CH-2025-000032 - [2025] EWHC 2988 (Ch)

Limitation

As regards limitation, it is now accepted by Mr Dewji that the 6 year limitation periods apply to all of the pleaded causes of action (see Re-Amended Particulars of Claim paragraph 40).

As I understand it, the “long stop” date of 15 years under s14B Limitation Act 1980 is not relied upon by the Claimant. It does not feature in Mr Karim’s skeleton argument save that he submits that the long stop in s14B does not apply where s32 applies or that it does not override s32 (as to which see s32(5) Limitation Act 1980). In any event, paragraph 41 of the Re-amended Particulars of Claim refers to “non-acceptance” by the Claimant that the 15 year limitation period applies in respect of claims in negligent/negligent misrepresentation but apparently on the basis that “travel loading” was first applied in or about August 2021, with retrospective effect. I will return to this point but it suffices to say that if there is a cause of action from 2021 then there is no need to resort to s14B as the proceedings were commenced within 6 years of 2021. I should also indicate that, as I go on to explain, on the evidence it is clear that travel loading (rather than medical loading) was applied from inception of the policy.

Section 32(1)-(3) of the Limitation Act 1980 provide as follows:

“(1)…where in the case of any action for which a period of limitation is prescribed by this Act, either—

(a)

the action is based upon the fraud of the defendant; or

(b)

any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant; or

(c)

the action is for relief from the consequences of a mistake;

the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.

(2)

References in this subsection to the defendant include references to the defendant’s agent and to any person through whom the defendant claims and his agent.

(3)

For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.”

As regards “deliberate concealment” under s32(1)(b) the leading authority is Canada Square Operations v Potter [2023] UKSC 41. That case was dealing with the meaning of “deliberately concealed” and “deliberate commission of a breach of duty” but Lord Reid (with whom the other Justices agreed) touched on the section generally.

As regards a “fact relevant” to the cause of action, Lord Reid said at paragraph [96]:

“[96] What section 32(1)(b) requires is that the defendant has “deliberately concealed” “a fact relevant to the plaintiff’s right of action”. The words “the plaintiff’s right of action” must refer to the right of action asserted by the plaintiff in the proceedings before the court. That follows from the terms of section 32(1), so far as material: “…where in the case of any action for which a period of limitation is prescribed by this Act… any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant …” The right of action asserted by the plaintiff may or may not be well-founded: that is a matter which will only need to be determined if the plea of limitation is rejected. As to the words “a fact relevant to the plaintiff’s right of action”, that phrase has been interpreted as referring to a fact without which the cause of action is incomplete: see, for example, Arcadia Group Brands Ltd v Visa Inc [2015] EWCA Civ 883; [2015] Bus LR 1362. That interpretation is not in issue in this appeal, but it makes sense: if the claimant can plead a claim without needing to know the fact in question, there would appear to be no good reason why the limitation period should not run.”

As regards “concealment”, Lord Reid said:

“[98] In relation to the meaning of “concealed”, it seems that in Williams the court found a duty of disclosure to be inherent in the meaning of the word “concealment”. In the present case, Rose LJ expressly stated that “inherent in the concept of ‘concealing’ something is the existence of some obligation to disclose it” (para 75). I respectfully disagree. As was explained at para 67 above, the word “conceal” means to keep something secret, either by taking active steps to hide it, or by failing to disclose it. A person who hides something can properly be described as concealing it, whether there is an obligation to disclose it or not. For example, an elderly lady who was afraid of burglars might conceal her pearls before going to bed, without any implication that she was obliged to leave them lying in plain sight. Some people use cosmetics (“concealer”) to conceal blemishes in their skin, without any implication that they are under an obligation to reveal the imperfections.

[99] The position seems to me to be the same, as a matter of ordinary English, where concealment takes the form of the withholding of information with the intention of keeping it secret. For example, Samuel Pepys concealed the contents of his diary by writing it in code; but that does not imply that he was under an obligation to reveal what he had written. Someone who decides not to tell anyone that he has been diagnosed with cancer can properly be described as concealing his illness, without any implication that he is under an obligation to share the information. It is to be noted that in all the examples I have given, as in most if not all cases where “conceal” is used in the active mood, concealment involves intentional hiding or withholding of information. This underlines the importance of the explicit emphasis placed by Parliament on the requirement that the relevant fact must have been “deliberately concealed”.

[100] Of course, if the defendant is subject to a duty of disclosure to the claimant, it is possible that that may be a relevant circumstance bearing upon whether it can be concluded that there has been deliberate concealment. The considerations to which Park J referred in Williams, para 14 – that the relevant fact was one which it was the defendant’s duty to disclose, or was one which he would ordinarily have disclosed in the normal course of his relationship with the claimant - may therefore have an evidential significance in determining whether there was deliberate concealment. But it has to be emphasised that this is not to say that the question of deliberate concealment can either be reduced to, or is dependent upon, a breach of duty.”

As regards the concept of “deliberate” concealment, Lord Reid said:

“[108] For the reasons developed below in the discussion of the word “deliberate” in section 32(2), I would in addition reject the contention that “deliberately”, in this context, can mean “recklessly”. As Lord Scott explained in Cave at para 60, deliberate concealment for section 32(1)(b) purposes may be brought about by an act or an omission, but in either case “the result of the act or omission, i.e. the concealment [sc from the claimant], must be an intended result”. Accordingly, as Park J stated in Williams at para 14, the defendant must have considered whether to inform the claimant of the relevant fact and decided not to. So construed, section 32(1)(b) strikes a balance between the interests of the claimant and the defendant, as Parliament intended. If the defendant has concealed a fact from the claimant, and has done so deliberately, that is to say knowingly, then he has the means to start the limitation period running by disclosing the fact. If he does not do so, but chooses to keep the claimant in ignorance of a fact which she requires to know in order to plead her claim, then it is just that the defendant should be deprived of a limitation defence. As Lord Millett observed in Cave, para 8, if the defendant is not sued earlier, he has only himself to blame.”

Accordingly, as regards s32(1)(b):

“[109]…

What is required is (1) a fact relevant to the claimant’s right of action, (2) the concealment of that fact from her by the defendant, either by a positive act of concealment or by a withholding of the relevant information, and (3) an intention on the part of the defendant to conceal the fact or facts in question.”

As regards “mistake” under s32(1)(c) Limitation Act 1980, the leading authority is Test Claimants in the Franked Investment Income Group Litigation v Revenue and Customs Commissioners [2012] UKSC 19 (the “FII Group Litigation”). The judgments in that case affirmed the decision in Phillips-Higgins v Harper that s32(1)(c) applies only where mistake is an essential element of the cause of action.

It suffices to set out 5 paragraphs from the judgments in question.

Paragraphs [48] and [62] of the judgment of Lord Walker in the FII Group Litigation case are as follows:

“[48] For present purposes the crucial passage [in Phillips-Higgins v Harper [1954] 1 QB 411] is earlier on p 418. It is part of the passage quoted by the Court of Appeal, but it bears repetition:

“What, then, is the meaning of provision (c)? The right of action is

for relief from the consequences of a mistake. It seems to me that this wording is carefully chosen to indicate a class of actions where a mistake has been made which has had certain consequences and the plaintiff seeks to be relieved from those consequences. Familiar examples are, first, money paid in consequence of a mistake: in such a case the mistake is made, in consequence of the mistake the money is paid, and the action is to recover that money back. Secondly, there may be a contract entered into in consequence of a mistake, and the action is to obtain the rescission or, in some cases, the rectification of such a contract. Thirdly, there may be an account settled in consequence of mistakes; if the mistakes are sufficiently serious there can be a reopening of the account.”