Win for PPI claimant: key guidance on s.32 of the Limitation Act
In Canada Square Operations Ltd v Potter [2021] EWCA Civ 339 Mrs Potter brought a claim under ss.140A-D of the Consumer Credit Act 1974 relating to a loan to pay for a PPI policy. The loan ran from 2006 to 2010 and her claim was not brought until December 2018, that is outside of the 6 year limitation period. Mrs Potter relied on s.32(1)(b) and s.32(2) of the Limitation Act 1980 which postpone the limitation period where any fact relevant to the claimant’s right of action has been deliberately concealed by the defendant, including where the defendant has deliberately committed a breach of duty. Mrs Potter’s complaint was that she had never been told the fact or amount of the commission (95.2%) which the defendant bank had taken on the loan for the PPI policy.
The Court of Appeal (The Chancellor, Males LJ and Rose LJ) had to resolve questions as to: (a) the meaning of ‘breach of duty’ within the terms of s.32(2); (b) the circumstances in which a failure to disclose can amount to concealment; (c) the mental element required by the expressions “deliberately concealed” and “deliberate commission of a breach of duty”; (d) the application of the Act to the facts of this case.
The Court of Appeal held that ‘breach of duty’ was apt to cover the claim under ss.140A-D of the 1974 Act as it was the obverse of ‘right of action’. It was not necessary to establish a pre-existing legal duty to disclose in order for D to have concealed a fact and it sufficed here that D was obliged by s.140A to act fairly for its non-disclosure to amount to concealment. Deliberate breach of duty and deliberate concealment were established where D was reckless, as the bank was here.
Accordingly, the Court of Appeal held that Mrs Potter was entitled to rely on both s.32(1)(b) simpliciter and s.32(2) and her claim against the bank was not time-barred.
Robert Weir QC and Jonathan Butters acted for the successful claimant, instructed by HD Law Ltd.
To read the full judgment, please click here.
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