Williams v Fanshaw Porter & Hazelhurst

The claimant, Ms Elaine Williams, commenced an action in the Manchester County Court for professional negligence against the defendants, Fanshaw Porter & Hazlehurst, a firm of solicitors. I will refer to them as FP & H. I will describe the factual background later. FP & H admitted (or at least did not seriously deny) negligence and breach of duty, but pleaded that the action was time-barred by the Limitation Act 1980. It is common ground that the cause of action arose on 25 August 1994. If the normal limitation period of six years from the accrual of the cause of action applied Ms Williams needed to commence her action not later than 24 August 2000. In fact she did not commence it until 14 December 2000. Thus a limitation defence was to be expected, and such a defence duly materialised. Ms Williams’ reply to the defence was and is that on the particular facts of the case, which I will describe below, the six years limitation period did not start to run until a date which was less than six years before she commenced her action. She said that that was the result of s.32(1)(b) of the Limitation Act, or alternatively of s.32(2) of the same Act.

The District Judge directed that whether the action was in any event barred by limitation should be determined as a preliminary issue. The hearing to determine that issue took place before Recorder Brunnen in Manchester County Court on 30 and 31 January 2003. The Recorder reserved judgment and delivered it on 3 March 2003. He decided that s.32(1)(b) did not apply, and that s.32(2) did not apply either. The result was that the limitation period had expired before Ms Williams commenced her action. Therefore the action was statute barred. Ms Williams now appeals to this court by the permission of Lord Justice Mance.

Mr Bartley Jones QC and Mr Earlam, counsel for Ms Williams, have submitted that the decision of the Recorder was wrong so far as it related to s.32(1)(b). They say that that paragraph did apply, with the result that the limitation period did not start to run until a date which was less than six years before the commencement of the action on 14 December 2000. They do not challenge the Recorder’s decision so far as it concerned s.32(2). On behalf of FP & H Mr Sander supports the Recorder’s conclusion that s.32(1)(b) did not apply. He accepts, however, that, if it did, the time at which the limitation period would have commenced to run would have been too late for a limitation defence to succeed.

In my judgment, for the reasons which I will explain, the Recorder was wrong on the critical issue. I consider that on a proper view of the facts s.32(1)(b) did apply. The limitation period did not start to run at the time of the breach of duty (25 August 1994) but only at a later date, which, as I will describe later, may have been either 15 July 1995 or, possibly, 10 June 1996. Either date was less than six years before Ms Williams’ action was commenced. Therefore the action is not statute barred.

The general rules for limitation of actions in tort and contract are contained in ss.2 and 5 of the Limitation Act 1980.

2.

An action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued.

5.

An action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued.

Ms Williams’s claim against FP & H may sound in tort or in contract or in both. If the general rules apply the limitation period began to run when the cause of action accrued. In some cases there can be difficult questions about when a cause of action accrued, but not in this case. As I have already said, it is agreed that Ms Williams’s cause of action accrued on 25 August 1994.

There are exceptions to the general rules. The exceptions which matter in this case are contained in s.32. I will set out most of subsection (1) and the whole of subsection (2). As regards s.32(1) it will be seen that it contains three paragraphs. I reproduce all three of them, but it should be noted that the one which is specifically in point in this case is paragraph (b).

32

(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)

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.

So far as s.32(1)(b) is concerned the critical question is whether any fact relevant to Ms Williams’s right of action against FP & H was deliberately concealed from her by FP & H.

There have been a number of decided cases which concerned s.32. None of them was concerned with the specific point which arises in this case. I will briefly mention two House of Lords cases. In Sheldon v RHM Outhwaite (Underwriting Agencies) Ltd [1996] AC 102 their Lordships decided that s.32(1)(b) applies where the concealment of a relevant fact occurs after the cause of action has accrued as well as at the time when it accrues. I note Lord Browne-Wilkinson’s encapsulation (at p.142F) of the mischief aimed at: ‘to ensure that the Act does not operate to bar the claim of a plaintiff whose ignorance of the relevant facts is due to the improper actions of the defendant.’ Cave v Robinson Jarvis & Rolf [2003] 1 AC 384, [2002] UKHL 18, was concerned with whether the words in s.32(2) ‘deliberate commission of a breach of duty’ were satisfied if the defendant deliberately did something which has been found later to have been a breach of duty, but at the time when he did it he did not realise that it was a breach of duty. The House of Lords, overruling (much to the relief of professional advisers of all kinds) the earlier decision of the Court of Appeal in Brocklesby v Armitage & Guest [2002] 1 WLR 598, held that the words of s.32(2) were not satisfied. The subsection required the defendant, not just to know what he was doing, but also to know that it was a breach of duty. It did not apply to a negligent breach of duty which the defendant did not realise he was committing.

Mr Bartley Jones submits, and I agree, that his argument in the present case does not amount to a reintroduction of the overruled decision in the Brocklesby case. He says, and again I agree, that both Brocklesby and Cave were cases about s.32(2), whereas this case is exclusively about s.32(1)(b). There are, however, two passages in the speeches in Cave – one in the speech of Lord Millett and the other in the speech of Lord Scott – to which reference has been made in this case. I will not set them out here, but I will come to them at a later point.

In the following subparagraphs I will outline the relevant facts, occasionally commenting on the significance of some of them.

i)

In January 1990 Ms Williams attended at the medical practice of which she was a patient. She says that a doctor gave to her a repeat prescription for six months supply of a birth control drug known as Femodene. One of the doctors at the practice was Dr Salahuddin.

ii)

In May 1990 Ms Williams had a stroke, the consequences of which have been serious and enduring. She says that the stroke was caused by her having taken the Femodene. Because she had fluctuating blood pressure that drug was unsuitable and dangerous for her in that it exposed her to the risk of strokes. She also says that before the Femodene was prescribed for her the doctor ought to have checked her blood pressure, but he did not do so.

iii)

Ms Williams obtained legal aid to consider whether she could bring a claim for professional negligence against the doctor. In October 1991 she instructed FP & H to act for her. From an early time her case was conducted by Mr Brown. He is now a fully qualified solicitor and the managing partner of FP & H, but in 1991 he was an employee of the firm, and was still qualifying as a legal executive.

iv)

