Paul Sculfor & Ors v MGN Limited

For deliberate concealment under Limitation Act 1980, time starts when the claimant knew, or could with reasonable diligence have discovered, sufficient facts to recognise a real possibility of a worthwhile claim. The claimant need not possess evidence capable of proving the claim, obtain positive legal advice, or find a solicitor willing to act.

Where a claimant reasonably needs factual information or assistance to discover the concealment, a reasonable period may be allowed for obtaining it. A claimant misled about the cause of the loss may reasonably be less attentive to an alternative explanation. The preliminary issue was decided for one claimant, whose claim was not statute-barred, and for MGN in the other four claims.

Five claimants in the Mirror Newspapers Hacking Litigation brought claims against MGN for alleged voicemail interception and other unlawful information gathering. Each accepted that the claim was issued outside the primary six-year limitation period and relied on deliberate concealment under section 32 of the Limitation Act 1980.

The central issues were whether each claimant knew, or could with reasonable diligence have discovered, facts sufficient to appreciate a worthwhile claim by the relevant date; whether any claimant had been misled by MGN; and whether hypothetical legal advice that the claim was weak or speculative prevented time from running.

1. Applicable threshold. The court applied the approach in Test Claimants in the FII Group Litigation v Revenue and Customs Commissioners [2020] UKSC 47 and Gemalto Holding BV v Infineon Technologies AG [2022] EWCA Civ 782. A worthwhile claim requires sufficient facts to provide a credible basis for a claim capable of resisting strike-out, not evidence proving the claim, a strong claim, or a claim likely to succeed.
2. Positive legal advice is not a prerequisite to knowledge under section 32. The cases concerning mistake of law are materially different because legal advice may be needed to discover the relevant state of the law. In deliberate-concealment cases, the focus is discovery of concealed facts.
3. Hypothetical advice about the strength, viability or funding prospects of a claim is irrelevant. A solicitor’s actual advice may be evidence of the claimant’s knowledge, but it is not determinative. The court rejected the proposition that limitation is postponed until a competent solicitor would advise that the claim was worth pursuing.
4. Where a claimant is put on notice to inquire but reasonably needs factual advice or information to discover the concealment, time starts when that information could with reasonable diligence have been obtained. A realistic period may be allowed for that process. No additional period is needed where the claimant already knows the relevant facts.
5. Mr Sculfor was materially misled by MGN’s apparent attribution of information to family or friends. In the circumstances, he was not required to maintain particular attentiveness to the developing phone-hacking story, and his claim was not statute-barred. Ms Cantor and Mr Cox had sufficient knowledge, or could readily have acquired it, through their close connections with known victims. Ms Sacre-Dallerup was put on notice by information received from the Metropolitan Police Service. Mr Harkin knew enough by September 2014 to have a worthwhile inferential claim; the lack of conclusive evidence and cautious legal advice did not postpone time.
6. The preliminary issue was decided in favour of Mr Sculfor and in favour of MGN in the claims of Ms Cantor, Ms Sacre-Dallerup, Mr Cox and Mr Harkin.