure to answer his letters constituted “deliberate concealment” (Section 32 (1) (b) Limitation Act 1980) and that their negligent drafting of the contract had been a deliberate comission of a breach of duty – Section 32 (2). In Brocklesby v Armitage & Guest, the Court of Appeal held that Section 32 (2) came into play whenever there was an intentional act constituting a breach of duty whether or not the Actor knew. Effectively a two man Court held that ignorance of the law is no defence and that is was enough to bring a case within the sub section if the Defendant should have known that he was acting or failing to act – it was not necessary that he should have known that his act or failure to act gave rise to a breach of duty.

The decision

Brocklesby was wrongly decided. On this understanding of the law someone who performs his duty conscientiously but is subsequently found to be negligent is liable to be sued without benefit of limitation. Section 32 deprives the Defendant of limitation as a defence in two situations – where he takes active steps to conceal his own breach of duty after he had become aware of it and 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 for negligence if, being unaware of his error or because he has failed to take proper care, there has been nothing for him to disclose”.

Appeal allowed.

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