Williams v Fanshaw Porter & Hazelhurst

Under section 32(1)(b) of the Limitation Act 1980, limitation is postponed where a defendant deliberately conceals any fact relevant to the claimant’s right of action. The defendant need not know that the fact is legally relevant, but must know the fact and consciously decide not to disclose it where disclosure is required or ordinarily expected. Motive is immaterial. Avoiding embarrassment may therefore be a motive for deliberate concealment. A solicitor’s failure to tell a client about a consent order seriously prejudicing the client’s claim can postpone time, even if the solicitor believes the position can be repaired. Time begins when the concealment is discovered, or could with reasonable diligence have been discovered.

Ms Elaine Williams brought a professional negligence claim against Fanshaw Porter & Hazelhurst, a firm of solicitors. The alleged negligence arose when the firm consented to an order dismissing her claim against a doctor, thereby losing the possibility of pursuing that claim. The cause of action against the solicitors accrued on 25 August 1994, but the action was not commenced until 14 December 2000.

On a preliminary limitation issue, Manchester County Court, before Recorder Brunnen, held on 3 March 2003 that neither section 32(1)(b) nor section 32(2) of the Limitation Act 1980 applied. Ms Williams appealed, challenging only the conclusion under section 32(1)(b). The central issue was whether the solicitors had deliberately concealed facts relevant to her claim.

1. Appeal allowed. The Court of Appeal unanimously declared that Ms Williams’s claim was not time-barred under the Limitation Act 1980.
2. Construction of section 32(1)(b). Park J held that the provision concerns concealment of any fact relevant to the claimant’s right of action, rather than concealment of the right of action itself. The defendant need not know that the fact is relevant to the claim. It is sufficient that the defendant knew the fact and deliberately concealed it. Deliberate concealment requires a conscious decision not to inform the claimant, where the fact was subject to a duty of disclosure or would ordinarily have been disclosed in the relationship.
3. Application to the solicitors. The consent order and the failed attempt to rejoin the doctor were relevant facts. The solicitor was under a professional duty to keep his client informed. After the failed application in December 1994, he deliberately withheld the information. His motive was embarrassment, not necessarily a wish to avoid a negligence claim, but motive did not alter the character of the concealment. Nor did his honest belief that the position could be repaired negate the earlier mistake or concealment.
4. Park J distinguished the House of Lords decision in Cave v Robinson Jarvis & Rolf [2002] UKHL 18; [2003] 1 AC 384, because that case concerned section 32(2), whereas section 32(1)(b) independently applied here. Lord Millett’s shorter description of section 32(1)(b) was treated as a summary of the usual case, not as a substitute for the statutory wording. Mance LJ agreed, holding that the statutory ingredients were satisfied even on the narrower interpretation. Brooke LJ agreed with Park J, while preserving the Recorder’s factual finding about the solicitor’s state of mind.
5. Under the final part of section 32(1), time began when the claimant learned of the concealment. On either possible date of disclosure, the action was commenced within six years.

1. Court of Appeal (Civil Division): In [2004] EWCA Civ 157, the appeal was allowed and the claim was declared not time-barred.
2. Manchester County Court: Recorder Brunnen determined the limitation issue as a preliminary issue on 3 March 2003 and held that the claim was statute-barred.