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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Del Castillo v Coubrough [2001] EWCA Civ 2050 (20 December 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/2050.html Cite as: [2001] EWCA Civ 2050

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHANCERY DIVISION
(MR JUSTICE RIMER)

		Royal Courts of Justice Strand London WC2 Thursday, 20th December 2001

Thursday, 20th December 2001

1. LORD JUSTICE ALDOUS: This is an application for permission to appeal the order of Rimer J sitting in the Chancery Division, dated 7th September 2001. The order declared that the applicant's claim was statute barred pursuant to the Limitation Act 1980 and therefore dismissed the claim.
2. The background facts are summarised in full in the judgment of Rimer J. In brief this is a claim by the applicant against the respondent, Miss Louise Coubrough, for breach of contract, negligence, misrepresentation and undue influence.
3. The defendant was an assistant solicitor with a firm of solicitors called Hodge Jones & Allan, and acted for the applicant in her ancillary relief proceedings from April 1993 onwards. Those proceedings were concluded on 22nd February 1994 when District Judge Waller approved the terms of the settlement agreed between the applicant and her former husband, and made a consent order. Following the making of the consent order the defendant wrote to the applicant and advised her that now the case was concluded if she wanted the solicitor's file, she could have it, or otherwise it could be stored for her. The applicant agreed that it should be stored because she had no reason to ask for it at that stage.
4. However, the applicant has made it clear that she was dissatisfied with the consent order right from the start. She did not regard it as a fair one, and considered that more generous provision should have been made for her. She considered that the defendant had exerted undue pressure on her to agree to the settlement. In support she showed me a letter, dated 1994, which warned her that there was a duty to inform the Legal Aid Board in respect of any unreasonable contact.
5. The judge held that from the start the applicant wanted to have the order set aside or reversed on appeal and that was her position. Her evidence, as recorded by the judge, was that sometime after seeing a Mrs Pereira, an artist friend of hers, who told her that she thought that the provision made for her by the consent order was unfair and that the matter could be re-opened, she went in 1998 and asked for and obtained the file from the solicitors. She looked at that file and came to the conclusion that the defendant had been in breach of contract and negligent, and therefore started these proceedings in 1998.
6. By her defence the defendant alleged that the claim was statute barred, having regard to the Statute of Limitations. On 15th February 2001, she filed an application to have the action dismissed on the grounds, amongst others, that it was statute barred.
7. The applicant submitted that her claim was not statute barred because, amongst other things, relevant facts were concealed from her which were not discovered until she obtained the file in June 1998. Therefore her position was covered by section 32 of the Limitation Act.
8. The defendant's application came before Master Bowman on 15th March 2001. He ordered that it should be adjourned to enable a preliminary issue to be heard as to whether the claim was statute barred. The trial of that preliminary point came before Rimer J. He heard evidence from the applicant and the defendant. The applicant appeared in person and cross-examined the defendant. It seems from the judgment that the cross-examination was directed to the merits of the case, not the issue before the judge, which was whether the action was statute barred.
9. The judge did not go into the merits of the case. He accepted a submission of Mr Cross, counsel who appeared on behalf of the defendant, that it was right to presume the merits against the defendant. The judge said this at page 16 of his judgment:

"For the purposes only of the present preliminary issue, Mr Cross accepted that I should presume that the defendant did handle the claimant's litigation negligently in the manner alleged by the claimant. I understood him also to accept that I could and should presume that the claimant had no actual knowledge of the facts founding a cause of action until 1998, when she first saw the file. That is, of course, what the claimant asserts; and she says that it follows that the relevant starting date for the purposes of section 14A(5) was 1998, so that the issue of the claim form within the following three years was within the period permitted by section 14(A)(b)."

10. It is clear that the judge assumed negligence, misrepresentation and undue influence that was alleged. There is therefore absolutely no point in going into the merits of the case.
11. The applicant has appeared before me today and has taken me through the correspondence which is appended to her first affidavit, which was sworn on 19th December 2001. As far as I could see the only purpose of doing so was to stress the rightness of her case that there was a negligent breach of contract. But that of course is to be presumed at this stage of the proceedings and was presumed by the judge.
12. The judge also held as a fact:

"I make clear, however, that, at the end of the defendant's cross-examination, I was anyway left in no doubt at all that she had at no time concealed - in the sense of consciously - from the claimant anything relevant to her case."

13. The judge continued:

"But if the defendant did make any relevant mistakes, I find there was no time when she was aware that she might have done so and then deliberately and consciously concealed them from the claimant. Perhaps somewhat remarkably, bearing in mind the primary purpose of the cross-examination, the claimant at no point even suggested to the defendant that she might have consciously concealed anything from her."

