[1994] 4 All ER 481

Limitation of action - Postponement of limitation period - Action for breach of contract and duty - Deliberate concealment of relevant facts - Plaintiffs issuing proceedings outside statutory six-year limitation period - Plaintiffs alleging that defendants had deliberately concealed facts relevant to their right of action - Concealment occurring after plaintiffs' cause of action had arisen - Whether running of limitation period postponed - Whether later concealment capable of defeating time bar - Limitation Act 1980, s 32(1)(b).

In April 1992 the plaintiffs, who were Lloyd's names on syndicates managed by the defendant underwriting agency, issued proceedings against the agency and other members' agents, complaining of breaches of contract and duty by the defendants in or before 1982. The defendants by way of defence asserted that the plaintiffs' claim was time-barred as it was not brought within the six-year limitation period prescribed by ss 2 and 5 of the Limitation Act 1980. The plaintiffs however asserted that the running of the limitation period had been postponed under s 32(1)(b)^a of the 1980 Act because, after their cause of action had arisen, the defendants had deliberately concealed from them facts relevant to their right of action. The judge held, on a preliminary issue of law, that the plaintiffs were entitled to rely on s 32(1)(b) of the Act to overcome the statutory time bar. The defendants appealed, contending that the deliberate concealment (which was alleged to have occurred over a year after the acts complained of) could not operate to postpone the running of the limitation period where it had already begun to run, since the wording of s 32(1)(b) imported no notion of interruption or recommencement of the limitation period and indicated that the deliberate concealment had to occur at the outset when the cause of action would otherwise accrue, in which event it would postpone the running of the limitation period until discovery of the concealment. The plaintiffs contended (i) that in cases of negligent breach, concealment would almost always occur some time after the breach when the defendant came to appreciate his error and took steps to cover it up, and that if such later concealment had no effect on the running of time, s 32(1)(b) would be deprived of much practical substance and (ii) in reliance of the equitable exception to the old statutory limitation rule, that a defendant whose unconscionable conduct had denied the plaintiff the opportunity to sue in time should not in conscience be permitted to plead the statute to defeat a claim brought timeously after the plaintiff had learned or should have learned of it.

481

Held - The appeal would be allowed for the following reasons-
   (1) (Staughton LJ dissenting) On its true construction, s 32(1)(b) of the 1980 Act did not suspend or postpone the running of the limitation period in cases where the defendant had deliberately concealed facts relevant to the plaintiff's claim after his action had arisen until the discovery of the concealment, since the language of s 32(1)(b) itself did not operate to interrupt a limitation period which had already begun to run. If the draftsman had intended to provide that time elapsed between accrual of the cause of action and the defendant's concealment should be treated as if it had not elapsed, or that the running of the limitation period should, notwithstanding any earlier running of time, begin again following discovery or reasonable discovery of any concealment, he could easily have done so and, therefore, the inference had to be that that was not an end which he had wished to achieve. The basic rule was that, after a period prescribed by statute, a plaintiff's claim was barred and since the plaintiffs were unable to bring themselves within the s 32(1)(b) exception to that rule they were unable to overcome the statutory time bar (see p 494 d to f, p 495 d, p 504 c and p 507 a to c, post); Thorne v Heard [1894] 1 Ch 599, Beaman v A R T S Ltd [1949] 1 All ER 465, Kitchen v Royal Air Forces Association [1958] 2 All ER 241 and dictum of Megarry V-C in Tito v Waddell (No 2) [1977] 3 All ER 129 at 245 considered.
   (2) (Per Sir Thomas Bingham MR and Kennedy LJ) Up to 1986 there had been an unjust lacuna in the law which had allowed non-personal injury plaintiffs who could not rely on s 26^b of the Limitation Act 1939 or s 32 of the 1980 Act to lose their cause of action before they knew they had it. The s 14A and 14B amendments to the 1980 Act (inserted by the Latent Damage Act 1986) had been plainly intended to fill that lacuna by giving unwitting recipients of negligent and unsound advice an extended period in which to sue from the time of discovery, or reasonable discovery, that the advice was unsound. Those later developments showed that it would be unsafe to prefer the plaintiffs' construction of s 32(1)(b) on the basis that the alternative would have involved a risk of unfairness (see p 494 a to d, p 506 e to g and p 507 c, post).

Notes
For postponement of limitation period where the defendant deliberately concealed facts relevant to plaintiff's right of action, see 28 Halsbury's Laws (4th edn) para 917.
   For the Limitation Act 1980, ss 2, 5, 14A, 14B, 32, see 24 Halsbury's Statutes (4th edn) (1989 reissue) 650, 653, 662, 664, 683.

482

Summonses
The plaintiffs, John Brooke Sheldon and other names of Lloyd's Syndicates 317 and 661, issued a writ on 29 April 1992 against the defendants, R H M Outhwaite (Underwriting Agencies) Ltd and other members' agents, claiming damages and/or equitable compensation and, by a reamended points of claim, they alleged against the defendants breach of (i) the terms of underwriting agency agreements made by them with the plaintiffs, (ii) fiduciary duty, (iii) general duty of care to the plaintiffs and (iv) that the defendants had deliberately concealed the facts relevant to the plaintiffs' rights against the defendants. In their points of defence served in February 1993, the defendants denied deliberate concealment and asserted that the plaintiffs' claim was time-barred under the Limitation Act 1980. In their points of reply served in July 1993, the plaintiffs alleged that the primary cause of their delay was the deliberate concealment, which in effect postponed the running of the limitation period under s 32(1)(b) of the 1980 Act. The defendants, however, issued a summons pursuant to RSC Ord 18, r 19 to strike out paras 7 to 11 of the plaintiffs' points of reply which referred to the deliberate concealment. The summons was heard in chambers but judgment was given by Saville J in open court. The facts are set out in the judgment of Saville J.

