Del Castillo v Coubrough

For limitation purposes, a claimant cannot postpone the commencement of time under section 32 of the Limitation Act 1980 where, with reasonable diligence, the relevant facts could have been discovered earlier. Constructive knowledge may arise when the claimant could reasonably have obtained and examined documents already offered to her. An appellate court will rarely interfere with a trial judge’s factual finding that documents could and should have been obtained earlier. Authorities concerning cases in which expert assistance was needed to acquire the relevant knowledge are distinguishable where the necessary knowledge could be obtained from existing documents without expert advice.

The applicant claimed against her former solicitor for breach of contract, negligence, misrepresentation and undue influence arising from ancillary relief proceedings concluded by a consent order in February 1994. She obtained the solicitor’s file in 1998 and commenced proceedings, alleging that relevant facts had been concealed.

Rimer J tried a preliminary limitation issue. He presumed the alleged negligence and other wrongdoing in the applicant’s favour, but held that she could and should have obtained the file promptly after the consent order. Her claim was therefore statute barred under the Limitation Act 1980. The applicant sought permission to appeal, relying principally on section 32 and cited authorities concerning concealment and knowledge.

1. Application refused. The judge had considered and applied section 32 of the Limitation Act 1980. Even assuming relevant concealment, the applicant could, with reasonable diligence, have discovered all facts needed for her claim by a date well before the expiry of the six-year limitation period.
2. The finding that the applicant could and should have obtained the file promptly after the consent order was a factual finding made after hearing evidence. The appeal had no real prospect of displacing it. The applicant had been dissatisfied with the settlement from the outset and had been offered the file when the proceedings concluded.
3. The fact that the defendant needed to retain the file for a period to tax her costs did not prevent the applicant from obtaining copies of the relevant documents. The judge accepted that those copies could have been provided.
4. The reliance on Stevenson v Riverside Health Authority was misplaced. That case involved expert knowledge needed to establish the relevant facts and a claimant who had taken adequate steps to investigate. Here, the necessary knowledge could be obtained from the file without expert assistance, and the applicant had taken no comparable steps for over two years.
5. The merits were irrelevant to the application. They had been presumed in the applicant’s favour for the preliminary issue, which concerned only limitation. The claim was brought after the six-year period and was dismissed. There was no order for costs.

• Court of Appeal (Civil Division): Permission to appeal was refused. The court upheld the order made on the preliminary limitation issue.
• Chancery Division: Rimer J held that the claim was statute barred under the Limitation Act 1980 and dismissed it.
• Chancery Division, Master Bowman: The defendant’s dismissal application was adjourned for determination of the preliminary limitation issue.