Ms Williams’ initial instructions to Mr Brown were that it was Dr Salahuddin who had prescribed the Femodene for her and who had omitted to check her blood pressure.

v)

On 17 May 1994 FP & H, acting by Mr Brown, commenced an action by Ms Williams in the Birkenhead County Court against Dr Salahuddin. This was case BI 423528. It should be noted that the claim was brought against Dr Salahuddin alone, not for example against a partnership of which he was a member.

vi)

Dr Salahuddin, no doubt supported by the Medical Defence Union or some similar body, instructed Hempsons to act as solicitors for him to defend the claim. On 15 July 1994 they wrote to FP & H: Dr Salahuddin denied that he had seen Ms Williams or that he had prescribed the Femodene; he should be ‘struck out of the proceedings’. This was supported by an affidavit of a solicitor at Hempsons.

vii)

On 22 July 1994 Mr Brown had a meeting with Ms Williams. She apparently said that she was now not sure whether it was Dr Salahuddin or another doctor who had prescribed the Femodene for her.

viii)

On 10 August 1994 Hempsons served a notice of application for a hearing in the Birkenhead County Court on 25 August 1994. They were obviously going to apply for the action against Dr Salahuddin to be struck out.

ix)

On or before 25 August 1994 Mr Brown agreed with Hempsons that on behalf of Ms Williams he would consent to the court making an order of the kind which Hempsons were applying for. It is important for the purposes of this case that he did not obtain instructions from Ms Williams to do this, and it is even more important that he did not inform her about it after he had done it. On 25 August 1994 the court made the consent order. Dr Salahuddin was to cease to be a party, and the claim against him was dismissed.

x)

Mr Brown says that he agreed to the making of the consent order in order to get some relief from pressure from Hempsons while he investigated whether it had or had not been Dr Salahuddin who had issued the prescription. He believed that he would be able to rejoin Dr Salahuddin to the action if he wished. However, he was wrong in that belief, and the actual effect of the consent order was to extinguish the possibility of Ms Williams pursuing a case for professional negligence against Dr Salahuddin – as subsequent events were to show. It is now agreed (at least for the purposes of this preliminary issue) that Mr Brown was negligent in consenting to the order, and that a cause of action against FP & H then accrued to Ms Williams. The action would have been one for the loss of a chance of recovering damages from Dr Salahuddin. If the limitation period for such an action commenced when the cause of action accrued, then the action had to be commenced before 25 August 2000.

xi)

On 15 September 1994 Mr Brown met Ms Williams again. It appears that on this occasion Ms Williams had a firmer recollection that it had indeed been Dr Salahuddin who had prescribed the Femodene. In evidence Mr Brown said that he thought that he told Ms Williams something about Dr Salahuddin having been ‘dropped out of the action’. However, the Recorder found that he did not.

xii)

On 3 October 1994 Mr Brown wrote a letter to Ms Williams, telling her that he had not been able to trace a record of the prescription, and that whether it had been Dr Salahuddin who prescribed it would be a matter of evidence, with her evidence to be evaluated against the doctor’s. He said he ‘could see no reason why we should not at this stage proceed with the claim’. He concluded: ‘There are a number of procedural matters which I now have to attend to, but I shall revert to you as soon as I have any news.’ This invites the comment that the consent order which had been made six or seven weeks earlier was a major item of news, but Mr Brown had not told his client about it yet, and he did not tell her about it in this letter of 3 October 1994 either.

xiii)

On the same date, 3 October 1994, Mr Brown wrote to Hempsons asking them to agree to Dr Salahuddin being rejoined to Case BI 423538.

xiv)

On 17 October 1994 Hempsons replied, refusing to consent.

xv)

On 26 October 1994 Mr Brown served an application to the court to rejoin Dr Salahuddin as a party to Case BI 423528.

xvi)

15 December 1994: nothing specific happened on this date, but it was six years before the date when the present action by Ms Williams against FP & H was commenced. Therefore, if the limitation period had not yet started to run and only ran from some time after this date, the action is not statute barred.

xvii)

On 16 December 1994 the District Judge at Birkenhead considered Mr Brown’s application for Dr Salahuddin to be rejoined to action BI 423528. The District Judge dismissed the application. He pointed out, unanswerably, that, because Dr Salahuddin had been the only defendant to the action and because the action against him had been dismissed (by the consent order of 25 August 1994), the action did not exist any more. It was impossible for Dr Salahuddin to be rejoined to a non-existent action. The District Judge ordered FP & H to pay the defendant’s costs of the application, thereby indicating, as it seems to me, his opinion of the ineptness of how FP & H, through Mr Brown, had conducted the case. FP & H did not appeal from the decision, but instead (as I will explain below) Mr Brown applied his mind to starting a new action against Dr Salahuddin.

xviii)

Mr Brown did not tell Ms Williams of the failed application to rejoin Dr Salahuddin. Indeed, he still did not tell her of the consent order of four months earlier which was the source of all the problems. With reference to the application and the District Judge’s dismissal of it Mr Brown says in his witness statement: ‘I was embarrassed by the result of the application and for that reason alone did not tell the Claimant of the same but sought advice from Counsel.’ I can sympathise with Mr Brown’s predicament. He was at an early stage in his legal career and was not yet qualified, and he had got out of his depth. Nevertheless there is no doubt that his professional duty was to inform his client of what had happened. He did not comply with that duty.

xix)

There is a finding by the Recorder ‘that Mr Brown was not aware at this stage that he had been negligent.’ I accept that the facts are primarily to be found by the first instance judge, not by the Court of Appeal, but I must nevertheless comment on this finding. Given what had happened before the District Judge, including the order that FP & H should pay the defendant’s costs and the absence of any appeal from the decision, it seems to me that Mr Brown must have known that he had been negligent in the sense that agreeing to the consent order had been a bad mistake for which he was responsible. The Recorder’s real point must surely be that Mr Brown still thought that the negligence could be cured by the commencement of a new action. On that basis Mr Brown believed that a claim in negligence against FP & H could be averted.

xx)

In March 1995 counsel advised that ‘the only way forward might be the issue of fresh proceedings against him [Dr Salahuddin] or any other party.’ This was tentatively expressed and there was in fact no way forward at all.

xxi)

