Limitation of Actions Consultation - Law Commission

12.148 This leaves two issues for consideration. Should mistake, fraud or deliberate
concealment override a long-stop, and if so, what should count as “deliberate
concealment” for these purposes?
(b) Should mistake, fraud or deliberate concealment override a long-stop?
12.149 We have seen 217
that, under the present law, the fifteen-year long-stop under
section 14B of the Limitation Act 1980 is overridden by deliberate concealment
(although not by mistake or fraud), 218
but that the ten-year long-stop under section
11A(3) is not overridden by deliberate concealment (or by mistake or fraud). 219
In
our view the arguments in favour of a long-stop are only overridden where the
reason that the plaintiff does not discover the relevant facts is because of the
defendant’s deliberate concealment. Where, in contrast, the delay in the plaintiff’s
discovery of the relevant facts is not because of the defendant’s deliberate
concealment, we are of the view that the long-stop should apply. The fact that the
action was for relief from the consequences of a mistake would not therefore
override the long-stop. An action based on fraud would also not, of itself, override
the long-stop (though the fraud may frequently - perhaps usually - include an
element of deliberate concealment, as we define it below, which would have this
effect).
12.150 The view that deliberate concealment should override the long-stop is supported
by the conclusions of other law reform bodies. Both the Alberta Law Reform
Institute 220
and the Ontario Limitations Act Consultation Group 221
recommended
that the ultimate limitation period should be suspended in cases where the
defendant has fraudulently concealed the cause of action from the plaintiff, 222
while
the same protection was not to be given to the plaintiff where the plaintiff’s lack of
knowledge is not due to concealment by the defendant. The New Zealand Law
Commission 223
and the Law Reform Commission of British Columbia, 224
in
contrast, recommended giving additional protection to the plaintiff both where the
defendant has deliberately concealed the cause of action from the plaintiff, and
where the defendant has been guilty of fraud 225
(in the case of British Columbia by
subjecting such claims to a long-stop period of 30 years in place of the normal 10
year long-stop period: in the case of New Zealand by indefinite extension). 226
A
different approach was followed by the Law Reform Commission of Western
217 See paras 8.25 - 8.26 above.
218 Limitation Act 1980, s 32(5).
219 Ibid, s 32(4A).
220 Limitations, Report No 55 (1989) p 40. See Limitations Act 1996 c L-15.1 s 4(1).
221 Recommendations for a New Limitations Act, Report of the Limitations Act Consultation Group
(1991), p 37.
222 Or in the case of the Ontario Limitations Act Consultations Group “wilfully conceals” see s
15(7)(b) of the Ontario Limitations (General) Bill 1992.
223 Report No 6, Limitation Defences in Civil Proceedings, NZLC-R6 (1988) para 303, 306.
224 Report on the Ultimate Limitation Period: Limitation Act, Section 8 (1990) Chap IV, pp 43 -
44.
225 In the case of New Zealand, only fraud by a trustee counts.
226 See also the Prescription and Limitation (Scotland) Act 1973, s 6(4) and para 10.16 above.
304