Claimants making claims against banks have increasingly sought to rely on section 32(1)(b) of the Limitation Act 1980 (LA 1980) and allegations of concealment, as a basis to extend claims which might otherwise be time-barred. The recent decision in Dixon v Santander Asset Finance Plc & Anor  EWHC 1044 (Ch) provides a useful summary of the case law around the s.32(1)(b) LA 1980 concealment ground and practical application of this provision to the case facts.
In September 2008, the defendant banks demanded repayment under various financing arrangements provided to Just Vans Self Drive Ltd (Just Vans), of which the Claimant was sole director and shareholder. Just Vans failed to discharge its repayment obligations and was placed in administration by one of the banks in September 2008.
In October 2019, the Claimant brought claims for breach of contract and negligent misstatement against the banks relating to the enforcement action taken under the financing arrangements. The Defendants argued that the claims should be struck out and/or summary judgment be entered in their favour because the claims were time-barred.
The limitation period
It was not disputed that the primary six-year limitation period applicable to the claims had expired in September 2014, well before the proceedings in question were issued on 1 October 2019.
The Claimant argued, however, that the claims were within time under s.32(1)(b) LA 1980, which provides that where “any fact relevant to the plaintiff’s right of action has been deliberately concealed…the period of limitation shall not begin to run until the plaintiff has discovered the…concealment…or could with reasonable diligence have discovered it.”
The Claimant argued that three facts had been deliberately concealed by the Defendants:
- a letter which documented an alleged agreed moratorium on enforcement action (the Moratorium Letter);
- a spreadsheet prepared by one of the defendant banks containing information about the financed assets, which the Claimant alleged was negligently inaccurate and a significant cause of the company being placed in administration (the Spreadsheet); and
- the events leading to and true reasons why Just Vans was placed in administration in September 2008.
The Claimant argued that he had brought his action within six years of his discovery of these three facts. He claimed that he had only discovered the facts from the unused material and/or witness evidence from criminal proceedings in 2013. Although he had received the unused material in July 2013, it numbered potentially as many as 1 million pages and he contended that he did not and could not with reasonable diligence have discovered the facts until after 1 October 2013 (six years before issue of the present claim).
The court’s decision
The court drew out two (closely related) points from the established case law on s.32(1)(b) LA 1980 important to the case:
- Claimants must meet the “statement of claim” test, which requires the facts which have been concealed to be those which are essential for a claimant to prove in order to establish a prima facie case. The test is not met if the relevant fact merely makes a claimant’s case stronger.
- There is a need to distinguish between concealed evidence which merely supports an allegation essential to the cause of action, on the one hand, and concealed facts without which the claim is incomplete, on the other.
The court found that there was no real prospect of the Claimant establishing concealment of a relevant fact and so struck out the claims as time-barred.
The relevant facts to the Claimant’s causes of action were the existence of the moratorium and its breach, and the existence of the Spreadsheet and its alleged role as a catalyst for the administration. These were facts that the Claimant’s own evidence in the present and past proceedings demonstrated that he had long known and had “always” asserted “vigorously” and “consistently”. In September 2014, the Claimant had even translated them into a formal claim form, making identical claims to those of the present proceedings, which had not been pursued. The Moratorium Letter and the Spreadsheet were not themselves essential facts but merely evidence, which had emerged later, supporting what were the essential facts to causes of action the Claimant had already long had sufficient knowledge to plead. Furthermore, the judge found that the claim was pleadable even in the absence of the knowledge referred to at point 3 above. The Claimant could make his essential allegation that the company should not have been placed in administration in September 2008 without that particular knowledge and he had not included this alleged concealed fact as a component part of his claim in his claim form.
The judge held that if he were wrong that there was not concealment of relevant facts, then he considered that these facts were discovered or discoverable with reasonable diligence by the Claimant more than six years before the present proceedings were brought.
Abuse of process
Having already found the claims to be time-barred, the judge did not consider it necessary to determine whether the claims amount to an abuse of process. However, he helpfully noted that “I can think of no basis, and no real basis was suggested to me …, for taking the view other than that it is an abuse to issue proceedings which are identical to earlier proceedings which have been subject to inordinate and inexcusable delay but which presumably are still technically extant.”