There is no evidence that Mr Brown did anything about it until he received a telephone call from Ms Williams asking him to watch a television programme about Femodene. This led to another meeting with her on 18 July 1995 (the first time he had met her since September 1994). His attendance note merely says: ‘We discussed the position as regards her claim and I advised her what was going on.’ The Recorder finds that Mr Brown ‘explained the then current position to the claimant’. This probably carries the implication that at this meeting on 18 July 1995 Mr Brown finally told Ms Williams about the consent order, whether or not he also told her about the effect that it had had on the now defunct Case BI 423528. Mr Bartley Jones says that that was a distinctly charitable finding to Mr Brown. That may be so, but in this respect I would be very slow to go behind the Recorder’s finding.

xxii)

On 14 November 1995 FP & H, acting by Mr Brown, commenced a new action against Dr Salahuddin and another doctor: Case BI 509333. I mention at this point that the claim against the other doctor was later discontinued, and nothing turns on her having at one stage been a party to this new action.

xxiii)

On 1 December 1995 Hempsons applied for an order striking out the new claim against Dr Salahuddin as an abuse of process: Ms Williams, having sued Dr Salahuddin once and having consented to the action being dismissed, could not thereafter turn round and try to sue Dr Salahuddin again for exactly the same thing as before. There is a file note of Mr Brown of 6 December 1995 in which he wrote that he could ‘see no justification for Hempsons’s application’. The Recorder’s comment is that ‘Mr Brown still did not realise his breach of duty.’ I make a similar comment to one which I have made earlier. Despite the way that the Recorder expresses it, what he must mean is that Mr Brown still thought that, by the procedural technique of commencing a new action, Ms Williams’ claim against Dr Salahuddin could be pursued notwithstanding the consequences of the consent order.

xxiv)

On 26 February 1996 the District Judge heard Hempsons’s application for the new claim against Dr Salahuddin to be struck out. He acceded to the application and struck out the claim.

xxv)

Mr Brown, on behalf of Ms Williams, appealed against the District Judge’s decision. On 13 May 1996 the appeal was dismissed by HH Judge Bernstein. It seems that at that point Mr Brown recognised the fact that there was no prospect of Ms Williams maintaining an action against Dr Salahuddin.

xxvi)

On 10 June 1996 Mr Brown and Ms Williams met. He advised her to consult other solicitors. If he had not told her about the consent order at the meeting on 18 July 1995, he must have told her about it on this occasion.

xxvii)

On 3 July 1996 she did consult other solicitors, who are the firm now acting for her.

xxviii)

24 August 2000: nothing specific happened on this date, but it was the last day to commence an action against FP & H which would have been in time if the limitation period had started to run when the cause of action accrued, that is on 25 August 1994. No action had been begun by this date.

xxix)

On 14 December 2000 Ms Williams, acting by her present solicitors, commenced this action against FP & H in Manchester County Court.

xxx)

On 13 September 2002 the District Judge directed that limitation be tried as a preliminary issue.

xxxi)

On 3 March 2003, after a trial of that issue, Recorder Brunnen held that s.32(1)(b) did not apply, with the result that the limitation period had run from 25 August 1994 to 24 August 2000. Accordingly the limitation defence pleaded by FP & H succeeded.

The questions before the Recorder were whether, in terms of s 32(1)(b), Mr Brown deliberately concealed from Ms Williams ay fact relevant to her right of action against FP & H, and, if so, whether Ms Williams discovered the concealment (or could with reasonable diligence have discovered it) by 15^th December 1994 (six years before the commencement of the present action). The Recorder held that, until the dismissal of the appeal by Judge Bernstein on 13^th May 1996, Mr Brown did not deliberately conceal any thing from Ms Williams. Nor was there any concealment after the dismissal of the appeal. Within a month of the dismissal Mr Brown told her about the position and very properly advised her to consult other solicitors.

I will explain why I do not agree with the Recorder under the next heading, but I wish now to identify three factors which seem to me to have influenced him towards the decision which he reached.

i)

Mr Brown gave evidence, and clearly impressed the Recorder as a totally sincere and frank witness:

“I considered him to be an open and frank witness, who was ashamed of the way he had handled the Claimant’s case but was doing his best to give a truthful account of what had been in his mind at the time.” [Judgment para. 27].

ii)

Although Mr Brown did not tell Ms Williams about the consent order until considerably later than he should have done, his motive in not telling her was not that he wished to conceal from her the existence of a possible negligence action against FP & H. His motive was to avoid embarrassment for himself. That did not make what he did right, but it was something which might be viewed with a degree of sympathy given the way that he, an unqualified legal executive, had been put in charge of a quite tricky matter and had found that he could not cope.

iii)

At all times at least until the decision of the District Judge on 26 February 1996 (striking out the second claim against Dr Salahuddin), and possibly until the dismissal of the appeal by Judge Bernstein on 13 May 1996, Mr Brown honestly and genuinely believed that the situation created by the consent order could be cured, and that Ms Williams would still be able to bring her action against the doctor.

I begin with the specific terms of s.32(1)(b): ‘any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant’. Those words describe the condition which must exist before the operative part of s.32(1) takes effect. There are four points on the wording of the paragraph which should be noted.

i)

The paragraph does not say that the right of action must have been concealed from the claimant: it says only that a fact relevant to the right of action should have been concealed from the claimant.

ii)

Although the concealed fact must have been relevant to the right of action, the paragraph does not say, and in my judgment does not require, that the defendant must have known that the fact was relevant to the right of action. In most cases where s.32(1)(b) applies the defendant probably will have known that the fact or facts which he concealed were relevant, but that is not essential. All that is essential is that the fact must actually have been relevant, whether the defendant knew that or not. The paragraph does of course require that the fact was one which the defendant knew, because otherwise he could not have concealed it. But it is not necessary in addition that the defendant knew that the fact was relevant to the claimant’s right of action.

iii)

The paragraph requires only that any fact relevant to the right of action is concealed. It does not require that all facts relevant to the right of action are concealed.

iv)

The requirement is that the fact must be ‘deliberately concealed’. It is, I think, plain that, for concealment to be deliberate, the defendant must have considered whether to inform the claimant of the fact and decided not to. I would go further and accept that the fact which he decides not to disclose either must be one which it was his duty to disclose, or must at least be one which he would ordinarily have disclosed in the normal course of his relationship with the claimant, but in the case of which he consciously decided to depart from what he would normally have done and to keep quiet about it.

