RG Securities (No.2) Ltd v (Allianz Global Corporate And Specialty CE & Ors

On a defendant’s application for summary judgment, the court must decide whether the claim has a realistic, rather than fanciful, prospect of success. It must avoid a mini-trial, while analysing evidence where appropriate and considering evidence reasonably expected to become available at trial. Summary determination is especially unsuitable where fuller factual investigation may affect the outcome.

Under section 32(1)(b) of the Limitation Act 1980, deliberate concealment postpones the commencement of limitation until discovery of the concealment. This applies even where the ordinary limitation period would otherwise have expired before the concealment occurred.

The claimant sought damages from the defendants concerning alleged defects in refurbishment works to a residential tower, including combustible cladding, fire-safety defects and the absence of completed Building Regulations approval.

The third defendant applied for summary judgment, contending that the claim was statute barred. The claimant relied on section 32(1)(b) of the Limitation Act 1980, alleging deliberate concealment of the absence of final Building Regulations approval. The third defendant alternatively sought permission concerning a proposed counterclaim and additional claim involving its subsidiary.

1. Summary judgment test. The court adopted the approach summarised in Wetherspoon v Van de Berg & Co [2007] EWHC 1044 (Ch). The claim had to have a realistic prospect of success, and the court had to avoid conducting a mini-trial. It could analyse evidence and take account of evidence reasonably expected to become available at trial.
2. Limitation and concealment. Section 1(5) of the Defective Premises Act 1972 treated the cause of action as accruing on completion. Section 9 of the Limitation Act 1980 imposed the ordinary six-year period. However, section 32(1)(b) applied where a relevant fact had been deliberately concealed by the defendant.
3. Following the ratio of Sheldon v RHM Outhwaite (Underwriting Agencies) Ltd [1996] A.C. 102, time under section 32(1)(b) did not begin to run until discovery, or discoverability with reasonable diligence, of the concealment. The limitation period was therefore reset even if the ordinary period had already expired before the concealment.
4. The claimant had a realistic prospect of establishing deliberate concealment by the third defendant. The evidence concerning Building Regulations approval was incomplete, and the vendor’s solicitors’ responses could support an inference of concealment. The issues were fact-sensitive and further disclosure could affect the result.
5. The application for summary judgment failed. The proposed counterclaim and additional claim were procedurally defective or incomplete. A counterclaim pleaded with a defence did not require permission under CPR Part 20.2(2)(a), but any additional claim involving the subsidiary required compliance with CPR Part 20.7 and Practice Direction 20.