Cave v Robinson Jarvis & Rolf

For the purposes of section 32(2) of the Limitation Act 1980, deliberate commission of a breach of duty requires an intentional act or omission which in fact constitutes a breach. The defendant need not know that the conduct is legally wrongful or that it gives rise to a cause of action.

Where the breach is unlikely to be discovered for some time, limitation is postponed until the claimant discovers, or could with reasonable diligence discover, the concealed fact. The relevant fact may be the inadequacy of a legal instrument to achieve its intended purpose, rather than the instrument’s contents.

A two-judge Court of Appeal decision on a substantive appeal has the same authority as one made by a larger constitution. The appeal court held itself bound by the earlier decision.

The claimant retained the respondent solicitors to secure 100-year mooring rights connected with the sale of land. The solicitors drafted a mooring licence rather than a lease with ancillary easements and failed to register the document.

The claimant used the mooring without difficulty until the purchaser’s receivers denied the existence of the right in February 1994. He issued proceedings in January 1998 alleging negligence and breach of contract.

The High Court held that the claimant could rely on section 32(2) of the Limitation Act 1980. The central issues were whether Brocklesby v Armitage & Guest was binding and, if so, when the concealed fact was discovered or could reasonably have been discovered.

The appeal was dismissed unanimously. The order was made without an order as to costs.

1. Construction of section 32(2). Potter LJ held, applying Brocklesby v Armitage & Guest [2001] 1 All ER 172, that deliberate commission of a breach of duty means intentional commission of the relevant act or omission. It is unnecessary to prove that the defendant knew the conduct amounted to a breach of duty or understood its legal consequences.
2. Identification of the concealed fact. The relevant fact was not merely the contents of the licence. It was that the licence was inadequate to secure the claimant’s intended mooring rights. The omission to include appropriate terms, and the failure to register the document, were breaches unlikely to be discovered for some time. Limitation therefore did not begin before the claimant’s discovery, or reasonable opportunity for discovery, in 1994.
3. Binding precedent. The court followed the principles stated in Limb v Union Jack Removals Ltd [1998] 1 WLR 1354. A two-judge Court of Appeal decision on a substantive appeal has the same authority as a decision of a three- or five-judge court. Under modern procedure, the relevant distinction is between a substantive appeal and an application for permission, rather than between interlocutory and final appeals. Any departure would in any event require the earlier decision to be manifestly wrong, and Brocklesby did not meet that standard.
4. Potter LJ and Sedley LJ left the precise modern scope of the exception discussed in Boys v Chaplin [1968] 2 QB 1 unresolved. Sedley LJ considered that major questions concerning the Court of Appeal’s self-imposed system of precedent should await an appropriate case. Parker LJ separately expressed unease about the reasoning in Brocklesby, including its relationship with observations in Sheldon v Outhwaite [1996] AC 102, but agreed that the court was bound by Brocklesby.
5. Permission to appeal to the House of Lords was refused, particularly because permission had already been refused in Brocklesby and the present dispute might no longer involve a genuine issue.

• Court of Appeal (Civil Division). Dismissed the solicitors’ appeal from the preliminary limitation ruling and refused permission to appeal.
• High Court, Queen’s Bench Division. Mr Justice Newman held that section 32(2) of the Limitation Act 1980 postponed limitation until at least February 1994, so the proceedings issued in January 1998 were in time.