08
Dec 2023

Unravelling Deliberate Concealment: Canada Square Operations Ltd v Potter [2023] UKSC 41

Introduction

All claims must be brought within a time limit known as a limitation period. In the case of contract claims, this is usually 6 years from the date of the breach or 12 years where a deed is concerned. This can be extended in certain cases under Section 32 Limitation Act 1980 (“The Act”). This aims to avoid the unjust scenario where a claimant is prevented from bringing a claim, which they may not have discovered they had, due to the defendant’s concealment. The limitation period would then run when claimant discovers the concealment or could have done with reasonable diligence.

This article will focus on the case of Canada Square Operations Ltd v Potter [2023] UKSC 41 (“Canada v Potter”) in which a fact relevant to the claimant’s right of action had been deliberately concealed by the defendant under S32 of The Act.

Canada v Potter is a significant legal development to The Act, in which the Supreme Court was asked to clarify the meaning of the words “deliberately” and “concealed”. In reference to the term “concealed” the Supreme Court held that a fact will have been concealed if the defendant has kept it secret from the claimant either by taking active steps to hide it or by failing to disclose it. This is contrary to the previous Court of Appeal authority as the claimant does not need to establish that the defendant was under a legal, moral or social duty to disclose the fact nor do they need to show that the defendant knew the fact was relevant to the claimant’s right of action. The requirement is that the defendant deliberately ensures that the claimant doesn’t know about the fact in question and so cannot bring proceedings within the ordinary time limit.

“Deliberately” the Supreme Court held that the defendant’s concealment of a relevant fact will be deliberate if the defendant intended to conceal the fact in question. The Supreme Court rejected the Court of Appeal’s finding that “deliberately” can also mean “recklessly” in this context.

Case Background and Core Facts

On 14 December 2018, Mrs Potter issued a claim against Canada Square, seeking to recover the amounts she had paid to Canada Square in respect of a PPI Policy, plus interest. Mrs Potter claimed that Canada Square’s failure to disclose the substantial commission charged on the PPI Policy rendered the relationship between them “unfair” within the meaning of the relevant authority. Canada Square argued that it was too late for Mrs Potter to bring her claim, because section 9 of The Act imposed a 6-year limitation period which had long expired. Relying on section 32 of The Act, Mrs Potter contended that her claim was not time barred because the limitation period did not start to run until she found out about the commission after taking legal advice in November 2018.

Supreme Court Decision

It was noted that Mrs. Potter did not establish that Canada Square knew or intended to breach a duty, preventing her from succeeding under section 32(2) of The Act. However, The Supreme Court ruled in favour of Mrs. Potter, holding that deliberate concealment had occurred under section 32(1)(b) of The Act.

Conclusion

The decision provides a clear framework for when dealing with allegations of deliberate concealment under The Act. By affirming the straightforward interpretation of “deliberate,” the Supreme Court have clarified the definition and made The Act easier to use.

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