DLA Piper UK LLP v Henshaws Farming LLP & Ors

Limitation issues involving deliberate concealment and reasonable diligence are ordinarily fact-sensitive and unsuitable for summary determination where disclosure or oral evidence may affect the result. Registration of information on a public register does not necessarily prevent deliberate concealment, particularly where the claimant was unlikely to discover it there. For section 32 purposes, the relevant claimant is the person in whom the cause of action is vested from time to time.

An assignee has a genuine commercial interest where recovery may reduce its own liability. Recovery of assessed costs from an opposing party is not necessarily a division of the spoils. The validity of an assignment to a former solicitor, or of an assignment made before proceedings commence, may require trial findings.

DLA Piper brought assigned claims arising from the alleged concealment and later transfer of land subject to overage obligations. The defendants applied to strike out the claim and alternatively for summary judgment, relying on limitation and alleged maintenance, champerty and solicitor-client restrictions affecting the assignment.

The court considered whether the trustees could rely on section 32 of the Limitation Act 1980, despite the relevant transfer having been registered, and whether DLA Piper had a real prospect of establishing that the assignment was valid and enforceable.

1. Strike out. A limitation defence cannot found an application under CPR r 3.4(2)(a), because limitation is a defence and the particulars of claim do not thereby disclose no reasonable grounds. That part of the applications was dismissed.
2. Summary judgment and section 32. The claimant had a real prospect of proving deliberate concealment. Registration of the 2015 transfer did not itself amount to informing the trustees and did not negate concealment or the intention to conceal. Public availability may be relevant to reasonable diligence, but whether the trustees were on notice, what investigation was reasonable, and what it would have revealed required factual determination.
3. The relevant claimant under section 32(1) is the person in whom the cause of action is vested from time to time. The trustees’ position before assignment was therefore relevant, and the defendants had not pleaded that DLA could itself have discovered the concealment. The non-registration of the restriction was background rather than a fact relevant to the causes of action.
4. Assignment. DLA had a real prospect of showing a genuine commercial interest because recovery could reduce its potential liability to the trustees. The assignment did not necessarily involve a division of the spoils: damages were preserved for the trustees, while DLA’s costs would be subject to a costs order and assessment. The maintenance and champerty objections therefore did not justify summary judgment.
5. The application of the solicitor rule was not suitable for summary determination. There were real issues as to whether the retainer had ended before the assignment and whether the rule applied to an unissued cause of action. Those issues, including the relevant public-policy considerations, should be determined with full factual findings.
6. The defendants’ applications for strike out and summary judgment were dismissed.

First-instance decision. No prior appellate decision is stated in the judgment.