483

20 October 1993. The following judgment was delivered.

SAVILLE J. The plaintiff Lloyd's names in these proceedings were underwriting members of Syndicates 317 and 661, whose central allegation is that the managers of those syndicates failed properly to perform their responsibilities in regard to the writing and reinsuring of a number of 'run off' contracts in 1981 and 1982. The writ was issued in April 1992 and the points of claim served later that year. In addition to joining issue on the substantive allegations in this pleading, the defendants have raised a plea of limitation. In points of reply the plaintiffs seek to rely upon the 'deliberate concealment' provisions of s 32 of the Limitation Act 1980 as an answer to the plea of limitation. The defendants now seek to strike out the relevant paragraphs of the points of reply on the grounds that the facts and matters pleaded do not bring the matter within s 32 of the 1980 Act.
   The submission made by the defendants is that s 32 of the 1980 Act only applies to a deliberate concealment that occurs at the time when the claimant's cause of action arises and not to any later concealment. In the present case it is common ground that some at least of the plaintiffs' pleaded rights of action arose before the end of 1982, whereas the facts and matters alleged by the plaintiffs to amount to deliberate concealment all occurred after the beginning of 1984.
   Section 32 of the 1980 Act, as later amended, provides as follows:

   In support of the defendants' submission, Mr Hunter QC relied upon the fact that the section is expressed to deal with 'postponement' of the limitation period, the fact that the section provides that the limitation period 'shall not begin to run' until the concealment is discovered or should have been discovered, and the fact that, as a matter of general principle, once a limitation period has begun to run, then it continues without interruption. In these circumstances Mr Hunter submitted that the words of the section were wholly inapt to cover a case where a right of action had arisen with a later deliberate concealment. In such a case the limitation period would start to run under the provisions of Pt I of the 1980 Act. If it had been intended to cover such a case, the legislature would not only have used words such as 'suspension' or 'interruption' instead of or in addition to 'postponement' but would also have hardly confined itself to stipulating that the limitation period would not begin to run, since ex hypothesi the case to be covered would be one where on any view the period had begun to run. Furthermore, Mr Hunter submitted that his construction fitted much better with the other two cases dealt with in the section, namely fraud and mistake, where it is clear that the matters preventing time from beginning to run had to be contemporaneous with (as well as part of) the right of action.
   I am not persuaded by this argument for the following reasons. In the first place it is, as I understand it, common ground that the expression 'deliberately concealed' in s 32 was used in place of the expression 'concealed by the fraud' found in s 26 of the Limitation Act 1939, because the case law had made clear that 'fraud' in fact encompassed any conduct which could be categorised as unconscionable and which had the effect of concealing the right of action of the plaintiff. In those cases, for example Beaman v ARTS Ltd [1949] 1 All ER 465, [1949] 1 KB 550, Kitchen v Royal Air Forces Association [1958] 2 All ER 241, [1958] 1 WLR 563 and King v Victor Parsons & Co (a firm) [1973] 1 All ER 206, [1973] 1 WLR 29, t is clear that the Court of Appeal were proceeding at least upon the assumption that unconscionable conduct after the wrongdoing giving rise to the right of action could fall within the 'concealed by the fraud' provisions of the 1939 Act. Indeed, the debate was rather the other way round, namely whether in addition the nature of the wrongdoing giving rise to the cause of485 action itself or the circumstances in which the wrongdoing took place could also amount (without proof of actual deceit or the like) to concealment within the meaning of the then statutory provision. Furthermore, it seems to me that the Kitchen decision is an example of a case where subsequent concealment was actually held to preclude reliance on limitation. Mr Hunter submitted that this was because (apparently) the point was not argued, but even if this is so, it seems to me that these cases contain authoritative guidance on the point. The 'concealed by the fraud' provisions were designed (albeit perhaps not very well) to reflect the pre-existing principles of equity which in turn, as it seems to me, did apply to cases where subsequent conduct concealed the plaintiff's rights: see eg Bulli Coal Mining Co v Osborne [1899] AC 351 at 363-364, [1895-9] All ER Rep 506 at 509-510. Thus it is perhaps hardly surprising that in these cases no one put forward the present argument.
   In the second place, there is nothing to suggest that the 1980 Act was designed to cut down, as opposed to clarifying, the previous width of what is now described as deliberate concealment, nor indeed did Mr Hunter suggest that this was the case, though of course his submission was that the previous law was that which he contended s 32 carried into effect.
   In the third place, I do not accept Mr Hunter's analysis of the words used in s 32. Part I of the 1980 Act sets out what it describes as the 'ordinary' time limits but makes them subject to extension or exclusion in accordance with Pt II, where s 32 is to be found. If there is a wrongdoing followed by deliberate concealment, then the ordinary time limit is extended or excluded so that the period runs from the date when the concealment is or ought to have been discovered. Mr Hunter submitted that this would involve the proposition that at any time (or at least up to the expiry of the ordinary period running from the date of the wrongdoing) a deliberate concealment would mean that the time would start again and run for the full period from when the concealment was or ought to have been discovered. This is so, but I do not find it surprising or unacceptable. It seems to me that deliberate concealment can only operate in cases where the plaintiff is unaware of the fact or facts in question relevant to the right of action, for otherwise, ex hypothesi, there could be no concealment. In such cases, at any time up to the expiry of the ordinary period, unconscionable behaviour concealing those facts will have the effect of precluding or at least discouraging the plaintiff from pursuing an existing right of action. In other words, as time goes by the mischief which equity and now the statute seeks to remedy does not reduce. As to a case where the concealment occurs after the ordinary period has expired, my view is that deliberate concealment could not be called in aid, at least so as to enable the plaintiff to mount an effective action, since by that stage the plaintiff has already lost the remedy of the right to sue, so that ex hypothesi the conduct relied upon could not have the effect of concealing a right of action.
   Finally, I am not persuaded that the so-called general principle that once time starts to run it runs without interruption is of any assistance. To my mind reliance upon such a principle comes close to begging the question, which is simply whether s 32 does exclude or extend the ordinary time limits when there has been deliberate concealment after the right of action has arisen. In addition I should record that I did not find any assistance in comparing s 32 with other sections of the 1980 Act.
   For these reasons I must refuse the defendants' application. It remains to say that, for these same reasons, I must respectfully disagree with the contrary486 view on subsequent unconscionable behaviour expressed obiter by Megarry V-C in Tito v Waddell (No 2) [1977] 3 All ER 129 at 244, [1977] Ch 106 at 245.
   In conclusion, I should make clear that nothing in this judgment goes to the question whether or not any of the facts and matters relied upon by the plaintiffs would, if established, amount to deliberate concealment within the meaning of s 32 of the 1980 Act.

Interlocutory appeal
The defendants appealed with the leave of the judge.

30 June 1994. The following judgments were delivered.

SIR THOMAS BINGHAM MR. This appeal is against a preliminary ruling on an issue of law made by Saville J in the Commercial Court on 20 October 1993. The issue he had to decide was whether the plaintiffs could rely on s 32(1)(b) of the Limitation Act 1980 to overcome a statutory bar otherwise applicable to their claim where the deliberate concealment which they allege occurred after their causes of action had arisen. The judge held that they could. The defendants challenge that ruling.
   The plaintiffs were all Lloyd's names on Syndicates 317 and 661 for the year 1982. Those syndicates were managed by the named defendant, R H M Outhwaite (Underwriting Agencies) Ltd. The other defendants in the action were the plaintiffs' members' agents. The plaintiffs complain of acts done or not done in or before 1982. Their writ was not issued until April 1992. Thus their claim is defeated by the six-year limitation period prescribed by the Limitation Act 1980 on which the defendants rely, unless the plaintiffs can show that the running of the limitation period has been postponed under s 32(1)(b) of that Act.
   There has been no investigation of the facts. The judge made it clear that his judgment did not bear on the question whether any of the facts and matters pleaded by the plaintiffs would, if established, amount to deliberate concealment within the meaning of s 32. Like the judge, this court must approach the legal issue without regard to that question. What matters is that the earliest acts and omissions said to constitute deliberate concealment for purposes of s 32(1)(b) occurred over a year after the breach of contract or duty on which the plaintiffs' claims are founded, and unless such deliberate concealment has the effect of preventing the limitation period beginning to run or suspending or postponing its running the plaintiffs' actions are barred by ss 2 and 5 of the 1980 Act.

