Cave v. Robinson Jarvis & Rolf (A Firm)

Under section 32(2) of the Limitation Act 1980, deliberately performing an act which later proves negligent is not, without more, the deliberate commission of a breach of duty. The defendant must know that the conduct constitutes a breach, or intend to commit the breach.

Section 32(1)(b) requires an intention to conceal a fact relevant to the claimant’s right of action. Section 32(2) provides an alternative route: deliberate wrongdoing committed in circumstances where it is unlikely to be discovered is treated as deliberate concealment. Neither provision applies merely because an intentional act was performed without awareness of the resulting negligence.

Unconscionable conduct is not an additional statutory requirement.

Cave v. Robinson Jarvis & Rolf (A Firm) concerned a preliminary limitation issue in a solicitors’ negligence claim. The claimant alleged that his solicitors had negligently drafted and failed to register an instrument intended to confer long-term mooring rights. His cause of action accrued in March 1989, but proceedings were not commenced until January 1998.

Newman J, following Brocklesby v Armitage & Guest (Note), held that section 32(2) of the Limitation Act 1980 applied because the drafting was intentional, although the solicitors were not alleged to know that it breached their duty. The Court of Appeal, reported at [2002] 1 WLR 581, dismissed the solicitors’ appeal because it considered itself bound by that authority.

The central issue was whether an intentional act which unknowingly constitutes a breach of duty is a “deliberate commission of a breach of duty” under section 32(2).

The appeal was allowed unanimously. Lord Scott of Foscote delivered the leading speech. Lord Slynn agreed with his reasons, while Lord Mackay and Lord Hobhouse agreed with both Lord Scott and Lord Millett. Lord Millett gave a complementary speech and also agreed with Lord Scott.

1. Per Lord Scott and Lord Millett, the clear language of section 32(2) of the Limitation Act 1980 distinguishes a deliberate breach of duty from an inadvertent, accidental or unintended breach. A defendant must know that he is committing the breach, or intend to commit it. Knowledge and intention concerning the underlying act are insufficient where the defendant remains unaware of the want of care which constitutes the breach.

2. Per Lord Scott, section 32(2) is not otiose. Under section 32(1)(b), the claimant must prove that a relevant fact was concealed by a positive act or withholding of information, with the intention of concealing it. Section 32(2) supplies an alternative route. If the defendant deliberately commits a breach and the circumstances make discovery unlikely for some time, the facts involved are deemed deliberately concealed.

3. Per Lord Scott, adopting the construction approach in Sheldon v R H M Outhwaite (Underwriting Agencies) Ltd [1996] AC 102, clear statutory language must be applied without using legislative history to alter its meaning. Lord Millett considered that the earlier legislation and authorities could nevertheless help identify the mischief and explain the drafting technique.

4. The construction adopted in Brocklesby v Armitage & Guest (Note) [2002] 1 WLR 598 was wrong. Its equation of an intentional act with a deliberate breach would deprive a professional defendant of an effective limitation defence even where the alleged negligence was wholly unsuspected. Lord Scott nevertheless considered that Brocklesby had been correctly decided on its independent pleading ground. By contrast, Liverpool Roman Catholic Archdiocese Trustees Inc v Goldberg [2001] 1 All ER 182, which depended on the erroneous construction, was wrongly decided.

5. Per Lord Scott, unconscionability is not a separate statutory criterion. The requirements of deliberate concealment and deliberate breach need no additional embellishment.

6. The claimant’s pleaded reliance on section 32(2) therefore failed. Under a conditional compromise, however, he remained entitled to a reduced agreed recovery on his separate section 32(1)(b) case.

1. House of Lords: In Cave v. Robinson Jarvis & Rolf (A Firm) [2002] UKHL 18, the House unanimously allowed the solicitors’ appeal and rejected the lower courts’ construction of section 32(2) of the Limitation Act 1980. A conditional compromise preserved a reduced agreed recovery for the claimant.
2. Court of Appeal: The court, reported at [2002] 1 WLR 581, dismissed the solicitors’ appeal. Although expressing reservations, it considered itself bound by Brocklesby v Armitage & Guest (Note).
3. High Court: Newman J followed Brocklesby v Armitage & Guest (Note) and held that section 32(2) postponed limitation. He also held that the claimant could not rely on section 14A; that ruling was not appealed.