Time Limits

November 16th, 2023 by James Goudie KC

Limitation periods for bringing claims are set out in the Limitation Act 1980. The commencement of the period is postponed when any fact relevant to the right of action has been “deliberately concealed” from the claimant by the defendant. “Deliberate concealment” includes when there is a “deliberate commission of a breach of duty” in circumstances in which it is unlikely to be discovered for some time. The meaning of “deliberately” and “concealed” in this context are clarified by the Supreme Court in CANADA SQUARE OPERATIONS LIMITED v POTTER (2023) UKSC 41.

The Supreme Court holds that a fact will have been “concealed” if the defendant has kept it secret from the claimant, either by taking active steps to hide it or by failing to disclose it. Contrary to previous Court of Appeal authority, the claimant does not need to establish that the defendant was under a legal, moral or social duty to disclose the fact, nor does she need to show that the defendant knew the fact was relevant to the claimant’s right of action. All that is required is that the defendant deliberately ensures that the claimant does not know about the fact in question and so cannot bring proceedings within the ordinary time limit.The Supreme Court also holds that a claimant must show that the defendant knew it was committing a breach of duty or intended to commit a breach of duty. It rejects the submission that “deliberate” includes “reckless” so that a defendant could be said to commit a breach of duty deliberately if it realised that there was a risk that what it was doing might be a breach of duty and took that risk in circumstance where it was objectively unreasonable for it to do so.

Comments are closed.