Effect of Attempted Concealment

Ezekiel v Lehrer (Ch D TLR 4 April)

The defendant applied under CPR Part 24 to dismiss the claimant’s claim against him for damages for negligence as his solicitor in the execution of a second legal charge. The defendant had applied for the summary dismissal on the basis that it was time-barred. The claimant sought to disapply the limitation period under s32(1)(b) of the Limitation Act 1980, alleging that the defendant had deliberately concealed relevant facts from him. However, the claimant’s own account of events was that he had initiated a telephone conversation with the defendant in order to refresh his own recollection of the instructions he had given him and he was therefore in possession of all of the facts relevant to his cause of action, that is, his instructions to the defendant and knowledge of the defendant’s breach of duty within a few weeks of the breach. Even accepting the claimant’s allegation that in a subsequent telephone conversation the defendant attempted deliberately to conceal one or more facts relevant to his cause of action and somehow expunged from the claimant’s recollection his instructions to the defendant, it was clear from the claimant’s own description of events that he could, with reasonable diligence, have quickly discovered that he had been mislead. The claimant had no reasonable prospect of bringing his claim within s32(1)(b).