487

Section 32 of the 1980 Act
   As amended in 1986 and 1987, s 32 of the Act now provides:

It is sub-s (1)(b) on which the plaintiffs rely. But the defendants argue that the language of sub-s (1), in providing that the period of limitation shall not in the prescribed circumstances 'begin to run', contradicts the plaintiffs' argument. In the case of an action based on fraud (sub-s (1)(c)) the limitation period will not begin to run at all until the fraud or mistake is or should be discovered. But in the case of a breach of contract or a damage-causing breach of duty, not accompanied by contemporaneous deliberate concealment of the cause of action from the plaintiff by the defendant, the limitation period will in the ordinary way begin to run. The defendants accordingly argue that deliberate concealment cannot, on the wording of the statute, operate to postpone the running of the488 limitation period in a case where it has already begun to run. Deliberate concealment will, they say, either occur at the outset, when the cause of action would otherwise accrue, in which event it will postpone the running of the limitation period until discovery (or imputed discovery) of the concealment, or it will have no effect at all, because the limitation period will already have begun to run and the subsection imports no notion of interruption or recommencement of the limitation period which has already begun to run. The defendants point to ss 29(5) and 34(5) of the 1980 Act and to the Limitation (Enemies and War Prisoners) Act 1945 as examples of drafting techniques used where it was intended to suspend or interrupt the limitation period or cause time to start running again. No such technique, the defendants rightly contend, is to be found in s 32.
   These are persuasive and compelling arguments. But the 1980 Act followed 350 years during which questions of limitation have been intermittently addressed, and I do not think one can safely construe s 32(1)(b) in isolation from the developments which preceded it.

Previous history
   The Limitation Act 1623 laid down limitation periods for a wide range of civil claims. It admitted no exceptions, save in the case of minors, married women, persons of unsound mind, prisoners and those beyond the seas. The common law courts applied the statute, as they were bound to do, even though it led to what might seem hard decisions: Prideaux v Webber (1661) 1 Lev 31, 83 ER 282, Rhodes v Smethurst (1838) 4 M & W 42, 150 ER 1335 and Homfray v Scroope (1849) 13 QB 509, 116 ER 1357. In the second of these cases Alderson B expressly rejected the view that the limitation period, once it had begun to run, could be interrupted-

   The severity and inflexibility of this statutory rule were mitigated by courts of equity to permit actions to proceed after expiry of the statutory limitation period where the plaintiff's cause of action was founded on or concealed by the fraud of the defendant. Booth v Earl of Warrington (1714) 4 Bro Parl Cas 163, 2 ER 111 is a case in which this rule was applied and it was held that the statute should not avail the dishonest defendant. It was felt to be against conscience that a defendant who had not deceived the plaintiff should be able to rely on the statute to defeat the plaintiff's claim: see Hovenden v Lord Annesley (1806) 2 Sch & Lef 607 at 634 per Lord Redesdale LC. The rule was also applied in cases such as Blair v Bromley (1847) 2 Ph 354, 41 ER 979 and Gibbs v Guild (1882) 9 QBD 59; affg (1881) 8 QBD 296, but in the absence of fraudulent concealment the statutory bar applied, as in Armstrong v Milburn (1886) 54 LT 723, [1886-90] All ER Rep 596; affg (1885) 54 LT 247.

489

   This equitable rule received some partial recognition in s 26 of the Real Property Limitation Act 1833, which enacted:

The plaintiff relied on this provision in Willis v Earl Howe [1893] 2 Ch 545, but unsuccessfully. The defendant's predecessor in title had entered into possession of the land in 1798. The court held that that entry, whether or not it was wrongful, was not fraudulent and had not been concealed. Time therefore started to run against the plaintiff and those through whom he claimed in 1798. Certain later acts of alleged deception were treated as irrelevant, since they did not deprive the plaintiff and those through whom he claimed of their interest. The decision turned on the construction of the section. In Thorne v Heard [1894] 1 Ch 599 at 605 Lindley LJ described s 26 as 'legislative recognition and expression of previously well-settled principles in equity', adding that 'those principles were and are applicable to all kinds of property, and not to real property only', but it may be doubted whether this is entirely correct (as Lindley LJ himself appears to have acknowledged in Betjemann v Betjemann [1895] 2 Ch 474 at 479).
   In Thorne v Heard a trustee committed an innocent breach of trust in paying money to a solicitor who converted it and concealed his act from the plaintiff. If was plain that the solicitor could not enjoy the benefit of the statute in any claim against him, but the action was against the trustee and the question was whether the trustee could rely on the limitation defence given to him by s 8 of the Trustee Act 1888. It was argued on the trustee's behalf that he was not party or privy to the solicitor's fraud, and so was entitled to the benefit of the statute, and this argument prevailed. It is, however, apparent from observations of Lindley and A L Smith LJJ that they attached significance to the fact that the solicitor's fraud and concealment took place after the cause of action against the trustee had already accrued (see [1894] 1 Ch 599 at 603, 605, 614-615). But this point does not seem to have been addressed in argument, and the authority of the case must, in my view, be limited.
   In Bulli Coal Mining Co v Osborne [1899] AC 351, [1895-9] All ER Rep 506 the appellants had fraudulently and furtively mined the respondents' coal, to which (as they knew) they were not entitled. It was argued on their behalf that the equitable rule gave the respondents no protection, since the appellants had taken no steps to conceal their deliberate wrongdoing. The Judicial Committee of the Privy Council rejected this argument, declining to draw any distinction between furtiveness and deliberate concealment. The present question did not arise. In Lynn v Bamber [1930] 2 KB 72 the plaintiff alleged both fraudulent misrepresentation and fraudulent concealment, both of which pleas were held to be in principle good to defeat the statutory bar, and the acts relied on to defeat the statute may well have postdated the accrual of the original cause of action. The report of the case does not, however, throw much light on the alleged acts of concealment and in the event there was held to have been no fraud and no concealment, so the authority of this case also for present purposes is limited.

