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Limitation and ‘deliberate concealment’

In BPC Hotels Ltd and Others v Brooke North (a firm) the Claimants alleged that their former solicitors (“BN”) had, for the purposes of section 32 of the Limitation Act 1980 ( ‘Section 32), ‘deliberately concealed’ incriminating documents, which were said to go to support allegations of professional negligence against them. In subsequently rejecting the claim the Court found no evidence to substantiate the allegations of a cover-up and ruled that summary judgment should be granted in BN’s favour. Joshua Beavers considers the main points which arise from this judgment, which will be of particular interest to defendant solicitors and their professional indemnity insurers.

Facts

In 1998, the Claimants, Mr & Mrs Chandra and their company, BPC Hotels Ltd (‘BPC’), retained BN to advise in relation to their purchase of a four star hotel in Manchester. Funding was obtained from RBS, and a building contract was concluded in April 2001, with completion of the development set for July 2002.

In May 2003 BPC were required to pay further funds to the contractor, however as insufficient funds remained under the existing loan facility and acting on the advice they say they were given by BN, on 20 May 2003 the Claimants obtained further funds from RBS after providing personal guarantees.

Subsequently in August 2003, RBS alleged BPC were in breach of the building contract and they demanded full repayment of the loan. The Claimants were unable to meet these demands and BPC was placed into administrative receivership. In April 2004 the receivers sold the hotel for £13.5 million, after which RBS pursued Mr & Mrs Chandra for consequential losses in the region of £4 million, including bringing proceedings to repossess their home. 

The Existing Claim

In May 2009 the Claimants issued court proceedings against BN alleging negligence in connection with the advice provided by them on  20th May 2003 in relation to the further funding. The claim proceeded very slowly, with witness statements not being exchanged until September 2014.

The New Claim

In November 2014, the Claimants issued new proceedings against BN in relation to further advice given in April 2001 and May 2003 respectively. The Claimants argued that their allegations were not time-barred, because BN had, for the purposes of section.32, "deliberately concealed" their breach of duty in conspiring to destroy or remove documents.

The Claimants alleged that they only became aware that documents had been removed following the exchange of witness statements in the Existing Claim in September 2014.

BN applied for summary judgment in the New Claim.

Findings

For the purposes of Section 32, “deliberate concealment” could be either (i) BN taking steps to conceal its breach of duty, or (ii) BN deliberately breaching its duty in circumstances where the breach is unlikely to be discovered for some time. The issue to be determined for summary judgment was therefore whether the Claimants’ allegations of deliberate concealment had “merits beyond the fanciful”.

Mr Justice Edwards-Stuart, sitting in the Technology and Construction Court, found no evidence to substantiate the Claimants’ claim. Whilst he noted the seriousness of the Claimants’ allegations he heldThere is not a single allegation made by the claimants in the particulars of claim in relation to deliberate concealment that can be categorised as anything but wishful thinking,” and that therefore, the claimants had not established anything approaching a case with a realistic prospect of success.

Whilst the burden of proof on the Claimants was on the balance of probabilities, “cogent evidence” was required to prove that BN had conspired to remove traces of the knowledge that was available and/or had deliberately breached their duty of care, and on the facts of the case there was no prospect whatsoever of there being any such evidence. The Claimants’ new claims were deemed hopeless and accordingly summary judgment was granted for BN. 

Comments

This is a helpful judgment which reinforces the need for clear cogent evidence when advancing serious allegations against a party, particularly where allegations of fraud are involved. The decision highlights the need for claimants to have their case properly prepared and also underlines the importance of considering limitation periods in defending  accusations of negligence.

It should be noted that the Existing Claim is ongoing. It therefore remains to be seen whether the advice given by the Defendant (at least in May 2003 in relation to the further funding) was in breach of duty and, if so, what loss this may have caused.

Contact

For further information please contact Joshua Beavers on 0117 301 7391.

By Joshua Beavers

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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