QB-2020-000092 - [2025] EWHC 002154 (KB)

Discussion

Preliminary

As a preliminary observation, the issues in these applications require or would require multiple determinations of the state of mind of the protagonists. Under section 32 of the Limitation Act 1980, the court must determine whether the defendants “deliberately concealed” any relevant fact and, if so, when the claimant “discovered” the fraud or concealment or “could with reasonable diligence have discovered it”. Under section 14A the court must determine when the claimant acquired “knowledge” according to the detailed formula in the section, which includes “knowledge which he might reasonably have been expected to acquire”. Relatedly, in order to ascertain whether these claimants committed an abuse of process by issuing a claim which they had ostensibly assigned to the FSCS turns – if it was an equitable assignment – on whether they “knew” or were “uncertain” whether the cause of action was vested in them.

In relation to the section 32 issue there is a further consideration which is that concealment and “deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time” (sub-section (2)) are issues upon which disclosure of documents may throw a good deal of light.

I acknowledge that cases involving section 32 and section 14A are not “at least as a matter of principle [my emphasis] outside the proper remit of CPR r 24” (see Davy v 01000654 Ltd [2018] EWHC 353 (QB)). Each case will be different. There will be cases where the evidence is clear and unlikely to be meaningfully developed or expanded upon at trial (including by the oral evidence of witnesses) and where there are no grounds for believing that disclosure will materially add to or alter the evidence which is relevant to whether the claim has a real prospect of success; see generally the commentary in the White Book at 24.3.2.1 to 24.3.2.3. But, in my view, this is not one of them. I agree with the submission of Mr McMeel that the issues I have described regarding the state of mind of the protagonists are not obvious candidates for summary determination but are more suitably dealt with at trial – perhaps a preliminary issues trial (though I am not to be taken as so ordering).