14. Against that background of fact the judge came to the issue of limitation. The judge agreed with the submissions of counsel for the defendant, and held that the applicant might reasonably have expected to obtain the file promptly after the making of the consent order in 1994. It must be remembered that the file was offered to her at the conclusion of the ancillary provisions dispute.
15. The judge also held under section 14A(10) of the 1980 Act that the claimant had constructive knowledge of the contents of the file within a reasonable period after making of the consent order with the result that the three-year period provided by section 14A(4)(b) of the 1980 Act would have expired well within the currency of the six-year period provided by section 14A(4)(a). The claim form had therefore been issued after the expiry of the six-year period provided for by section 14A(4)(a) of the 1980 Act, and the claim was therefore statute barred.
16. The applicant had argued before the judge that the defendant had deliberately concealed facts relevant to her right of action and therefore section 32(1)(b) of the Act applied. It followed that the limitation period should not have begun to run until she discovered the concealment, that is to say the date on which she subsequently obtained possession of the file.
17. The judge held that section 32(1) of the 1980 Act did not assist the applicant. She should and could have reasonably obtained the file after the consent order and within a period, expiring well before 1st December 1994. Therefore she could with reasonable diligence have discovered the alleged concealment by that date.
18. The applicant's grounds of appeal are essentially on three matters. First, it is said that the judge failed to apply section 32 of the 1980 Act and failed to follow the authority of Brocklesby v Armitage & Guest [2001] 1 All ER; second, that there was no evidence to support his finding that she could and should have obtained the file earlier; and thirdly that he failed to follow Stevens v Riverside Health Authority, the Times 29th November 1989.
19. As to the first ground of appeal it is clear from the judgment that the judge did consider and apply section 32 of the 1980 Act. He said this, after citing the relevant part of the section:

"I have referred above to the decision in the Brocklesby case and to the other cases which have since followed it, being decisions concerned with the true interpretation of these provisions. I find it unnecessary to refer further to these cases for this short reason. There is no suggestion that the claimant did not have all the facts relevant to her right of action by the time she had obtained possession of and had read the file. I have found that she could and should reasonably have obtained the file promptly after the consent order and within a period which I would regard as expiring well before 1st December 1994, which was six years before the commencement of the action. That being so, even if there had been any relevant concealment before then, she could, with 'reasonable diligence' (see section 32(1)(b)), anyway have discovered by that date all the facts she needed to discover, including the allegedly concealed facts. I add that the defendant explained in her evidence that, following the making of the consent order, she needed to retain the file for at least some time for the purpose of taxing her costs, but she said that during this period she could have provided copies of all documents in it to the claimant, and I accept that she could. This consideration would not, therefore, as I find, have held up the obtaining by the claimant of all the material that during the immediate aftermath of the proceedings I find she ought reasonably to have asked for."

20. In my view on the findings of fact of the judge, this ground of appeal stands no real chance of success.
21. With regard to the second ground of appeal, the finding by the judge that the applicant could and should have reasonably obtained the file promptly after the consent order was a finding of fact made by a trial judge who had heard the evidence. There is no real chance of this court overturning that finding. It was an issue on which the hearing before the judge turned to a substantial extent and a large section of the judgment is made up of the judge's reasoning on the issue. In particular, the judge relied on the fact that from the outset the application was dissatisfied with the consent order and he advised that she had been given.
22. As to the third ground, namely the alleged failure of the judge to follow Stevenson v Riverside Health Authorities, in my view he cannot be criticised. The facts of that case are not directly comparable to the present. In that case expert knowledge was needed to assist the claimant in obtaining the relevant knowledge. In this case the judge held that the relevant knowledge required by the claimant was not knowledge which could only have been acquired with the assistance of expert advice.
23. Second, in the Stevenson v Riverside Health Authority the claimant from the outset had taken adequate steps to try and establish knowledge of the cause of her injury, including consulting doctors and solicitors. This can be contrasted with the present case where the applicant did nothing for over two years until October 1996, despite the fact that she had from the outset been dissatisfied with the settlement and had been offered the file in 1994.
24. In her submissions to me today, the applicant has taken me through her affidavit and the letters that are appended to them. They have no bearing upon the issue that was before the judge, namely the preliminary issue as to whether the action was statute barred. They go to the merits of her claim. It may be that there was negligence and breach of contract, but the judge presumed that in her favour for the purpose of the hearing. The crucial question before the judge was whether the action was statute barred. The judge held that it was. It was brought out of time, after six years, and in the circumstances he concluded that the case had to be dismissed.
(Application refused; no order for costs).