Applying s.32(1)(b) to this case with the foregoing points in mind, I observe that two facts were the following: that Mr Brown agreed to the consent order, and that the consent order was made. Those two facts are indisputably relevant to Ms Williams’s right of action against FP & H. They are the central elements of the negligent breach of duty which she alleges. Ms Williams did not know of those two facts until (on the Recorder’s tentative finding) 18 July 1995 or, (on an alternative view of the evidence which Mr Bartley Jones would favour) 10 June 1996. The reason why she did not know about them until one or other of those dates was because Mr Brown had not previously told her about them.

In my judgment Mr Brown, by not telling her about the two relevant facts, deliberately concealed them. It was the professional duty of the firm of solicitors by which he was employed to disclose the facts to the firm’s client. It fell to Mr Brown to comply with that duty on behalf of the firm, but he did not comply with it. It is possible, though I have to say that it would be surprising, that at the time of the consent order Mr Brown thought that the order was just a routine procedural matter which he did not need to tell his client about. If that is so, then for a time the non-disclosure of the order to Ms Williams was not deliberate concealment. But that cannot have continued to be the position after the decision of the District Judge on 16 December 1994, which refused to rejoin Dr Salahuddin to Case BI 423528 and ordered FP & H to pay the defendant’s costs of the failed application. I repeat the following sentence from Mr Brown’s witness statement: ‘I was embarrassed by this application and for that reason alone did not tell the Claimant of the same but sought advice from counsel.’ It is implicit in that sentence that Mr Brown thought about whether he would tell Ms Williams about the application and decided that he would not. It is also implicit that in the normal course of his relationship with a client of the firm he would have told her about the application: if telling her about it would not have embarrassed him he would have told her. Telling her about the application would necessarily have included telling her about the consent order. In my judgment the only possible conclusion is that, after the failed application of 16 December 1994 if not before, Mr Brown concealed the fact of the consent order from Ms Williams. Further, he did so deliberately: not to tell her was not just something which he did without thinking about it: it was a conscious decision on his part to refrain from doing something which he normally would have done and which he ought to have done. It is true that a desire to conceal from Ms Williams the possibility that she might have a claim in negligence against FP & H was not the reason why Mr Brown decided not to tell her what had happened: the reason was to avoid embarrassment. But in my view that makes no difference, and the Recorder was in error if (as I believe) he thought that it did make a difference. What is relevant to s.32(1)(b) is the fact of concealment, not the reason or motive for it. In Mr Sander’s skeleton argument for FP & H he writes: ‘An honest desire on the part of a solicitor to avoid embarrassment to himself or his firm is wholly different from an intention to conceal.’ I respectfully disagree: it is simply one possible motive for concealment – a motive which differs from the more common motive of not wanting the potential claimant to realise that he may have a claim against the solicitor’s firm.

Moreover, nor does it in my judgment make any difference that, at the times when Mr Brown was concealing the fact of the consent order from Ms Williams, he believed that the adverse consequences of that order upon Ms Williams’ ability to pursue a claim for damages against Dr Salahuddin could be cured. Notwithstanding Mr Brown’s belief in that respect (a belief which the Recorder considered, and which I accept, to have been honestly held, misguided though it was), it remains the case that Mr Brown did conceal the fact of the consent order from Ms Williams, and that he did so deliberately.

In my judgment the Recorder wrongly conflates (i) realisation by Mr Brown that he had made a mistake by agreeing to the consent order, and (ii) realisation by Mr Brown that his mistake had fatal consequences for Ms Williams’s potential claim against Dr Salahuddin and that the consequences could not be cured. In the concluding part of the Recorder’s judgment, after his detailed account of the facts, he writes (see paragraph 39):

“This review of the history leads me to find that it was only on the dismissal of the appeal [by Judge Bernstein on 13 May 1996] that it became clear to Mr Brown that by consenting to the order of 25 August 1994 he had committed a blunder which made the Claimant’s position in relation to Dr Salahuddin irretrievable and amounted to a breach of duty on his part.”

I can accept that it was only on the dismissal of the appeal in May 1996 that it became clear to Mr Brown that the consequences of his earlier ‘blunder’ could not be averted, but I do not accept that it was only at that late stage that it became clear to Mr Brown that agreeing to the consent order had been a blunder. That must have become clear to him not later that 16 December 1994, when the District Judge refused to rejoin Dr Salahuddin to the original action. It is a commonplace of human experience that someone who has made a mistake may realise it in time to take steps which prevent the mistake having harmful consequences. If he can do that it does not change the fact that he made a mistake in the first instance. The Recorder erroneously proceeds on the basis that, if the consequences are successfully averted, there never was a mistake (or a blunder) to begin with.

In paragraph 40 of the judgment and with reference to the situation after 16 December 1994 the Recorder writes:

“I find that at that stage he did not appreciate that he had done anything wrong, both because he did not consider that what had happened was his fault and because he believed that the situation could be rectified.”

I cannot agree with the thinking behind that sentence. The stage to which the Recorder was referring was when, although Mr Brown had agreed to the consent order in the belief that, if he later wished to resuscitate the claim against Dr Salahuddin, it would be a straightforward matter to get Dr Salahuddin rejoined as a defendant to Case BI 423528, the decision of the District Judge had shown that Mr Brown’s belief was entirely wrong, and the District Judge had ordered Mr Brown’s firm to pay the costs. How can Mr Brown possibly have not appreciated that he had done something wrong?

The Recorder gives two reasons, neither of which stands up to analysis. The first is that ‘he did not consider that what had happened was his fault’. That is a reference to Ms Williams’s vacillations about whether it was or was not Dr Salahuddin who had prescribed the Femodene for her. But, as the Recorder himself observed at an earlier point in the judgment (paragraph 24): ‘if there was doubt as to who the correct defendant was, the prudent course would be to join in all possible defendants rather than letting out the only existing defendant’. Mr Brown cannot have failed to realise that after the December 1994 decision of the District Judge. In any case, when Ms Williams was unsure in the meeting on 22 July 1994 whether it was Dr Salahuddin who had prescribed the Femodene, Mr Brown’s reason for his decision to agree to the consent order was that he thought that it would be possible to rejoin Dr Salahuddin to the action later. He was mistaken about that, and it is irrelevant for him to say that he would not have been in the position where he made the mistake if Ms Williams had been more definite in what she told him on 22 July. The Recorder’s second reason for his finding that, after the District Judge’s decision, Mr Brown did not appreciate that he had done anything wrong was that ‘he believed that the situation could be rectified’. I have already dealt with that. People not infrequently do things which were wrong, but are able to put the matter right before any adverse consequences follow. It is still the case that their original action was wrong.

