Limitation of Actions Consultation - Law Commission

Australia, which recommended that there was no need for a special rule providing
that, for example, fraudulent concealment should override the ultimate limitation
period, but that the court should be able to take any fraudulent concealment or
fraud by a trustee into account in deciding whether to exercise its discretion to
disapply the limitation period. 227
(c) The meaning of deliberate concealment
12.151 Under the present law, 228
the primary requirement for deliberate concealment is
that the defendant has concealed facts relevant to the plaintiff’s cause of action,
intending the plaintiff not to discover the truth or reckless as to whether the
plaintiff discovers the truth or not. For example, where a builder is aware that the
work he has done on the foundations of a building is poor, and yet goes on to
complete the building, covering the foundations (so that the defect is concealed
from the plaintiff), he would be guilty of deliberate concealment. In the same
situation, if the builder was not aware that the work was poor, he would not
commit deliberate concealment by simply continuing the work, even if this
necessarily hides the earlier, faulty, work from the plaintiff. So where the defendant
knowingly commits a breach of duty in circumstances where it is unlikely to be
discovered for some time, he is guilty of deliberate concealment. 229
We take the
view that the present law is broadly satisfactory, although it should be made clear
that deliberate concealment includes deliberate omissions as well as acts, and that
deliberate concealment may occur contemporaneously with the acts or omissions
giving rise to the cause of action, or subsequent to them. In respect of subsequent
concealment, the effect should be to suspend the running of the long-stop.
12.152 One must then ask, to what facts a deliberate concealment provision would apply;
that is, what are the facts, deliberate concealment of which would postpone the
limitation period? The present law refers to where “any fact relevant to the
plaintiff’s right of action has been deliberately concealed”. 230
This is rather
different from the wording used in the 1939 Act, which reads “the right of action is
concealed by the fraud of [the defendant]”, although it seems unlikely that
Parliament intended any substantial change in the facts to which the provision
refers. 231
So it would seem, for example, that under the present law the running of
the limitation period will not be postponed where the defendant has merely
concealed his or her identity from the plaintiff. 232
Because deliberate concealment
is so closely related to discoverability, in that deliberate concealment involves a
deliberate attempt by the defendant to impede the plaintiff from obtaining the
knowledge that would enable him or her to commence proceedings, we take the
227 Report on Limitations and Notice of Actions, Project No 36 - Part II (1997) paras 13.73 -
13.75.
228 See paras 8.13 - 8.20 above.
229 Limitation Act 1980, s 32(2).
230 Limitation Act 1980, s 32(1)(b).
231 See, eg, Hansard (HL) 25 June 1979, vol 400, col 1219 (Lord Hailsham LC).
232 RB Policies at Lloyds v Butler [1950] 1 KB 76. This case concerned a theft, which is the most
obvious example of a concealment of identity, but another example would be that of a
driver who negligently injured another person in an accident, and then drove away without
revealing his or her name.
305