490

   In 1934 the Law Revision Committee under the chairmanship of Lord Wright (and with a notably strong membership) was invited to consider various aspects of the law of limitation, including the scope of the rules on concealed fraud. The committee reported in 1936 (see The Statutes of Limitation: Fifth Interim Report (Cmd 5334)) and found that considerable doubt existed, in particular on the interrelationship of the equitable and common law rules. The committee concluded (on this aspect) (para 22):

The committee did not address in any more specific way the present problem of fraudulent concealment postdating the breach of contract or duty relied on.
   The committee's recommendation was reflected in s 26 of the Limitation Act 1939, which began:

There followed a proviso broadly to the same effect as s 32(3) of the 1980 Act.
   The Court of Appeal had occasion to consider this section in Beaman v ARTS Ltd [1949] 1 All ER 465, [1949] 1 KB 550. On the facts, the plaintiff's cause of action in conversion arose and the defendant's fraudulent concealment of that cause of action took place at the same time. The present issue did not therefore fall for decision. It is, however, evidence from the judgment of Lord Greene MR that he regarded 'subsequent active concealment of a fraudulent nature' as enough to give the plaintiff the benefit of the statutory postponement (see [1949] 1 All ER 465 esp at 467, [1949] 1 KB 550 esp at 559). He seems to have regarded that as the paradigm case and to have asked himself whether contemporaneous fraudulent concealment had the same effect, concluding that it did.

491

   The question arose more squarely in Kitchen v Royal Air Forces Association [1958] 2 All ER 241, [1958] 1 WLR 563. The plaintiff's solicitors failed to issue a writ within the limitation period applicable to fatal accidents claims. Her cause of action against them accrued in May 1946. In October 1946 the alleged tortfeasor told the plaintiff's solicitors it was willing to make (and in fact made) a payment for the benefit of the plaintiff, but the making of the payment was effectively concealed from her by the solicitors. The real issue in the case was whether what happened in October amounted to fraudulent concealment within the meaning of the section, and it was held that it did. But it seems that the court treated the concealment in October as grounds for denying the solicitors' claim to reply on the statute to bar the plaintiff's claim based on her cause of action which had accrued in May. This is perhaps most explicit in the judgment of Parker LJ, who, agreeing with Lord Evershed MR, said ([1958] 2 All ER 241 at 251-252, [1958] 1 WLR 563 at 576):

This plainly supports the plaintiffs' argument. But the support is limited, since it does not appear that argument was directed to the point. This may have been because the non-disclosure in October, if properly regarded as concealment, was a further actionable breach of duty, and the damages recoverable for both breaches of duty were in principle the same. Counsel may well have thought it best to direct his argument to showing that there was no wrongful concealment in October, since if he lost on that it could not help him to succeed on the present point.
   Archer v Moss, Applegate v Moss [1971] 1 All ER 747, [1971] 1 QB 406 and King v Victor Parsons & Co (a firm) [1973] 1 All ER 206, [1973] 1 WLR 29 both concerned defective building work knowingly carried out and covered up to prevent the defects being discovered for a long time. In each case there was held to have been concealment by fraud within the meaning of s 26.
   In 1971 the Law Reform Committee were invited to reconsider the law relating to limitation. Their Final Report on the Limitation of Actions (Cmnd 6923) was published in 1977. The committee were agreed that the postponement conferred by s 26 of the 1936 Act should be retained, but advised that the section should be redrafted so as to eliminate the reference to fraud and so give effect to the thrust of the more recent cases. The majority of the committee were content to accept that there would be hard cases, not involving personal injuries, in which a plaintiff would be unable, through no fault of his own, to ascertain before the expiry of the limitation period that he had suffered damage (see para 2.35). A defendant who had not acted unconscionably was thought to be entitled to rely on the statutory defence of limitation, in the interest of certainty. The committee did not consider whether later concealment would prevent time beginning or continuing to run against an earlier cause of action, and made no mention of the observation of Megarry V-C in Tito v Waddell (No 2) [1977] 3 All ER 129 at 245, [1977] Ch 106492at 245-246 that if time had already begun to run, he did not think that a supervening fraudulent concealment would start time running again. This expression of opinion, obiter though it was, must of course command very considerable respect.
   Section 32 of the 1980 Act, quoted above, gave effect to the spirit, although not the letter, of the Law Reform Committee's recommendation (see para 2.24 of the report). There, for the purposes of construing s 32, the relevant materials end. But it is perhaps relevant to record (irrelevantly for the purpose of construing s 32) how the law now stands.
   In its twenty-fourth report (see the Report on Latent Damage (Cmnd 9390)) published in November 1984, the Law Reform Committee considered the law of limitation as it affected negligence cases involving latent defects outside the personal injury field. The committee were concerned about cases involving defective building or unsound professional advice in cases where there was no deliberate concealment but where the injured party might be unaware of the defective work or the unsound advice or the resulting damage for many years. The committee recommended (among other things) that in such cases the existing six-year limitation period should be subject to an extension which would allow a plaintiff three years from the date of discovery, or reasonable discoverability, of significant damage (para 4.9). There was to be a longstop of 15 years (para 4.13), but this was not to apply in cases of fraud, deliberate concealment or mistake (para 4.20). Effect was given to these recommendations by the Latent Damage Act 1986, which inserted ss 14A and 14B into the 1980 Act. It is common ground between the parties to these appeals that s 14A, even if applicable to the plaintiffs' claims, will not enable them to defeat the statutory bar pleaded by the defendants. To defeat the statutory bar they must show, as a matter of law, that they are entitled to rely on s 32(1)(b) of the 1980 Act.