For the foregoing reasons I cannot agree with the decision of the Recorder. In my judgment the conditions prescribed in s.32(1)(b) are present in this case: facts relevant to Ms Williams’s right of action against FP & H (namely the fact that Mr Brown agreed to the consent order and the fact that the order was made) were deliberately concealed from her by FP & H, acting by Mr Brown. I must however, consider whether there is anything to the contrary in the passages in the speeches of Lords Millett and Scott in the House of Lords in Cave v Robinson Jarvis and Rolf [2003] 1 AC 384. In my judgment there is not. I make the preliminary observation that their Lordships were not in any event considering a case which raised the issue raised by this one: they were concerned with an argument that, although s.32(1)(b) read alone did not apply to the facts with which the House of Lords was concerned, s.32(2) did apply and caused the circumstances to be treated as being within s.32(1)(b) after all. In this case there is no longer any argument that s.32(2) applies. The argument for Ms Williams (with which I agree) is that the conditions of s.32(1)(b) by themselves and without the expansion to them effected by s.32(2) are satisfied. It would be a misuse of the precedent system to allow this case to be determined by the way in which Lord Millett or Lord Scott explained s.32 for the purposes of the Cave case and not for the purposes of a case such as the present one.

Having said that, I begin with Lord Scott, with whose speech Lords Slynn, Mackay and Hobhouse concurred. The relevant passage is as follows (at p.403):

“A claimant who proposes to invoke section 32(1)(b) in order to defeat a Limitation Act defence must prove the facts necessary to bring his case within the paragraph. He can do so if he can show that some fact relevant to his right of action has been concealed from him either by a positive act of concealment or by a withholding of relevant information, but, in either case, with the intention of concealing the fact or facts in question.”

In my judgment the analysis of s.32(1)(b) which I have adopted in the foregoing discussion is consistent in all respects with that passage. Further, the conditions which Lord Scott identifies are fulfilled. The fact of the consent order is relevant to Ms Williams’s right of action against FP & H; it was concealed from her by Mr Brown’s withholding of information about it, and that was done with the intention of concealing the facts about the order (albeit with a motive of avoiding embarrassment rather than with a motive of reducing the risk of being sued for negligence).

Lord Millett (with whom Lords Mackay and Hobhouse concurred) put the matter slightly differently, though I very much doubt that he and Lord Scott intended there to be any practical difference between what each of them said. At p.394 he says this:

“In my opinion s.32 deprives a defendant of a limitation defence in two situations: (i) where he takes active steps to conceal his own breach of duty after he had become aware of it; and (ii) where he is guilty of deliberate wrongdoing and conceals or fails to disclose it in circumstances where it is unlikely to be discovered for some time.”

In my view (i) in that passage has in mind s.32(1)(b) by itself, and (ii) has in mind s.32(2). If that is right Lord Millett’s summary of s.32(1)(b) (on which this case depends) is that it applies where a defendant ‘takes active steps to conceal his own breach of duty after he has become aware of it’. I would accept that if those words were the words of the statute itself the question of whether they covered this case would be marginal. But they are not the words of the statute. I do not think that Lord Millett intended to do more than to give a condensed summary of the normal case to which para. (b) applies. Lord Scott’s analysis tracks the statutory words more fully and closely, and, as I have said, exactly fits the circumstances of the present case. I believe that my own conclusion is based with precision on a close analysis of the entire wording of the statute. Lord Millett’s brief summary does not persuade me to depart from it.

There is one other matter to cover. If I am right so far, and the conditions of s.32(1)(b) are present, what is the result? This is not contentious, but I ought to explain what the position is. The final part of s.32(1) provides:

“the period of limitation shall not begin to run until the plaintiff has discovered the … concealment … or could with reasonable diligence have discovered it.”

Ms Williams did not discover the concealment from her of the consent order until Mr Brown told her about it, and it has not been suggested that with reasonable diligence she could have discovered it any earlier. It must be remembered that she was a legally aided litigant, and would be totally dependent on her solicitors (which meant in practice Mr Brown) for all information about her case. Therefore the six years limitation period began to run when Mr Brown told her about the consent order. On the Recorder’s findings that appears to have been on 15 July 1995, although Mr Bartley Jones did not give up on his contention that a more appropriate inference from the primary facts would have been that it was on 10 June 1996. Assuming that 15 July 1995 was the date, the six years period ran until 14 July 2001. If the date had been 10 June 1996 it would have run until 9 June 2002. The present action against FP & H was commenced on 14 December 2000, within the limitation period on either view.

For the foregoing reasons I would allow this appeal and declare that Ms Williams’s claim against FP & H is not time-barred under the Limitation Act 1980.

I have had the benefit of reading in draft the judgment given by Park J, and I agree with his account of and conclusions on the facts.

The wording of s.32(1)(b) refers to a situation in which

“any fact relevant to the plaintiff’s cause of action has been deliberately concealed from him by the defendant.”

This wording is open to differing interpretations. We have to consider what the words “deliberately concealed” require by way of (a) mental element and (b) conduct. The wording requires the defendant to know some fact, and the fact must be relevant to the plaintiff’s cause of action. The wording clearly also requires a conscious decision by the defendant not to communicate that fact to the plaintiff. But those factors cannot be enough. A defendant may know a fact and may consciously decide not to communicate it for innocent reasons, e.g. because he fails to realise that it has any relevance whatever to the plaintiff. Must the defendant therefore realise that the fact is “relevant to the plaintiff’s cause of action” against himself or herself? If so, this would seem to mean that the defendant must at least have in mind the possibility of an actual or potential cause of action against him, realise that there was a fact relevant to it and then conceal that. Or is the sole additional element to be found in the nature of the conduct, or of the context, implicit in the word “concealment”?

