Section 32 is an infrequently used part of the Limitation Act 1980, but one from time to time which may have application within the Industrial Disease setting. In Goldtrail Travel v Grumbridge  EWHC 1757 (Ch), the application of that section was considered by Chief Master Marsh.
In this case, a commercial dispute, the Claimant had in fact previously brought a claim against a number of other parties and been successful against them. The Claimant then brought a separate claim (which ordinarily would have been beyond the limitation period) against a new party based on the same issues, and sought to rely upon section 32 in order to allow the claim to be pursued.
Section 32 of the Limitation Act 1980 sets out:
Postponement of limitation period in case of fraud, concealment or mistake.
(1) Subject to subsection (3) below, where in the case of any action for which a period of limitation is prescribed by this Act, either—
(a) the action is based upon the fraud of the defendant; or
(b) any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant; or
(c) the action is for relief from the consequences of a mistake;
the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.
(2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.
In Goldtrail the defendants made an application to strike the claim out on the basis of it being out of time, arguing that there was no recourse to section 32. The Claimant relied upon section 32 (1)(b) only and so not section 32 (1)(a).
One of the criticisms of the Claimant in this case was that it had failed to set out its case on section 32. There was no evidence provided by the Claimant as to what the concealment was, or why the claimant was unable to plead his case at an earlier stage.
The ‘statement of claim’ test
The starting point is to consider what is now known as the ‘statement of claim’ test. This test was set out by Sir Terence Etherton C (with whom Richards and Patten LJJ agreed) in Arcadia Group Brands Ltd v Visa Inc  EWCA Civ 883 summarised at :
“… the following principles [are] applicable …: (1) a ‘fact relevant to the plaintiff’s right of action’ within section 32(1)(b) is a fact without which the cause of action is incomplete; (2) facts which merely improve prospects of success are not facts relevant to the claimant’s right of action; (3) facts bearing on a matter which is not a necessary ingredient of the cause of action but which may provide a defence are not facts relevant to the claimant’s right of action.”
“… the purpose of section 32 (1)(b) appears to be designed to cater for the case where, because of deliberate concealment, the claimant lacks sufficient information to plead a complete cause of action (the so-called “statement of claim” test).”
The Judgment also sets out further observations by Rix LJ [at 323]:
“In this connection it is clear from authority that the statutory words “any fact relevant to a plaintiff’s right of action” are to be given a narrow rather than a wide interpretation . [emphasis added] Thus in Johnson v Chief Constable of Surrey (CA, unreported, 19 October 1992) where the claim was in false imprisonment and the police had deliberately concealed facts relevant to the absence of reasonable cause, this court accepted the defendant’s submission that “the relevant fact must be a fact without which the cause of action is incomplete”, contrasting a fact relevant to an action and to a right of action (5A, 6C). [emphasis in the original] Thus Rose LJ said “Facts which improve prospects of success are not, it seems to me, facts relevant to his right of action” (at 6E). He accepted that the interpretation was a narrow one (at 6G). Russell LJ agreed, saying (at 7E): “Accordingly, whilst I acknowledge that the new facts might make the plaintiff’s case stronger or his right to damages more readily capable of proof they do not in my view bite upon the “right of action” itself. And Neill LJ emphasised that although absence of reasonable cause was an element in the tort of false imprisonment, the “gist of the action” is in the imprisonment itself, which establishes a prima facie case and puts the burden of proving justification on the defendant. Therefore the statutory words “must mean any fact which the plaintiff has to prove to establish a prima facie case” (at 8E/H).
and also by Buxton LJ at :
“… as Rix LJ emphasises, Johnson stands as authority for the proposition that what must be concealed is something essential to complete the cause of action. It is not enough that evidence that might enhance the claim is concealed, provided that the claim can be properly pleaded without it. The court therefore has to look for the gist of the cause of action that is asserted , to see if that was available to the claimant without knowledge of the concealed material.” [emphasis added]
Although not important for present purposes, the claim was not allowed to continue. The Claimant had failed to show that there are any facts which were not available to it at the time of bringing the action against the earlier parties – an action which was in time. Therefore the Claimant’s claim was dismissed.
Application for industrial disease cases
In a noise-induced hearing loss case, simply failing to disclose a noise survey which would show that the defendant was in breach of duty, would likely not fall under section 32. A claimant would be aware in any case that this was a noisy environment. He/ she would sufficient to plead his/ her case even if the noise survey would be useful to prove the noise levels at a later stage.
However, in an asbestos case an individual might have been deliberately told that the particular material he was using did not contain asbestos. However, if it later transpired that the material used did contain asbestos, this might fall within section 32.
Of course, for commercial cases with the strict six-year period of limitation section 32 may be of more importance than for Industrial Disease cases. Claimants in Industrial disease cases, of course, also have recourse to section 33. There might be some failing to which falls short of a deliberate concealment for the purposes of section 32. However, it could be something to consider under section 33. It may well, also, be the case that without such knowledge, a claimant’s date of knowledge would be affected.
Section 32 of the Limitation Act 1980 is never likely to be a major or a frequent feature of Industrial Disease practice. However, it may be a potentially useful (and interesting) part of the Limitation Act. It may come up from time to time and so some awareness of this section is therefore of use to the practitioner. The Judgment in Goldtrail sets out the relevant caselaw helpfully.
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