The present appeal
   I do not think the materials reviewed above yield a very clear answer to the problem raised by this case. Nor do I think that the issue can safely be decided on considerations of practical justice. If, in the seventy-first month following breach of a simple contract, the contract breaker conceals the breach from the potential claimant who is unaware of it, it can fairly be said to be absurd if the claimant then has another six years to sue from the date when he discovers or reasonably should discover the concealment. But if, in the second month after a breach of a simple contract, the contract breaker conceals the breach from the potential claimant who is unaware of it, it would seem unjust that the claimant should in effect be deprived, by the contract breaker, of his opportunity to seek redress. Arguments of this kind, as it seems to me, cancel each other out.
   The strongest arguments advanced on behalf of the plaintiffs are in my judgment these.
   (1) The equitable exception to the old and unqualified statutory limitation rule rested on the principle that a defendant whose unconscionable conduct had denied the plaintiff the opportunity to sue in time should not in conscience be permitted to plead the statute to defeat the plaintiff's claim provided the claim were brought timeously once the plaintiff learned or should have learned of it. Given that a defendant cannot be said to conceal that of which the plaintiff is already aware, the plaintiffs' construction better reflects this old and salutary equitable principle. The defendants' construction, by contrast, would493 allow a defendant, to a great or lesser extent, to reap the fruits of his own unconscionable conduct.
   (2) It seems clear that deliberate breaches of the Archer v Moss and King v Victor Parsons & Co variety are now squarely covered by s 32(2) of the 1980 Act. That means that many, perhaps most, claims covered by s 32(1)(b) will be claims in negligence. But negligent breaches, not being deliberate, will almost always be breaches of which the defendant is, at the time, unaware. If, therefore, he takes steps to conceal the breach from the plaintiff, such concealment will almost always occur, in such a case, some time after the breach, when the defendant comes to appreciate his error and takes steps to cover it up. To hold that such later concealment has no effect on the running of time may be said to deprive the subsection of much practical substance.
   With considerable hesitation, and after more than one change of opinion, I conclude (differing from the judge) that these arguments should not prevail. My reasons are these.
   (1) The basic rule is, and has since 1623 been, that after a period prescribed by statute (or applied by courts of equity following the statute) a plaintiff's claim is barred. If these plaintiffs are to defeat the bar pleaded by the defendants they must bring themselves within an exception to the basic rule.
   (2) Nothing in the language of s 32 of the 1980 Act suggests that the draftsman intended to create the exception for which the plaintiffs contend. Had he intended to provide that time elapsed between accrual of the cause of action and the defendant's concealment should be treated as if it had not elapsed, or that the running of the limitation period should (notwithstanding any earlier running of time) begin again following discovery or reasonable discovery of any concealment, he could easily have done so, and legislative models were to hand. The inference must be that this was not an end he wished to achieve.
   (3) The plaintiffs' construction of s 32 gains no support from consideration of its lineal statutory ancestors, s 26 of the 1939 Act and s 26 of the Real Property Limitation Act 1833.
   (4) A purposive construction is of course appropriate where the draftsman's purpose can be discerned, but the pretext of purposive construction is not a warrant for the judge to give the statute an effect which, with the benefit of hindsight, he feels the draftsman would have been well advised to give it. Neither the Law Revision Committee in 1936 nor the Law Reform Committee in 1977 alluded to this problem in their reports or made any recommendation concerning it. The 1939 and 1980 Acts followed and were in part based on these reports. There is nothing to suggest the respective draftsmen had this target in their sights at all, and every reason to suppose that they did not.
   (5) In no reported case has it been held, following argument on the point, that supervening concealment entitles a plaintiff to rely on the statutory exception. In Thorne v Heard the Court of Appeal appears to have thought, and perhaps held, that supervening concealment did not avail him. In Beaman's case the Court of Appeal seems to have assumed, and in Kitchen's case its decision may have rested on the view, that supervening concealment did avail him. That was not, however, the obiter opinion of Megarry V-C in Tito v Waddell (No 2) and his was the most recent expression of opinion when the 1980 Act was enacted. It cannot in my view be said that authority establishes the exception for which the plaintiffs contend, or even that the 1980 Act was494 enacted against a settled background of law of which the draftsman must be taken to have been cognisant.
   (6) There was, in my opinion, an unjust lacuna in the law up to 1986, which allowed non-personal injury plaintiffs who could not rely on s 26 of the 1939 Act or s 32 of the 1980 Act to lose their cause of action before they knew they had it. That was a source of concern to some members of the Law Reform Committee in 1977 (see para 2.36 of their report) and may well explain why, just before the 1980 Act was passed, the committee was invited to consider further the limitation aspects of negligence claims arising from latent damage. The amendments made following the committee's further report were plainly intended to fill this unjust lacuna by giving unwitting recipients of negligent and unsound advice an extended period in which to sue from the time of discovery (or reasonable discovery) that the advice was unsound. These later developments do in my view show that it would be unsafe to prefer the plaintiffs' construction on the basis that the alternative would have involved a risk of unfairness. It did; and to some extent at least that was remedied. It would seem at least arguable that these plaintiffs could have relied on that statutory extension.
   I would allow this appeal.

STAUGHTON LJ. Either solution to the problem in this appeal can give rise to absurdity. Deliberate concealment might start in one case on the day after the cause of action and last for six years; in another, it might start only on the day before the action would have become time-barred, and then last for one day. If the argument for the underwriting agencies is right, the plaintiffs in the first case would get no extension; if the argument for the names is right, the plaintiffs in the second would enjoy a total limitation period of 12 years. So it is not possible to assert with conviction that Parliament must have intended one solution rather than the other.
   Against that background I turn first to the language of the section and other legislative material. Section 32(1) of the Limitation Act 1980 provides that 'the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake ...' That is not at first sight designed to cover the case where there has been no concealment until some time after the cause of action has arisen, so that the period of limitation has begun to run. It would have been more appropriate to use the language of s 29(5): '... the right shall be treated as having accrued on and not before the date of the acknowledgment or payment.'
   Nevertheless I do not regard the language of the section as an insuperable obstacle. It can, for example, be treated as providing that the period of limitation which the law regards as appropriate will be one beginning to run after discovery etc. In the Fifth Interim Report of the Law Revision Committee (Cmd 5334) published in 1936 it is said (at para 13):

Is that, in point of language, so different from the wording of s 32(1)?
   In fact the Law Revision Committee recommended a solution which accords entirely with the argument for the names in this case. They said (at para 22):

495

   '... in all cases to which the Statutes of Limitation apply or are applied by analogy, where a cause of action is founded on fraud, committed by the defendant or his agent, or some person through whom he claims, or where a cause of action unconnected with fraud is fraudulently concealed from the plaintiff by the defendant or his agent, or someone through whom he claims, the right of the plaintiff to sue shall be deemed to have first accrued at the time when he discovered such fraud or could with reasonable diligence have discovered it.'

   Did Parliament intend to depart from that recommendation and produce a different result? Or was the wording of s 26 of the Limitation Act 1939, repeated (in this respect) in the 1980 Act, intended to give effect to that recommendation?
   Turning to the numerous cases that were cited, I find only three of direct assistance. The first is Thorne v Heard [1894] 1 Ch 599. That case was concerned with a claim to recover the proceeds of sale of property subject to a second mortgage; the money had been misappropriated by the solicitor for the defendants, who were the first mortgagees. In answer to a plea that the claim was barred by lapse of time, the plaintiff relied on the equitable effect of fraud. This was held not to avail him for two reasons: first, the fraud and its concealment occurred after the plaintiff's cause of action had accrued; secondly, it was the fraud and concealment of the solicitor and not of the defendants. That the first ground formed part of the reasoning for the decision is to my mind plain from the judgment of Lindley LJ, and also to some extent from that of A L Smith LJ (see [1894] 1 Ch 599 at 605, 614 respectively).
   It follows in my opinion that Saville J was wrong to conclude that 'pre-existing principles of equity ... did apply to cases where subsequent conduct concealed the plaintiff's rights', at all events if some interval of time occurred between the accrual of the cause of action and the subsequent conduct.
   The second case which favours the underwriting agencies is the decision of Megarry V-C in Tito v Waddell (No 2) [1977] 3 All ER 129, [1977] Ch 106.
   To a different effect is Kitchen v Royal Air Forces Association [1958] 2 All ER 241, [1958] 1 WLR 563. There the plaintiff claimed damages from her solicitors for negligence in the formulation and prosecution of a claim against an electricity company. The solicitors said that the action was time-barred, and the plaintiff in turn relied on fraudulent concealment.
   It was held that the solicitors had been in breach of their duty to their client during the period from November or December 1945 to June or July 1946. Lord Evershed MR held that there was no fraudulent concealment at that stage (see [1958] 2 All ER 241 at 246, [1958] 1 WLR 563 at 569). But there was fraudulent concealment in October and November 1946, after the cause of action against the solicitors had arisen. According to Lord Evershed MR it was a concealment-

