Win in Supreme Court for Rob Weir KC and Jonathan Butters on Limitation Case
In Canada Square Operations Ltd v Potter  UKSC 41 the Supreme Court gave significant guidance on limitation of actions, clarifying the law relating to the postponement of the running of time further to section 32 of the Limitation Act 1980 where the defendant deliberately conceals facts.
Mrs Potter had brought a claim under sections 140A-C of the Consumer Credit Act 1974 alleging her credit relationship with the defendant lender (then ‘Egg Banking’) was unfair to her because of its non-disclosure of the very high commission (95%) it received from the insurer in respect of a linked PPI policy. Liability was not in issue but the claim was time barred under primary limitation. Mrs Potter relied on section 32 on the basis that the defendant had deliberately concealed the fact and amount of commission. She only discovered those relevant facts less than 6 years before proceedings. Mrs Potter succeeded at all levels below. The Supreme Court unanimously dismissed the defendant’s appeal. Giving the only reasoned judgment, Lord Reed held that the law had taken a wrong turn in a line of cases at Court of Appeal level. For the purpose of section 32(1)(b) it is not necessary for the defendant to be under any form of duty to disclose relevant facts for its non-disclosure to amount to ‘concealment’, nor is it necessary for the defendant to know that the concealed facts were relevant to the claimant’s right of action. Approving the obiter dicta of Lord Scott in Cave v Robinson  1 AC 384, the section requires concealment by the defendant of a relevant fact from the claimant, either by a positive act of concealment or by a withholding of relevant information, and in either case, with an intention to conceal those facts. A claimant can also rely on the defendant’s deliberate breach of duty for the purpose of section 32(2), but only where the defendant knew it was committing the breach of duty or intended to do so.
The Court of Appeal had been wrong to find it was sufficient for the defendant to be reckless as to whether its conduct amounted to a breach of duty. Applying the law to the facts, the defendant had consciously decided not to disclose the commission to the claimant so that section 32(1)(b) applied. Section 32(2) did not apply. Although the defendant had committed a breach of duty, it could not be shown that it had knew or intended its deliberate non-disclosure to be a breach of duty (as opposed to merely knowing of a risk of the same).
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