Limitation of Actions Consultation - Law Commission

view that deliberate concealment should apply to any of the facts which are
relevant to the discoverability test. 233
12.153 The long-stop would therefore be disapplied if the defendant had deliberately
concealed the primary facts giving rise to the cause of action. But it would also be
disapplied if the defendant deliberately concealed his or her identity. This would
be relevant in nearly all cases of theft and many cases of fraud, where there is some
degree of, at least implicit, concealment of identity. 234
Further, the long-stop would
be disapplied where there was deliberate concealment of the significance of the
damage caused to the defendant. Where, for example, a builder negligently caused
serious damage to a house but disguised it (for example by papering over a
cracked wall) so that some trivial damage was apparent, but the true nature of the
damage was hidden, the long-stop would not apply. 235
12.154 Consultees are asked if they agree with our provisional views that:-
(a) the long-stop limitation period should be inapplicable where the
defendant has deliberately concealed from the plaintiff the facts relevant
to the discoverability test under the core regime, that is
(i) the facts constituting the cause of action;
(ii) the identity of the defendant; and
(iii) that the cause of action is significant 236
(whether by act or omission and whether the concealment took place
contemporaneously with, or subsequent to, the act or omission giving rise
to the cause of action). But, in the absence of deliberate concealment, the
long-stop limitation period should apply where the cause of action rests on
the mistake of the plaintiff or the fraud of the defendant.
(b) Concealment subsequent to the act or omission giving rise to the
cause of action should suspend the running of the long-stop.
(c) As is the case under the present law, for deliberate concealment the
defendant must conceal the relevant facts intending the plaintiff not to
discover the truth or reckless as to whether the plaintiff discovers the truth
or not.
233 See paras 12.29 - 12.44 above.
234 Examples of theft not involving a concealment of identity might include a robbery by
someone personally known to the plaintiff without any attempt at disguise or (more farfetched)
a burglary where the burglar left a card giving his (correct) name and address.
Deliberate concealment of the location of converted goods would also be relevant: see para
13.49 below.
235 But this would only be the case if the apparent (as opposed to the real) damage fell short of
the “significance” test (see para 12.44 above). If the damage visible despite the concealment
was significant, then the plaintiff would have acquired knowledge that the damage was
significant.
236 And in the case of actions to recover converted goods, the location of the goods: see para
13.49 below.
306