Anyone involved in dealing with claims quickly learns that there is no such thing as a certain outcome in court. Equally, we all grow used to seeing shocking first-instance decisions overturned on appeal.

However, perhaps once in a decade the Court of Appeal comes out with a decision which is universally greeted with opprobrium.

In Brocklesby vs Armitage and Guest (A&G), Brocklesby instructed his solicitors to transfer a property to a company in April 1989. He even executed the transfer to the company, but his solicitors took no steps to advance the transaction. He became aware of the solicitors' failure in 1992 and compromised the possession and debt claim against him by his building society. In 1997, he brought an action against A&G, claiming damages for negligence for having failed to carry out his instructions.

The question of limitation arose, a claim in contract and tort being prima facie statute-barred where it is commenced more than six years after the accrual of the cause of action. However, the Limitation Act 1980 provides that there should be a postponement of the limitation period where “any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant”, and that deliberate commission of a breach of duty in circumstances where it is unlikely to be discovered for some time amounts to deliberate concealment.

Stating the case
Brocklesby alleged that the solicitors knew, or ought to have known, that he wrongly believed they had implemented his instructions and that, accordingly, the fact the solicitors were in breach of duty had been concealed from him.

The judge agreed with the solicitors that Brocklesby had to allege that they had deliberately chosen not to inform him of their failing, but gave him 28 days to amend his pleading.

Brocklesby appealed and a two-judge Court of Appeal agreed with him – he didn't have to demonstrate that a fact relevant to the plaintiff's right of action had been deliberately concealed, but could rely on the fact that the commission of the act that involved the breach of duty had been deliberate or intentional.

The effect of this interpretation is to attach the adjective deliberate to the “negligent” act. Unless the defendant lacks capacity – still rare in professional negligence cases – any commission of any act involves a conscious decision of some sort. As a result most, if not all, professional negligence claims involve deliberate concealment, and an extended limitation period.

This creative approach to interpretation has found favour in a number of subsequent cases, principally Cave vs Robinson Jarvis and Rolfe. Here the Court of Appeal failed to follow the convention that a three-judge Court of Appeal could overrule a two-judge one (as was that in Brocklesby), but upheld another longstanding convention of solicitors' claims, namely that the Solicitors' Indemnity Fund always ends up paying.

Confidently, I predict that Cave, and therefore Brocklesby, will be overturned and, upon a common-sense reading of the Limitation Act, the law returned to the position where everyone thought it was previously – that deliberate concealment involves unconscionable conduct or deceit.

The effect of Brocklesby and Cave is to ensure that no professional man or woman can ever say with certainty that a claim against them is time-barred.

  • Alan Radford is a partner of Nottingham-based firm Browne Jackobson.