Parker LJ said:

   That decision is plainly inconsistent with the view that concealed fraud, or deliberate concealment, is only relevant if it exists at the moment when the cause of action accrues. But it is said by Megarry V-C in Tito v Waddell (No 2) [1977] 3 All ER 129 at 245, [1977] Ch 106 at 245 that the point was not argued, and was decided sub silentio. It is true that it does not feature with any degree of clarity in what Lord Evershed MR described as 'three distinct points for our determination' (see Kitchen [1958] 2 All ER 241 at 244, [1958] 1 WLR 563 at 567). And if sub silentio means that the court did not say that it was deciding the point, then the description applies. But at the very least it can be said that the contrary view never occurred to, or at any rate seemed at all plausible to, Lord Evershed MR, Parker and Sellers LJJ, Mr Patrick O'Connor or his junior.
   I return to s 32(1) of the 1980 Act. The purpose of the provision in question, as was said for example by Lord Coleridge CJ in Gibbs v Guild (1882) 9 QBD 59 at 65, is that a man should not be allowed to take advantage of his own wrong. In my view it is permissible to apply a purposive construction to the section, without doing any great violence to its wording, rather than the 'narrowly semantic approach' criticised by Lord Diplock in Fothergill v Monarch Airlines Ltd [1980] 2 All ER 696 at 705, [1981] AC 251 at 280. I would read the section as providing that the period of limitation shall not be treated as beginning to run until after discovery of the fraud etc. It is true that this does not exactly equate the plaintiff's remedy with the extent of the wrong; he may well obtain a longer extension than he deserves. But Parliament, which used such a nice adjustment for arbitration proceedings in s 34(5), evidently thought it inappropriate in s 32(1)-perhaps because there might be uncertainty as to the date when deliberate concealment began.
   Mr Hunter QC for the underwriting agencies had a point on s 32(3). I am not sure that I fully understood it. But in any event it does not persuade me to adopt his interpretation of s 32(1). I would dismiss this appeal.

KENNEDY LJ. (1) The issue which Saville J had to consider in this case was whether reliance can be placed upon s 32(1)(b) of the Limitation Act 1980 where the alleged deliberate concealment relied upon occurred an appreciable time after the plaintiffs' alleged causes of action arose.

(2) The 1980 Act
   Section 2 of the 1980 Act provides: 'An action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued', but by virtue of s 1(2) that ordinary time limit is subject to extension or exclusion in accordance with the provisions of Pt II of the Act, and in Pt II is to be found s 32(1), which, so far as relevant, provides:

   Mr Hunter QC for the appellant defendants invited us to consider with care the words 'the period of limitation shall not begin to run' because, he submits, they show that it is only concealment that takes place before in the normal course of events the period of limitation has begun to run which causes a postponement. Miss Dohmann QC for the respondent plaintiffs submits that the wording of s 32(1) should not be so constrained. If after the cause of action has accrued and the period of limitation has begun to run a fact relevant to the plaintiff's right of action is deliberately concealed from him by the defendant then not only does time cease to run against the plaintiff but the clock returns to zero, and time does not start to run again until the plaintiff has discovered the concealment or could with reasonable diligence have discovered it. And that is the position, she submits, even if at the time of concealment the statutory period of limitation had almost expired, and whether or not the plaintiff was in fact influenced by the act of concealment on the part of the defendant. So although if there is deliberate concealment by a defendant whenever it occurs a plaintiff will usually need the benefit of the statutory provision, the construction for which Miss Dohmann contends can produce a strange result. A more equitable solution, as it seems to me, would be if the act of concealment were to stop the clock running until the plaintiff discovered it or could with reasonable diligence have done so, but as both sides concede that is not an interpretation which can possibly be given to the words of the statute. In my judgment if s 32(1) had to be considered in isolation this court should adopt the interpretation for which Mr Hunter contends, because the words which he emphasises do postulate the period of limitation beginning to run for the first time. Other sections of the 1980 Act do, as it seems to me, lend some support to Mr Hunter's main submission, because they show that where Parliament wished to exclude a period from computation of time it said so in terms (see s 34(5)) and where it wished to postpone the running of time to a date after the accrual of the cause of action it was able to find a suitable formula by means of which to do so (see s 29(5)).

(3) The early history
   But this statute, like any other, does not have to be considered in isolation. We are entitled to look at the legislative history and the parliamentary purpose, and both sides contend that if we do so we will find support for the positions that they adopt.
   In Prideaux v Webber (1661) 1 Lev 31, 83 ER 282 the Statute of Limitations was held to be a good bar despite the fact that the King's courts were not available when time was running. In Hovenden v Lord Annesley (1806) 2 Sch & Lef 607 at 634 Lord Redesdale LC said of Booth v Earl of Warrington (1714) 4 Bro Parl Cas 163, 2 ER 111 that in that case the House of Lords had held-

That shows the willingness of equity to ameliorate the consequences of the strict application of the Statute of Limitations, but it seems to me to leave in doubt the way in which equity would operate in the circumstances of the present case.
   In 1833 Parliament enacted the Real Property Limitation Act, which provided a 20-year limitation period for persons claiming land or rent in equity, but the rigour of that provision was to some extent ameliorated by s 26, which, so far as material, provided:

Chronologically the next case to which our attention has been invited, Rhodes v Smethurst (1838) 4 M & W 42, 150 ER 1335, was not a case involving the 1833 Act. It was an action on a promissory note. After the cause of action accrued the debtor died, and no action was commenced for more than six years from the date of the accrual of the cause of action. The Statute of Limitations was invoked. Lord Arbinger CB found-

Alderson B, whilst recognising the effect of equity, said that 'if the statute begins to run it must continue to run' (see 4 M & W 42 at 63, 150 ER 1335 at 1344). Although that case did not involve fraud it does, as it seems to me, suggest that the proposition for which Mr Hunter contends, represented the law as it stood in 1838.
   In Homfray v Scroope (1849) 13 QB 509 at 512, 116 ER 1357 at 1358-1359, an action under the Tithe Act 1836, Lord Denman CJ followed Rhodes's case, saying of the statute with which he was concerned that it 'bears the closest analogy to the general Statute of Limitations: and, with regard to them, it is a well known and settled rule, that, where the time has once begun to run, no subsequent disability, however involuntary, will suspend their operation'.
   In Gibbs v Guild (1882) 9 QBD 59 the plaintiff sought damages for fraudulent misrepresentation, and when the Statute of Limitations was raised asserted that he did not discover and had no reasonable means of discovering the fraud until within the six years before the action was commenced. That being accepted he was in equity entitled to relief. Brett LJ said (at 69):

