Liberty Partnership Ltd v Tancred & Anor

A modern deed complying with section 1 of the Law of Property (Miscellaneous Provisions) Act 1989 is a specialty for section 8 of the Limitation Act 1980, even without a seal. The relevant question is the parties’ intention to execute a document with the solemnity of a deed.

A contractual exception for wilful concealment applies only to claims that arise or are delayed as a result of that concealment. It does not automatically extend limitation for other claims. Claims based on deliberately fabricated compliance records and deliberately withheld regulatory communications fell within the exception. Claims based only on unrecorded complaints or later complaints did not.

The claimant acquired a regulated independent financial advice business from the defendants under a share purchase agreement. The agreement imposed an 18-month contractual limitation period for warranty claims, subject to an exception for claims arising or delayed as a result of dishonesty, fraud or wilful concealment.

The claimant alleged that the defendants had concealed regulatory non-compliance, failures to obtain required pension-transfer approvals, failures to comply with an external compliance requirement, failures to send a regulator-approved customer letter, and customer complaints. The court tried those matters as a preliminary issue and also considered whether the agreement was a specialty, so that the statutory limitation period was 12 years rather than six.

1. Specialty and amendments. The share purchase agreement was executed as a modern deed by the individual defendants without a seal. Applying the statutory development of deeds and the authorities concerning intention and formality, the court held that a deed complying with section 1 of the Law of Property (Miscellaneous Provisions) Act 1989 is a specialty within section 8(1) of the Limitation Act 1980. The 12-year period therefore applied, and the claimant was permitted to amend its case.
2. Wilful concealment. The contractual exception required a causal connection between the concealment and the particular claim. The court found that the defendants deliberately created an audit trail suggesting that Maureen McKenna had approved pension-transfer transactions when she had not. Claims concerning the absence of those approvals could proceed.
3. The defendants also knowingly proceeded with 14 income-drawdown transactions without the required approval from 360 Services, despite written requests for further information and remedial action. They deliberately concealed that non-compliance. Those claims could proceed.
4. The defendants created copies of a regulator-mandated customer letter and placed them on files to suggest that the letters had been sent, when they had not. This was wilful concealment, and the associated claims were outside the primary contractual limitation period.
5. The court rejected concealment allegations concerning the earlier customer complaints and later complaints arising from pre-sale advice, except insofar as they fell within the McKenna, 360 Services or customer-mailing findings. Those claims remained barred by the 18-month contractual period.
6. The court declined to decide abstractly whether other similar claims could be brought. Any additional claims would require pleading and permission to amend.

First-instance decision in the High Court (Commercial Court). The proceedings had previously been transferred from the County Court, and the issue of alleged wilful concealment was directed to be tried as a preliminary issue.