As to the present context, the parties here were solicitor and client, and there is no doubt that a solicitor owes a duty to keep his client informed about the general conduct of a matter he is handling as well as about any error in the handling of the client’s affairs which may give the client cause for complaint against the solicitor. A solicitor who intentionally withholds from his client a fact about which he knows he ought to inform him or her can readily be said to “conceal” it. But in many cases there may be no running relationship, and, even where there is, it may not involve any general legal duty to inform the other party of relevant facts. On the face of it, ‘concealment’ in such a context might seem to require active conduct, rather than a mere decision to remain silent – even in circumstances where it would be normal or moral to speak. I return to this aspect below.

Subsection (1)(b) was described in differing terms in Cave v. Robinson Jarvis & Rolf [2002] UKHL 18; [2003] 1 AC 384 by Lord Millett (with whom Lords Mackay and Hobhouse agreed) and Lord Scott (with whom Lords Slynn, Mackay and Hobhouse agreed). The overlapping support for Lord Millett’s and Lord Scott’s speeches may not mean that their different descriptions of the subsection have the same effect. It was unnecessary to explore all aspects of subsection (1)(b) in that case. However, both speeches set the scene for the issues before us.

Cave decided that the wording of s.32(2) - “deliberate commission of a breach of duty” - requires a defendant not merely to have intended to do an act which constituted a breach of duty, but also to realise that the act involved a breach of duty. In such a situation, if the circumstances make it unlikely that that breach of duty will be discovered for some time, the subsection (by its words “amounts to”) introduces a “legal fiction” that there has been “deliberate concealment of the facts involved in that breach of duty”: cf Cave per Lord Millett at paragraph 14. The fiction extends to all the facts involved in the breach of duty, although in most cases the plaintiff is likely already to know some of them, so that the beginning of the limitation period will under s.32(1)(b) depend upon when he or she discovers or could with reasonable diligence have discovered the others.

In order to place s.32(2) in context, there was discussion in Cave of the general role and effect of s.32(1)(b). Lord Millett in paragraph 23 viewed s.32(1)(b) as aimed at situations of ‘active’ concealment, and s.32(2) as “enacted to cover cases where active concealment should not be required”, viz cases where there was both a deliberate commission of a breach of duty and the circumstances were such that the breach of duty was unlikely to be discovered for some long. On that basis he expressed the opinion in paragraph 25 that

“…section 32 deprives the defendant of a limitation defence in two situations: (i) where he takes active steps to conceal his own breach of duty after he has become aware of it; and (ii) where he is guilty of deliberate wrongdoing and conceals or fails to disclose it in circumstances where it is unlikely to be discovered for some time.”

Lord Scott on the other hand said in paragraph 60:

“…. deliberate concealment may be brought about by an act or an omission and, in either case, …. the result of the act or omission, i.e. the concealment, must be an intended result. But I do not agree that that renders subsection (2) otiose. A claimant who proposes to invoke section 32(1)(b) ….. must prove the facts necessary to bring the case within the paragraph. He can do so if he can show that some fact relevant to his cause of action has been concealed from him either by a positive act of concealment or by a withholding of relevant information, but, in either case, with the intention of concealing the fact or facts in question. In many cases the requisite proof of information might be quite difficult to provide. …. Subsection (2), however, provides an alternative route. The claimant need not concentrate on the allegedly concealed facts but can instead concentrate on the commission of the breach of duty. If the claimant can show that the defendant knew that he was committing a breach of duty, or intended to commit the breach of duty – I can discern no difference between the two formulations; each would constitute, in my opinion, a deliberate commission of the breach – then, if the circumstances are such that the defendant is unlikely to discover for some time that the breach of duty has been committed, the facts involved in the breach are taken to have been deliberately concealed for subsection (1)(b) purposes. I do not agree therefore …. that the subsection [i.e. subsection (2)], thus construed, adds nothing.”

I return to the structure of s.32 with this assistance. Deliberate commission of a breach of duty involves knowledge of wrongdoing. Where it is likely to be some time before the commission of a deliberate breach of duty is discovered, there is deemed to have been “deliberate concealment of the facts involved in the breach of duty”. These words in s.32(2) are a paraphrase referring to s.32(1)(b). Both under them and under the language of s.32(1)(b) itself, the legislature must have had in mind (at least as the typical concern) situations where a defendant deliberately concealed facts knowing that they were relevant to an actual or potential breach of duty. So read, s.32(1)(b) deals (at least typically) with deliberate concealment of facts known to be relevant to wrongdoing, while s.32(2) deals with deliberate wrongdoing, which is (in the specified circumstances) equated with deliberate concealment of wrongdoing. In each, the wrongdoing is the wrongdoing in respect of which the plaintiff is claiming. I leave for a moment the question whether this typical concern is the only concern of s.32(1)(b).

First, I say something more about the nature of “concealment”. Lord Millett underlined his view that s.32(1)(b) is concerned with what he described as “active concealment”, while s.32(2) was “enacted to cover cases where active concealment should not be required”. In paragraph 22 Lord Millett roots this distinction historically in Lord Greene’s powerful judgment in Beaman v. A.R.T.S. Ltd.. [1949] 1 KB 550, which in turn refers to the Privy Council’s advice in Bulli Coal Mining Co. v. Osborne [1899] AC 351. The underlying thinking would seem to be that mere non-disclosure, in the absence of any duty to speak, may be deliberate, but cannot constitute “concealment”. In contrast, Lord Scott speaks of a positive act of concealment and of withholding of relevant information apparently as simple alternatives. As at present advised, I would question whether they can be (although if they are it might reinforce the argument for requiring awareness on the defendant’s part of the relevance of the fact concealed to some actual or potential cause of action against him or her).

