Dixon v Santander Asset Finance Plc & Anor

For limitation purposes, Limitation Act 1980, section 32(1)(b) postpones time only where the concealed fact is essential to complete the claimant’s cause of action. Evidence which merely strengthens an already pleadable claim does not qualify. The relevant question is whether the claimant knew enough to plead a prima facie case, not whether later material would improve the prospects of success. The reasonable-diligence question concerns when the relevant fact could have been discovered, rather than when supporting evidence was actually obtained. Where the claim is plainly time-barred and there is no real prospect of establishing section 32 concealment, the court may determine the point summarily and strike out the claim.

The claimant alleged that Santander had breached a contractual moratorium and had negligently supplied Handelsbanken with an altered vehicle spreadsheet, causing the company’s administration. He alleged that Handelsbanken had breached implied contractual restrictions and representations by demanding repayment and appointing an administrator prematurely.

The primary limitation periods expired in September 2014. Proceedings issued in 2019 relied on section 32(1)(b) of the Limitation Act 1980, alleging concealment of the moratorium letter, the altered spreadsheet and the timing of an accountant’s report. Santander and Handelsbanken sought strike out and summary judgment. The claimant applied to re-amend his particulars. The central issues were whether the alleged matters were concealed facts relevant to the right of action and whether they were discovered, or reasonably discoverable, within six years before issue.

1. Applications and applicable test. The Santander and Handelsbanken applications succeeded under CPR 3.4 and CPR 24. The rules applied a common test in this case. Following the approach in EasyAir Ltd v Opal Telecom Ltd, the court could decide a short legal point where it had the necessary evidence and argument, and should do so where the claim had no real prospect of success.
2. Section 32(1)(b). The statement-of-claim test was narrow. A concealed fact had to be one without which the cause of action was incomplete, or an essential fact required to plead a prima facie case. Facts which merely improved the prospects of success, supplied evidence, strengthened an allegation or assisted in defeating a defence were outside the provision. The approach in Arcadia Group Brands v Visa Inc, approved on appeal, and applied in Kimathi v FCO, Jalla v Royal Dutch Shell and Roberts v RBS, supported that conclusion.
3. The moratorium letter was evidence supporting a breach claim which Mr Dixon had consistently asserted and could plead. The altered spreadsheet likewise supported an already known negligent-misstatement case. The alleged fact concerning the accountant’s report was not necessary to plead the claim against Handelsbanken.
4. Discovery and diligence. Even if the matters were relevant concealed facts, the evidence showed that they had been discovered, or were reasonably discoverable, before 1 October 2013. The Court of Appeal’s reasonable-diligence assessment under Ladd v Marshall concerned admission of fresh evidence and was materially different from section 32.
5. The waiver argument had no realistic prospect. No clear, unequivocal, unambiguous and unconditional representation not to rely on limitation had been made. The claims were time-barred and were struck out. The amendment application and Handelsbanken’s merits application were therefore otiose. The issuing of identical fresh proceedings after the earlier proceedings had been left dormant was also considered abusive in principle.