Denekamp v Denekamp

Limitation for a negligence claim is not postponed by ignorance of English law or ignorance that known facts may amount to negligence. Under the Limitation Act 1980, relevant knowledge is knowledge of facts, including facts concerning damage, causation and the defendant’s identity. Whether conduct was negligent is a legal conclusion. Deliberate-concealment provisions likewise concern concealed facts, not concealed legal conclusions. A claimant cannot recover personally for loss suffered by an estate or company where no personal duty or loss is shown. An appellate court will not interfere with a discretionary civil restraint order unless it was plainly wrong and outside the reasonable range. Permission to appeal and related contempt applications were dismissed.

Mr Denekamp brought overlapping claims against his mother, brother and the family solicitor arising from a 1989 deed of variation made after his father’s death. He sought annulment of the deed and damages, alleging negligence, deceit, fraud and related wrongdoing.

The High Court struck out the claims on 30 September 2004. On 23 November 2004 it made an extended civil restraint order. On 7 December 2004 Hart J dismissed an application alleging contempt by the defendants’ legal representatives and ordered indemnity costs. Mr Denekamp sought permission to appeal all three orders. The central issues concerned limitation, deliberate concealment, personal standing to recover estate or company losses, appellate review of discretion and the procedure for pursuing contempt allegations.

1. Disposition. The applications for permission to appeal were dismissed. The strike-out order, extended civil restraint order and orders concerning the contempt application and indemnity costs were left undisturbed.
2. Limitation. The relevant knowledge under section 14A of the Limitation Act 1980 is knowledge of facts, not knowledge of English law. It includes the material facts about the damage, facts relevant to causation and the defendant’s identity. The claimant knew that advances had been made to his siblings and knew the relevant solicitor’s identity. His later discovery of the hotchpot rules, and his later appreciation that the facts might support a negligence claim, could not postpone the commencement of time. The court applied the reasoning in HF Pension Trustees Ltd v Ellison & Others [1999] Lloyds L.R. (P.N.) 489, Fennon v Anthony Hodari & Co [2001] Lloyds Rep PN 183 and Haward v Fawcetts [2004] PNLR 34. The claim was therefore statute-barred.
3. Deliberate concealment. Section 32 of the Limitation Act 1980 applies only where a fact relevant to the cause of action has been deliberately concealed. The advances were known and had not been concealed. Alleged concealment of negligence would concern a legal conclusion, not a relevant fact. The court applied Cave v Robinson Jarvis and Rolf [2003] 1 AC 384. Further, any alleged concealment beginning around 1997 occurred after the claim had already become statute-barred.
4. Remaining claims. Claims concerning tax, estate payments and estate documents belonged, if at all, to the estate. Claims concerning company affairs belonged to the company or estate. No personal duty or personal loss was pleaded. The claims were hopeless and were embarrassing, frivolous and vexatious. The claimant had been given an opportunity to amend but abandoned the proposed amended pleading, so no further indulgence was warranted.
5. Civil restraint order. The order involved an exercise of discretion. Permission to appeal required the claimant to show that it was plainly wrong and outside the generous ambit within which reasonable disagreement was possible. The order was plainly within that ambit, given the persistent and fruitless litigation, threats and harassment.
6. Contempt proceedings. The contempt application had no arguable merit. The claimant lacked permission to bring it and did not attend to pursue it. The judge was entitled to strike it out on that basis. The proper course would have been an application to discharge an order made in his absence; an appeal to the Court of Appeal was procedurally inappropriate.

1. Court of Appeal (Civil Division) — On 8 December 2005, Ward LJ dismissed the applications for permission to appeal against the High Court orders.
2. High Court, Chancery Division — Peter Leaver QC, sitting as a Deputy High Court Judge, struck out the proceedings on 30 September 2004 and made an extended civil restraint order on 23 November 2004. Hart J dismissed the contempt application on 7 December 2004 and ordered indemnity costs.