The existence of the solicitor-client relationship in the present case means that we do not directly have directly to confront the apparent difference between Lords Millett and Scott regarding the nature of concealment. Where, as here, there is a duty to speak, then the intentional suppression of information which it is known should be communicated pursuant to that duty can readily be regarded as “concealment” of that information. Here, the defendant solicitor’s duty to speak extended not merely to (i) any fact known by him to be relevant to a potential claim against him, but also to (ii) any fact known by him to be relevant to the ongoing conduct of the claim against a third party which he was (or was supposed to be) conducting on behalf of his client. If a solicitor decides not to disclose any fact falling within either (i) or (ii) to his client, knowing that it is his duty to do so (or, what amounts in law to the same, being reckless as to whether or not it is his duty to do so), then he can in each case be described as having “deliberately concealed” that fact from his client. The deliberateness derives from his knowledge that he ought to disclose and his intentional disregard of his duty to do so. But whether this is sufficient in the particular statutory context of s.32(1)(b) is a different matter. Case (i) falls on any view within the scope of s.32(1)(b). But whether case (ii) does so depends upon what precisely needs to be known and intended for there to be “deliberateness” within s.32(1)(b).

There are, as I have already indicated, two possible interpretations of the mental element required under s.32(1)(b). On the (slightly) more limited reading, s.32(1)(b) is confined to the typical situation; it therefore requires deliberate concealment of a fact in circumstances where the defendant realises that the fact has some relevance to an actual or potential claim against him (or is reckless as to whether or not it does). So read, s.32(1)(b) and s.32(2) can be said to present a more coherent scheme; and the running of a limitation period would not be postponed by a deliberate concealment of a fact by a defendant, which was in breach of a duty unrelated to the wrongdoing in respect of which the claimant later claims and which occurred in circumstances where the defendant did not realise that the fact suppressed had relevance to any such wrongdoing (and was not reckless in not realising this). The wider reading is that any deliberate concealment should carry the consequence attributed by s.32(1)(b), even though the defendant did not (and it may be could not) realise that the fact concealed had any relevance to any actual or potential wrongdoing. Deliberate concealment, at least if that means active misleading or knowing breach of a duty to speak, is a particularly serious matter; if a person is as a result kept in ignorance of a fact which later proves to be relevant to a cause of action against the person concealing the fact, it may be thought just that the limitation period should not run against that defendant, even though he or she did not realise the relevance of the fact to any cause of action. On the other hand, that conclusion could lead to cases where, for example, a solicitor’s deliberate decision out of, for example, laziness to delay communication of information about the general conduct of a matter for a month while he went on holiday would, if the information later proved relevant to some wholly unsuspected cause of action for negligence involving him or indeed some other member of the same firm, have the effect of restarting a limitation period as against his firm.

I would at this point make three observations about the position as it would be on the more limited reading of s.32(1)(b). First, the circumstances in which there could be deliberate concealment in breach of an unrelated duty without appreciating the relevance to some other wrongdoing of the fact concealed must in practice be limited. The present case happens to concern a solicitor-client relationship which involves a general or running duty to keep informed. But most relationships giving rise to causes of action do not fall into that category. And, even when they do, deliberate concealment is in practice more likely to occur because of consciousness of the likelihood of the relevance of the fact concealed to a potential cause of complaint, than for some other reason. Second, any requirement that a defendant must realise the relevance of the fact to the plaintiff’s right of action could not and should not be read narrowly. The plaintiff could not have to show that the defendant knew that there was a right of action which would succeed. The subsection refers to a fact “relevant” to the plaintiff’s cause of action. I consider that there could, even on the more limited reading, be “deliberate concealment” within the subsection in any case where the defendant deliberately concealed a fact realising that it was relevant (or reckless as to whether or not it was relevant) to an actual or a potential claim against him, even though he might himself believe that any claim would, if pursued, prove to be ill-founded. Third, the relevance of recklessness - and the irrelevance of motives – in the present discussion follow as a matter of general principle, although both are reinforced by vigorous remarks by Lord Greene MR at pp.560-1 in the case of Beaman to which I already referred.

I see the force of the argument that any intentional concealment should be sufficient, at least if concealment involves active misconduct or breach of a duty to speak. However it is also possible to argue that the rationale and wording of the statute tend to point to the (slightly) more limited reading that I have mentioned. Whether the wider or the more limited reading should be preferred may perhaps also be influenced by the proper resolution of the potential difference between Lord Millett’s and Lord Scott’s formulation of the nature of the conduct involved in concealment – that is, by whether mere silent withholding suffices or whether there must be active concealment or breach of a duty to speak. This latter aspect was not explored before us. In these circumstances, and since I consider that it unnecessary on this appeal to arrive at any final view as to whether the wider or narrower meaning should be preferred, I prefer not to do so.

Here, there was concealment of the consent order of 25^th August 1994 dismissing the claim against Dr Salahuddin (and of the failed application before the District Judge on 16^th December 1994 to “rejoin” Dr Salahuddin, disclosure of which would have revealed the consent order). The consent order was a fact relevant to Mrs Williams’ cause of action against the defendant. The defendant should have informed Mrs Williams of these matters in the ordinary performance of his duty as her solicitor to keep her informed about the course of her ongoing claim. On his case, he refrained from telling her out of “embarrassment”, rather than because he had any appreciation that there was or could be any claim against him. If these were the facts, with nothing more, then the difficult questions which I have identified above would squarely arise. But they are not.

Taking events in order, Mr Brown must have decided deliberately not to tell Mrs Williams about the consent order, both during their meeting on 15^th September 1994 and when writing his letter dated 3^rd October 1994. He could not have written

“I see no reason at this stage why we should not proceed with the claim”

without being conscious of the consent order whereby the claim had been withdrawn (even if he believed that it could be revived) and without having taken a deliberate decision not to mention the withdrawal. He said in this own witness statement that he appreciated that “it might not be quite straightforward” to “re-join” Dr Salahuddin, but that he did not tell Mrs Williams,

“in part because I did not appreciate quite what those difficulties were and in part because I did not believe that telling the Claimant that there might be problems would be of any help to her”.

That quotation simply underlines the deliberate nature of the concealment (active as well as passive and in breach of duty) in the letter of 3^rd October 1994, although it does not admit that he had any perception of wrongdoing on his own in relation to the consent order. On the contrary, the witness statement goes on to say that

“I did not then believe that I was responsible for the “procedural mess”. I had consented to the Order in August 1994 in good faith and now the Claimant was giving me more specific and clear instructions compared to the position in July 1994”.

Against this background, what happened before the District Judge on 16^th December 1994 and subsequently is critical. Prior to 16^th December 1994 the defendant was under the illusion that Dr Salahuddin could be “re-joined” and the claim revived, even if “it might not be quite straightforward”. The District Judge exploded any such illusion. As Park J has said, in paragraph 11(xix), given what happened on 16^th December 1994:

“… Mr Brown must have known that he had been negligent in the sense that agreeing to the consent order had been a bad mistake for which he was responsible”.

