Limitation of Actions Consultation - Law Commission

supported by the wording of this phrase. The second interpretation was therefore
adopted.
8.19 Lord Lloyd of Berwick, giving the minority opinion, 47
favoured the first
interpretation (which had also been favoured by the Court of Appeal). He noted
that Parliament could not be said to have intended that section 32(1)(b) should
apply to cases of subsequent concealment, and that the wording of the subsection
should not be distorted to read as though the words “shall not begin to run”
meant “shall be treated as not beginning to run”. He expressed concern that the
first interpretation would lead to the plaintiffs being able to rely on an act of
concealment taking place after the limitation period had ended. He also
recognised the possibility that Parliament might have intended to distinguish
between deliberate concealment at the time when the cause of action accrues, and
subsequent concealment, in the same way as it distinguishes disability at the time
the cause of action accrues (which prevents time running) and subsequent
disability (which generally has no effect on the running of time). 48
8.20 The opinions in Sheldon v Outhwaite demonstrate the problems with section
32(1)(b). 49
Although the solution favoured by the majority is preferable to limiting
the protection offered by the subsection to cases where the concealment practised
by the defendant coincided with the accrual of the cause of action, it is not entirely
satisfactory. By accepting that the limitation period should be restarted when the
plaintiff has discovered the concealment, regardless of how much of the limitation
period had expired when the concealment took place, the judgment could be said
to have over-protected the plaintiff. There is no clear justification for giving a
plaintiff, who took no action in the first five years and eleven months of a
limitation period a further six years, from when he discovers the truth, to bring his
action because the defendant concealed a relevant fact during the last month of
the limitation period. Indeed as Lord Lloyd of Berwick pointed out, on this
interpretation it would seem that the clock can be reset even after the normal
limitation period has expired. It is unfortunate that the wording of the statute
prevented the majority from adopting its preferred solution.
47 With which Lord Mustill agreed.
48 See paras 8.2 - 8.5 for a discussion of section 28 on disability. It seems unlikely that
Parliament had this intention:
(i) Section 32(1) contains no equivalent to the phrase “if on the date when any right of
action accrued” in s 28 which prevents a plaintiff relying on disability which did not
exist at that date (see para 8.5);
(ii) In cases where there has been deliberate concealment by the defendant, the plaintiff’s
inability to bring an action against the defendant is the result of the defendant’s
conduct. This is not the case where the plaintiff suffers from a disability. It may be
reasonable not to extend the time during which defendants remain exposed to an action
for damages because of a plaintiff’s subsequent disability which is in no way attributable
to the defendants (though see paras 3.72 above, and 12.126 - 12.128 below). However,
it is hard to see why Parliament should have intended that defendants should benefit
from their culpable conduct when that conduct does not coincide precisely with the
time when the cause of action accrues to the plaintiff.
49 See McGee, “Subsequent Concealment of Material Facts” (1995) 111 LQR 580.
149