Roberts v The Royal Bank of Scotland PLC

For section 32(1)(b) of the Limitation Act 1980, a concealed fact must be essential to pleading a prima facie cause of action. Evidence which strengthens a claim, answers a possible defence, or assists assessment of its merits does not postpone limitation. A claimant may plead breach by inference from facts already known.

Deliberate concealment requires an intended withholding of a relevant fact. A company’s relevant knowledge remains attributable to it after administration or liquidation. Claims which are plainly time-barred and have no realistic prospect of establishing postponement may be struck out or dismissed summarily.

The claimant, an assignee of Vision TV Ltd’s rights, sued the defendant bank concerning payments made from Vision TV’s account to its majority shareholder. He alleged breach of the Quincecare duty, breach of mandate, and related duties concerning the addition of an accounts clerk as an authorised signatory.

The payments occurred between October 2006 and May 2007. The claim form was issued on 26 September 2019. The bank applied for summary judgment and/or strike out, contending that the claims were time-barred and that section 32 of the Limitation Act 1980 could not assist the claimant.

1. Application granted. The claims were struck out under Civil Procedure Rules 1998, rule 3.4, and judgment was entered for the bank.
2. The applicable summary judgment and strike-out test, stated in The LCD Appeals [2018] EWCA Civ 220 and Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch), was whether the claims had a realistic, rather than fanciful, prospect of success. The application was suitable for determining the limitation issues because the necessary evidence was available and the parties had been heard in writing.
3. Following Arcadia Group Brands Limited v Visa Inc, the facts protected by section 32(1)(b) are those which found the cause of action and are essential to pleading a prima facie case. The provision does not protect evidence, reply points, facts which improve the merits, or facts relevant only to defeating a defence.
4. For the First Claim, the claimant already knew the payments, their amounts and timing, their recipients, and that Ms Fox had co-signed them. Those facts were sufficient to plead that the bank had reasonable grounds to suspect misappropriation and had breached the Quincecare duty described in Barclays Bank plc v Quincecare Ltd [1992] 4 All ER 363 and The Federal Republic of Nigeria v JP Morgan Chase Bank NA [2019] EWHC 347 (Comm).
5. For the Second Claim, the essential facts were the banking relationship, payment of the cheques, and Ms Fox’s lack of authority. The mandate, additional signatory form, internal bank procedures and related correspondence were evidence or material relevant to a defence, not essential facts for pleading the claim.
6. Deliberate concealment requires an intention to conceal, as explained in Cave v Robinson Jarvis & Rolf (A Firm) [2003] 1 AC 384. The claimant’s allegations concerning delayed responses and missing records did not connect any alleged concealment with facts necessary to plead either claim and, in any event, were insufficiently pleaded.
7. A company’s knowledge remains relevant for limitation purposes after administration or liquidation. The claimant was fixed with Vision TV’s and its liquidators’ knowledge, consistently with Granville Technology Group Limited (in liquidation) v Infineon Technologies AG [2020] EWHC 415 (Comm).
8. The unpleaded third claim did not alter the result. The unpleaded dishonest assistance claim was not before the court, but the judge observed that its proposed pleading faced substantial difficulties, including proof of dishonest assistance and attribution to the bank.