Thereafter, he was on his evidence

“embarrassed by the result of the application and for that reason alone did not tell the Claimant of the same but sought advice from Counsel”.

However, he deliberately omitted from his instructions to counsel any reference to the abortive application. He admitted in his witness statement that this too was “out of embarrassment”. Moreover, as Mr Sanders accepted before us, even on 18^th July 1995 when (so the judge found) Mr Brown told Mrs Williams that the first action was at an end and a second was necessary, he did not tell her that the first action had been dismissed by a consent order. Mr Brown could not have kept quiet as he did after the abortive application on 16^th December 1994 without being conscious that it was his mistake and negligence that had brought about its failure and led to a situation in which he was resorting (on a false basis) to counsel, and that the client would have cause to complain against him if he told her. Embarrassment caused Mr Brown to act as he did. But he cannot credibly have been embarrassed and have acted as he did, unless, as Park J says, he realised that he had been negligent in the sense that agreeing to the consent order had been a bad mistake for which he was responsible. Mr Sander’s submission before us that “an honest desire …. to avoid embarrassment to himself or his firm is wholly different from an intention to conceal” also involves the fallacy, exposed by Lord Greene in Beaman, of confusing the motive for with the existence of deliberate concealment. Here, out of embarrassment at his own obvious negligent mistake, Mr Brown deliberately concealed relevant facts from Mrs Williams.

Although the judge in paragraph 31 referred to Mr Brown’s explanation that it was out of embarrassment that he had omitted from his instructions to counsel any reference to the order of 16^th December 1994, the judge went on, somewhat curiously, in paragraph 33 to comment that the counsel “did not advert to any difficulty posed by the dismissal of the claim”. The judge also summarised counsel’s advice by saying that “He considered that the way forward was by way of fresh proceedings”. This was inaccurate. Even without knowing about the dismissal order or the order for indemnity costs, counsel’s cautious advice was that “In my view the only way forward might be the issue of fresh proceedings against [Dr Salahuddin] or any other party” and that “If fresh proceedings are to be taken, and in my view this may be the only way around the procedural difficulties ….”. The judge’s next finding was that, after receiving counsel’s advice, Mr Brown “did not think that there was any difficulty with that course” [i.e. commencing fresh proceedings]. I consider that remarkable and improbable. Even before the abortive dismissal of “re-joinder” on 16^th December 1994, Mr Brown’s state of mind was that “it might not be quite straightforward” to “re-join” Dr Salahuddin. It is hard to understand how the disastrous events of 16^th December 1994 and counsel’s qualified advice (on the basis of misleading instructions) can have led to the misconceived optimism which he asserted and with which the judge credited him. If Mr Brown did share it, he must have been shutting his eyes to the dismissal order (which he had suppressed from counsel and his client) as well as to counsel’s advice and to realities, and to have been at least reckless.

However, even assuming, as the judge found, that Mr Brown continued to believe, misguidedly and not even recklessly, that the situation would eventually be retrieved up to the time when the second proceedings against Dr Salahuddin were dismissed on 26^th February 1996, still that is no basis on which he can have thought that he had not committed a bad mistake or been negligent in 1994 in a way which gave his client a potential cause of complaint. It is no answer to the application of s.32(1)(b) that Mr Brown may have believed that, if the situation could be recouped by fresh proceedings, then Mrs Williams would be unlikely to suffer any substantial loss or need or be minded to pursue that potential cause of action. S.32(1)(b) does not require a defendant to think that any potential cause of action would actually be pursued, or that it would, if pursued, involve substantial loss, still less the same loss as that in respect of which it is in the event later pursued. Here any cause of action which Mrs Williams had arising out of the consent order sounded in both breach of contract and tort; in contract (and I would think also in tort) it arose at the time of the consent order in 1994. Mr Brown’s embarrassment regarding and concealment of the events of 1994 is to my mind only sensibly to be explained on the basis that he was aware that these events would, if known to Mrs Williams, give her considerable cause to complain – even if he could hope to assure her that the set-back that his negligent mistake had inflicted on her could (or rather, in counsel’s word, “might”) in some way be recouped.

In my judgment, therefore, all the ingredients required under s.32(1)(b) are, even on its more limited reading, satisfied: there was here on and after the hearing and order of 16^th December 1994 a realisation by Mr Brown that he had been negligent, in the sense that agreeing to the consent order had been a bad mistake for which he was responsible, and deliberate concealment from her by him as her solicitor of the fact of that negligence - or more specifically of the fact of the consent order (as well as the dismissal consequent on it, which would have revealed the existence of the consent order).

For these reasons, I agree that Mrs Williams is entitled to invoke s.32(1)(b) and that this appeal succeeds.

The Recorder had the opportunity, denied to us, of seeing and hearing Mr Brown give evidence. He made an express finding that even after the debacle in December 1994, when a wasted costs order was made against his employers’ firm, Mr Brown was not aware that he had been negligent when he had agreed to the consent order dismissing his client’s action the previous August. I do not consider that we can or should disturb that finding of fact about Mr Brown’s state of mind, particularly as the Recorder would in the normal course of things have a better insight into matters concerned with the legal prowess of unsupervised legal executives handling personal injuries litigation in Birkenhead than the members of this court.

I agree, however, with Park J that although Mr Brown seems to have attributed his client’s plight to causes of her own making (because her instructions to him changed in September 1994) he knew after December 1994 that the consent order had seriously prejudiced her position in the litigation and he deliberately concealed its existence from her although he was under a duty to tell her about it. The fact that he believed that he could retrieve the situation is neither here nor there, and this is where, in my judgment, the Recorder’s careful analysis went wrong. The claimant did not know a fact relevant to her cause of action until a date less than six years before this action was brought, and the reason why she did not know it was that Mr Brown intentionally concealed it from her when he was under a duty to tell her about it. These facts appear to me to fall within the compass of Lord Scott’s exposition of the effect of section 32(1)(b) of the 1980 Act in paragraph 60 of his speech in Cave.

For these reasons I agree that the appeal should be allowed.