Supreme Court clarifies deliberate concealment gateway for postponing limitation

In a significant and much-anticipated judgment, the Supreme Court has clarified the elements that a claimant must establish in order to rely on the “deliberate concealment” gateway in section 32(1)(b) of the Limitation Act 1980 and postpone the start of the limitation period: Canada Square Operations Ltd v Potter [2023] UKSC 41.

The Supreme Court summarised the necessary elements for s.32(1)(b) to be engaged as follows:

• a fact relevant to the claimant’s right of action (being a fact without which the cause of action is incomplete);
• the concealment of that fact by the defendant, either by a positive act of concealment or by a withholding of the relevant information; and
• an intention on the part of the defendant to conceal the fact or facts in questions.

Importantly, the Supreme Court rejected the suggestion that a fact will not be “concealed” for the purpose of s.32(1)(b) unless the defendant had a legal duty to disclose the relevant fact (although it noted that the existence of such a duty may be relevant to the question of whether any concealment was deliberate). It also stated expressly that the provision will not be engaged if the defendant’s concealment is merely reckless and not deliberate, highlighting that, as a matter of the ordinary use of language, the adjectives “deliberate” and “reckless” have different meanings.

For more information, please see our Civil Fraud and Asset Tracing blog post.