Implications of Concealment on the Statute of Limitations

Implications of Concealment on the Statute of Limitations

It is well established law that claims founded on professional negligence are barred at the expiration of 6 years from the date in which the cause of action accrues.  However, where a party does not know the material facts in which to bring a professional negligence claim, the limitation period is 6 years from “the earliest date in which the Claimant or any person in whom the cause of action was vested before him first had both the knowledge required for bringing an action for damages in respect of the relevant damage and the right to bring such an action (Section 29 of Limitation Act 1953)”.

 “Deliberate concealment” often includes a lie designed to protect the liars back from a claim.  However, accordingly to the judgment of Park J, in the case of Williams v. Fanshawe Porter & Haslehurst [2004] EWCA Civ 157 it is not necessary to prove that a lie has occurred.  Park J, specifically stated that “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 decide 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 keep quiet about it”.

Where a professional intentionally withholds from his client a fact about which he knows he ought to inform him or her, such a failing can readily be said to be “concealment”.

If having found that concealment has taken place, it is then a question as to whether a party could have discovered the concealment with reasonable diligence at an earlier date, to establish whether the limitation period has expired.  In order for a party to be put on notice that concealment has taken place, it is often the position that something has occurred to put the party on notice.

MALCONLAW 2010