Miss Dohmann places reliance upon that passage, which is slightly differently reported in less authoritative reports but I do not find the passage to be of particular assistance in the present case.
   In Armstrong v Wilburn (1886) 54 LT 723, [1886-90] All ER Rep 596 the plaintiff in a solicitor's negligence action, in which the issue of limitation was raised, said that as a result of concealment by the defendant she did not discover and did not have the means of discovering the defendant's negligence until within the six-year period prior to the commencement of the action. In fact no negligence was proved, but Lord Esher MR said (54 LT 723 at 723, [1886-90] All ER Rep 596 at 596):

Miss Dohmann relies on the final qualification as suggesting that if fraudulent concealment were proved at whatever date the plaintiff would be able to overcome the limitation defence. In my judgment that is reading too much into a remark which was obiter in a case which did not raise the issue which we have to consider.
   In Willis v Earl Howe [1893] 2 Ch 545, an action of ejectment, the plaintiff claimed to be the heir to an estate, and the court had to consider s 26 of the 1833 Act. Lindley LJ said, quoting from Lord Herschell in Lawrance v Lord Norreys (1890) 15 App Cas 210 at 214, [1886-90] All ER Rep 858 at 860, that to prove a concealed fraud 'the person bringing the suit must shew that he or some person through whom he claims has been by such fraud deprived of the land which he seeks to recover, and that the fraud could not with reasonable diligence have been known or discovered more than the statutory period before the action was brought' (see [1893] 2 Ch 545 at 549-550). In the instant case there was found to be no fraud, and no concealment, so the claim failed.
   In 1893 there was published Dr Hewitt's Treatise on the Statutes of Limitations in which it is said of s 26 of the 1833 Act that it 'was framed in accordance with the recommendations of the Real Property Commissioners, and was intended to confirm (in the case of suits to recover land or rent) the existing rules of equity as to the effect of fraud upon the operation of the Statutes of Limitations' (see p 206). The author says (p 211):

500

Armstrong v Milburn was cited in support of the passage which I have identified.
   In Thorne v Heard [1894] 1 Ch 599 a solicitor acting for a first mortgagee failed properly to account for moneys received on the sale of the property, to the detriment of the plaintiff, who was the second mortgagee. When the solicitor became bankrupt the facts emerged, and the plaintiff sued the first mortgagee, but was held to be statute-barred because the cause of action accrued when the first mortgagee committed an irrevocable breach of trust by allowing the solicitor to receive the surplus sales' moneys instead of handing them over to the plaintiffs. The fraud of the solicitor was not perpetrated or concealed by the defendant. When acting fraudulently the solicitor was acting in his own interests. Lindley LJ said that Willis v Earl Howe decided-

   He also said that the 1833 Act 'is a legislative recognition and expression of previously well-settled principles in equity, and those principles were and are applicable to all kinds of property, and not to real property only'. However Lindley LJ qualified that observation in Betjemann v Betjemann [1895] 2 Ch 474, where the Statute of Limitations was relied on in a partnership dispute.
   The final nineteenth century authority to which our attention was invited is Bulli Coal Mining Co v Osborne [1899] AC 351, [1895-9] All ER Rep 506, where the appellants had furtively for years taken the respondents' coal by underground trespass. The Statute of Limitations was held to have no application. Lord James, giving the opinion of the Privy Council, having pointed out that equity follows the law, said ([1899] AC 351 at 363, [1895-9] All ER Rep 506 at 510):

Of course once again that does not deal with the situation where time has begun to run before any concealment occurs.
   In Re McCallum, McCallum v McCallum [1901] 1 Ch 143 the plaintiff claimed title to a freehold property and relied on a conveyance of which the plaintiff's father and the defendant, who was the beneficiary of her father's estate, were unaware. The defendant was able to rely on the 1833 Act because although there had been concealment it was by the plaintiff's mother and not by the defendant or the father from whom she derived title. The case is therefore not directly in point, but there are useful observations about the general nature of the equitable jurisdiction, and the extent to which it was reflected in the 1833 Act. Lord Alverstone CJ said (at 150):

And Vaughan Williams LJ said (at 158-159):

501

   'It seems to me that the words of s. 26 sufficiently indicate that the intention of the Legislature, at the time when it enacted a legislative rule respecting the period within which relief might be granted to those seeking to recover any land or rent of which they might have been deprived, was to reserve to Courts of Equity that jurisdiction which those Courts had always exercised to relieve against "concealed fraud" when discovered.'

   In the Yorke Prize Essay for the University of Cambridge for 1929, 'Limitation of actions in equity', Mr John Brunyate of Trinity College, Cambridge and the Chancery Bar said, in a chapter on fraud (p 23):

Miss Dohmann understandably places some reliance on that passage, but it is to be noted that the assertion that the equitable rule applied where the defendant had by later fraudulent acts concealed from the plaintiff an existing cause of action in unsupported by authority, and the researches of counsel have not produced any authority to support it, other than those to which I have referred.
   In 1934 the Law Revision Committee was asked to consider, inter alia, 'the circumstances affecting defendants which prevent the periods of limitation from beginning to run, and the scope of the rules as to concealed fraud.' The committee's report was published in 1936 (Cmd 5334), and having looked at various statutory periods of limitation it states (para 7):

In para 13 of the report it is recognised that 'in applying equitable remedies to cases of fraud or mistake, the period of limitation is not reckoned until the fraud or mistake is or could, with reasonable diligence, have been discovered'. In para 16 the report states:

Garner v Wingrove was a case in which a defendant in possession of land was able to take advantage of statutory provisions as to limitation against the owner even though after the time began to run the owner died and title passed to an infant. In dealing with acknowledgment and part payment the 1936 report recognised in para 19 that in some cases time can be made to start afresh, but para 22 does not suggest any such possibility where a cause of action is subsequently concealed by fraud. Indeed, rather the contrary: what is says is-

The report then refers to s 33 of the 1833 Act and observes:

Mr Hunter places some reliance upon that observation. The report continues:

   There is then a discussion of the position before and after the Supreme Court of Judicature Act 1873, with particular reference to the effect of equity upon the common law. The committee concluded that it was 'undesirable that this state of obscurity and uncertainty should continue'. They said: 'We are of opinion that a defendant should not be permitted to set up lapse of time which is due to his fraudulent conduct.' Miss Dohmann invites our attention to that, and to the recommendation in the report which followed it:

   For my part, I would accept that if we were considering a statutory provision which enacted that recommendation Miss Dohmann would be in a much stronger position, but the statutory provision with which we are concerned does not say that the right of the plaintiff to sue shall be deemed to have first accrued at the time when he discovered the defendant's fraud or could, with reasonable diligence, have discovered it. Furthermore, the Law Revision Committee's report seems to me to make it abundantly clear that Miss Dohmann cannot really maintain the argument which apparently commended itself to Saville J, namely that prior to the intervention of statute those in the position of her clients enjoyed equitable rights which the statutes should not be interpreted as having taken away. The fact is that prior to the intervention of statute the position may not have been entirely clear, but generally the rule seems to have been that once time began to run later concealment of the cause of action by the defendant would not interrupt it.

