The courts have reaffirmed their willingness to set aside limitation if there has been deliberate concealment on the part of the defendant in a recently decided application for summary judgement. The decision is also of interest as it involved non-compliant cladding on a residential tower block.
The case was RG Securities (No 2) Ltd v Allianz Global Corporate and Specialty CE, Building Lifeplans Ltd and R Maskell Ltd. The cladding was a Trespa system and the façade also contains aluminium composite sections. It is alleged that the result is even more combustible than the Grenfell Tower.
The claimant purchased the property in 2015. The property had been refurbished between 2006 and 2009 and the present cladding was installed as part of the refurbishment works. The claimant substantially brought its claim as a breach of section 1(1) of the Defective Premises Act 1972, and the defendant applied for summary judgement on the basis that more than 6 years had elapsed since the completion of the works.
However the claimant contended that the defendant was aware that the works did not have a Building Regulation Completion Certificate and concealed this fact. As such the claimants argued that limitation only began running in 2018 when it discovered this situation.
Section 32 (1)(b) of the Limitation Act 1980 states that if, “…any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant… then the period of limitation shall not begin to run until the plaintiff has discovered the fraud or concealment".
The court dismissed the application for summary judgement, on the basis that the claimant had an arguable case. This does not mean that the claimant has won its case yet on limitation as the parties are now proceeding to the next stages of their litigation, but the court was satisfied that the claimant still had a case to argue, and in doing so, re-affirmed that deliberate concealment will nullify the original limitation defence.
Perhaps counter-intuitively, this is the case even if limitation expired before the concealment took place.
This limitation position is very relevant in the wider national context of remediation of non-compliant cladding, and the actions which are being contemplated against relevant contractors and professionals involved in the original projects. This context also includes the money made available by government to assist in cladding remediation, but which comes with a requirement to pursue relevant parties for recovery provided that that the chances of success are reasonable and the requirement to pursue others is therefore justified.
It remains to be seen whether the courts will take a wider or narrower view of what “deliberate concealment” actually entails in these situations, and practitioners may recall the case of Brocklesby v Armitage & Guest (2001), where for the months prior to Brocklesby being over turned by Cave v Robinson, Jarvis & Rolf (2002), a much wider interpretation of concealment significantly undermined limitation.