EZEKIEL v LEHRER

A claimant cannot rely on deliberate concealment under section 32(1)(b) of the Limitation Act 1980 where the claimant previously knew the relevant fact. Later forgetting it, or being persuaded that the original recollection was mistaken, does not enable a subsequent act to conceal it or restart the limitation period.

A separate claim that a solicitor failed to disclose earlier negligence arises only in a relatively exceptional case. The claimant must plead facts clearly supporting the alleged secondary duty and the solicitor’s knowledge of the original breach. A bare assertion that the original conduct contradicted the client’s instructions is insufficient.

The appellant brought a professional negligence claim against his former solicitor more than six years after the alleged unauthorised registration of a charge over the appellant’s property. He contended that the solicitor had deliberately concealed relevant facts, so that section 32(1)(b) of the Limitation Act 1980 postponed the limitation period.

Evans-Lombe J granted summary judgment under rule 24.2 of the Civil Procedure Rules 1998, holding that the appellant knew his instructions and learnt of their alleged breach in November 1990. The appellant appealed. The respondent cross-appealed against the order depriving him of part of his costs because his summary judgment application had been made late.

The principal issue was whether a fact once known could later be deliberately concealed after the claimant had forgotten it or had been persuaded that his recollection was wrong.

1. Appeal dismissed unanimously. Ward LJ held that section 32(1)(b) of the Limitation Act 1980 required the court first to identify the facts relevant to the cause of action and then to determine whether the defendant had deliberately concealed any of them. The relevant facts included the appellant’s instructions concerning the charge, the alleged departure from those instructions and the resulting damage.

2. The appellant necessarily knew the instructions when he gave them. The solicitor’s November 1990 letter, fee note and Land Registry entries then informed him that the charge had been registered to secure the old company’s debts. He therefore knew the facts necessary to bring his claim. Applying Sheldon v Outhwaite [1996] 1 AC 102, a fact already known cannot be concealed by a subsequent act. Later doubt, forgetfulness or acceptance of another person’s contrary recollection does not erase the earlier knowledge or create a new limitation starting point. Section 32(1)(b) therefore did not postpone time.

3. Jonathan Parker LJ agreed. A claimant who knew the relevant fact at any point between accrual and the alleged concealment cannot say that the fact was unknown throughout that period. Giving such a claimant a fresh six-year period after rediscovery would produce an unintended and artificial result.

4. Jonathan Parker LJ also rejected the proposed separate claim that the solicitor breached a secondary duty to disclose his original negligence or recommend independent advice. Such liability is relatively exceptional. More is required than a bare allegation that the solicitor knew of the earlier breach when it occurred. The pleading contained no additional facts from which that knowledge or duty could properly be inferred.

5. The judge was entitled to determine the claim summarily notwithstanding the proximity of the trial date. Part 24 of the Civil Procedure Rules 1998 did not deprive the appellant of a fair trial or offend article 6 of the European Convention on Human Rights.

6. Cross-appeal allowed unanimously. The costs of trial preparation arose from the appellant’s pursuit of a claim bound to fail, rather than from the respondent’s delay in seeking summary judgment. The claim was dismissed with costs, including the costs of the appeal and cross-appeal.

1. Court of Appeal (Civil Division): The appellant’s appeal against summary dismissal was dismissed. The respondent’s cross-appeal on costs was allowed, and the order below was varied so that the claim was dismissed with costs.

2. Chancery Division: Evans-Lombe J summarily dismissed the professional negligence claim under rule 24.2 of the Civil Procedure Rules 1998 as statute-barred, but awarded the respondent only part of his costs.