(4) The Limitation Act 1939
   Instead of following the recommendations of the committee s 26 of the Limitation Act 1939 provided:

There is then a proviso which for present purposes is not relevant. In Preston and Newsom Limitation of Actions (1st edn, 1940) p 361 the comment is made in relation to s 26 of the 1939 Act-

Mr Hunter submits that is correct, but Miss Dohmann invites our attention to Beaman v ARTS Ltd [1949] 1 All ER 465, [1949] 1 KB 550. That case concerned a bailee who during the 1939-45 war whilst the plaintiff was abroad disposed of her goods and more than six years later she commenced proceedings for conversion. It was held in relation to s 26 that the cause of action was not based on fraud, but the Court of Appeal held that the conduct of the defendant did amount to a fraudulent concealment of the cause of action for the purposes of s 26(b). The court regarded as relevant the bailee's failure to tell the plaintiff what they had done but there was also concealment coterminous with the conversion, so, as I read the judgments, they proceed upon the basis that until the plaintiff learnt what had happened time had not started to run. For504 example, Lord Greene MR said ([1949] 1 All ER 465 at 470, [1949] 1 KB 550 at 566):

Similarly Singleton LJ said ([1949] 1 All ER 465 at 472, [1949] 1 KB 550 at 571):

   In Kitchen v Royal Air Forces Association [1958] 2 All ER 241, [1958] 1 WLR 563 the plaintiff succeeded against her former solicitor, who, following the death of her husband, had failed to advise her of her potential claim under the Fatal Accidents Acts and of an offer made in October 1946 by the electricity company involved. The concealment of the offer was held to amount to both a breach of duty and a fraudulent concealment for the purposes of s 26(b) of the 1939 Act, so the claim was not statute-barred. The position taken by the Court of Appeal in relation to the failure to advise in relation to the potential claim is far less clear, and in the circumstances was not critical, so I cannot accept Miss Dohmann's submission that Kitchen's case is authority for the proposition that where there is concealment by a defendant sometime after the cause of action has accrued s 26(b) applies. As Sir Thomas Bingham MR has pointed out in his judgment in this case, in Kitchen's case that issue did not have to be argued.
   In Cartledge v E Jopling & Sons Ltd [1963] 1 All ER 341, [1963] AC 748 the House of Lords considered an appeal by plaintiffs who developed pneumoconiosis. The plaintiffs submitted that time should be held only to have run against them from when they knew or could have reasonably be expected to have known of their condition, but Lord Pearce said ([1963] 1 All ER 341 at 351, [1963] AC 758 at 782-783):

Turning to s 26 of the 1939 Act, he said that it created 'a special exception' and continued:

505

The clear implication, as it seems to me, is that in the context of the present case time did run from the date of accrual of the cause of action.
   Archer v Moss, Applegate v Moss [1971] 1 All ER 747, [1971] 1 QB 406 was a case concerning houses built on unsatisfactory foundations which were then covered. Lord Denning MR said that s 26(b) applied 'whenever the conduct of the defendant or his agent has been such as to hide from the plaintiff the existence of his right of action, in such circumstances that it would be inequitable to allow the defendant to rely on the lapse of time as a bar to the claim' (see [1971] 1 All ER 747 at 750, [1971] 1 QB 406 at 413). As a general proposition that is no doubt correct, but it does not deal directly with the problem we have to resolve. That brings me to what was said obiter by Megarry V-C when giving judgment in Tito v Waddell (No 2) [1977] 3 All ER 129 at 245, [1977] Ch 106 at 245:

Miss Dohmann submits that Megarry V-C's observations did not and do not represent the law, but if so it is surprising that when Parliament enacted s 26 of the 1939 Act with some modifications as s 32 of the Limitation Act 1980 it did not clarify the position.

(5) Since the 1980 Act
   In August 1980 another Law Reform Committee was asked 'to consider the law relating to-(i) the accrual of the cause of action, and (ii) limitation, in negligence cases involving latent defects (other than latent disease or injury to the person) and to make recommendations'. It reported in 1984 (Cmnd 9390) and Parliament then enacted the Latent Damage Act 1986, which introduced into the 1980 Act ss 14A and 14B. The result is that in an action for damages for negligence other than for personal injuries the starting date for reckoning the period of limitation is the earliest date on which the plaintiff or any person in whom the cause of action vested before him had both the knowledge required for bringing the action and the right to bring it. If, as I believe, the law still is as Megarry V-C found it to be then some deserving plaintiffs who cannot take advantage of s 32(1)(b) will be able to take advantage of s 14A.
   The last two authorities on which Miss Dohmann relied were UBAF Ltd v European American Banking Corp [1984] 2 All ER 226, [1984] QB 713 and Westlake v Bracknell DC (1987) 19 HLR 375. In the UBAF Ltd case [1984] 2 All ER 226 at 236, [1984] QB 713 at 728 the Court of Appeal said that if it was within the plaintiff's knowledge whilst they were carrying out their fiduciary duties that the security was inadequate the failure to say so 'would constitute a continuing breach of its fiduciary duty'. If the breach of fiduciary duty continued the problem which we have to consider could not arise. In Westlake's case P J Cox QC, sitting as a deputy judge of the High Court, held amongst other things that when a negligent surveyor later sought to reassure house purchasers his conduct amounted to deliberate concealment of facts relevant to the plaintiffs' right of action such as to enable the plaintiffs to invoke s 32 of the 1980 Act. Clearly that part of the decision, if correct, is of considerable assistance to Miss Dohmann, but in my judgment it is not correct, and it is right to point out that506 there is nothing in the report to suggest that the issue was explored in the way that it has been explored before us.

(6) Conclusion
   Having now considered in addition to the wording of the 1980 Act the history of the legislation and most of the authorities to which we were referred, I am satisfied that Mr Hunter is right in his submission that reliance cannot be replaced on s 32(1)(b) of the 1980 Act where the deliberate concealment relied upon occurred an appreciable time after the cause of action arose. In other words if time has already begun to run the supervening fraudulent concealment will not start it running again.
   I would therefore, like Sir Thomas Bingham MR, allow this appeal