Case No: A3/2001/0782 CHANI
Neutral Citation Number: [2002] EWCA Civ 16 
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHANCERY DIVISION
Mr Justice Evans-Lombe
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 30th January 2002

B e f o r e :

LORD JUSTICE WARD
LORD JUSTICE JONATHAN PARKER
and 
MR JUSTICE HARRISON
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	FREDDY JACOB EZEKIEL	Appellant	
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	ABRAHAM MAYIR LEHRER	Respondent	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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Mr Michael Driscoll Q.C. and Mr Luke Norbury (instructed by Messrs Landons for the Appellant)
Mr Michael Pooles Q.C. and Mr Philip Moser (instructed by Messrs Pinsent Curtis Biddle for the Respondent)

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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Ward : 

1.	On 18th March 1999 the appellant Mr Freddy Jacob Ezekiel, made a claim against his former solicitor, the respondent Mr Abraham Mayir Lehrer, for damages for professional negligence.  His cause of action had accrued on 28th September 1990, eight and a half years previously.  Not surprisingly the defendant alleged it was statute-barred.  Oh no, said Mr Ezekiel, asserting that relevant facts had been deliberately concealed from him by the defendant and were not discovered until March 1996 so that time only began to run from that date pursuant to s. 32 of the Limitation Act 1980.  Although the trial had been listed to start on 30th April 2001, Evans-Lombe J. summarily dismissed the claim on 21st March 2001 pursuant to CPR Rule 24.2 but only awarded part of the costs to the defendant.  Both appeal to us.
2.	The question for decision in Mr Ezekiel’s appeal could be framed in this way:  is one to be treated as having knowledge of a fact which one has forgotten about eleven weeks later and does not remember again until some five years after that?  Untrammelled by great learning from departments of psychology and philosophy, the common-sense answer would be, “yes, of course”.  That might be the end of this appeal but, alas, it cannot be the end of the judgment.  I must do more to set out the facts.
3.	Mr Ezekiel is an engineer and inventor and businessman.  He was keen to develop a device known as the “Nursery Angel”.  When a baby in its cot began to cry a sound activated motor would rock the baby’s cradle, play the soothing sound of the swish of the sea and a lullaby in tandem if necessary to soothe and settle the child.  His invention, the idea for which occurred to him when he suffered a heart attack in January 1981, was to incorporate a sensitive vibration sensor which could register even the faint heartbeat of a baby which, if the heartbeat became too irregular or ceased, could set off an alarm.  He believed it could be extremely useful in preventing cot deaths.  He began to collaborate with a Mr Ezekiel Simon through his company Simon Technologies Ltd. (which I shall call either “STL” or “the old company”).  Mr Ezekiel’s son-in-law, Mr Shina, became a director of the company.
4.	The appellant arranged finance for the old company with his bank, the Royal Bank of Scotland (“RBS”).  The bank took a debenture over the company’s undertaking to secure the overdraft facilities granted to it.  During 1989 there were further dealings with the bank and Mr Ezekiel says that it was agreed that he would charge 16 Nant Road N.W.2. (“the property”) to enable a £50,000 loan facility to be made available to his nephew.  He would also charge properties in Portland Road, South Norwood, and Princes Road, Buckhurst Hill, to secure the advance of an additional £100,000 to the old company.  He says that the bank by mistake required him to charge the property to support the borrowings of the old company, not the borrowings of nephew Daniel.  On the claimant’s account, there was considerable confusion.
5.	Be that as it may the matters material to the appeal took place in September 1990.  The appellant alleges that he had been engaged in discussion with the bank at which it was agreed that the old company was no longer financially viable and should be put into receivership;  that a new company of the same name (Simon Technologies Ltd.) (which I shall call “the new company”) would be formed.  The bank would provide facilities to the new company in the first place to enable it to purchase from the receiver the equipment and assets required for the Nursery Angel project to be continued and a further advance of £250,000 to enable the new company to continue that project.  The security for these advances would be a charge over the property, 16 Nant Road, and a charge over a property known as Trutex Mill in Bury, Lancashire.  He says that these arrangements were set out in a letter dated 12th September 1990 addressed to the bank and handed over to the bank on that day when the arrangement was confirmed.  After the meeting with the bank the appellant’s son prepared a letter and faxed it to Mr Shina who signed it and faxed it to the bank that same day and faxed a signed copy to the appellant.  In that letter Mr Shina wrote as a director of the old company to confirm that it was in order for the bank to put the company into receivership.
6.	The following day, 13th September 1990, Mr Ezekiel went to see Mr Lehrer.  Mr Lehrer had been acting for him in connection with both business and family matters since about 1977, according to Mr Ezekiel.  I recount what happened from his first witness statement made on 7th February 2001.  The account in the second witness statement is similar but less full.
“80.	On 13th September 1990 I went to Avi Lehrer’s offices.  I did so for the purpose of signing a second charge over the property pursuant to my agreement with the Bank for the facility for the new company and explaining the arrangements to the defendant.  At the meeting, I told the defendant of the agreement I had reached with Mr Jackman [the Bank Manager] that a new charge was to be executed to be used for a new company to be known as Simon Technologies Ltd.  I also explained that the charge was to be held in escrow pending my authorising its release upon the formation of the new company and that new company’s acceptance of the Bank’s facility.
81.	At the defendant’s offices, I signed a charge over the Property (“the second charge”) in favour of the Bank so as to support the facilities of my new company which was to be known as Simon Technologies Ltd.  A copy of the second charge is exhibited ...
82.	The defendant had searched among his files and produced a charge form for me to sign.  He asked me if there was to be a facility letter and I told him it would be issued when the new company was formed.  We discussed the availability of the existing name for the new company.  I told him that the proposed receiver had said to me that I could have this name.  The defendant said that if the name on the charge form had to be amended the charge could be initialled.  He said he would keep the signed charge form on file until it was to be released.”
7.	The claimant’s case as to what happened next was pleaded in the particulars of claim as follows:-
“27.	On 13th September 1990 and pursuant to the said agreement with the Bank on 12th September, the plaintiff went to the defendant’s offices and signed a charge (“the second charge”) in favour of RBS, expressed to be security for the borrowings of Simon Technologies Ltd.  The plaintiff signed the second charge intending for it to be security for the new company (to be known at Simon Technologies Ltd.) and not STL (which was about to be put into receivership).
28.	At this meeting on 13th September 1990, the plaintiff informed the defendant that the second charge was to be used for a new company and was to be held in escrow pending the plaintiff authorising its release upon the formation of the new company and that company’s acceptance of the facility [as arranged on 12th September].
29.	Despite having been given clear instructions as to the basis on which the plaintiff was to sign the second charge (as to which see paragraph 28 above) the defendant proceeded to send the first [the charge to support the borrowings of Daniel] and second charges to H.M. Land Registry for registration.  The first and second charges were registered at H.M. Land Registry on 1st October 1990.”  (My emphasis added).
8.	The appellant confirmed those allegations in his first witness statement saying:-
“13.	The defendant’s actions [in registering the second charge] were a clear breach of my instructions to him.  I can only believe that the defendant failed properly to record those instructions and became confused as to which charge should be sent off for registration and which charge should be held in escrow.  Furthermore, he failed to appreciate (despite everything I told him) or to keep in mind the fact that the second charge was to secure the borrowings of a new company, not STL [the old company].  In any event, I never authorised the defendant to send off the second charge for registration since he was to hold the charge in escrow pending events that never occurred.”  (My emphasis added).
9.	So there we have it:  “Despite having been given clear instructions”, “the defendant’s actions were a clear breach of my instructions to him”.
10.	The claim accordingly pleads breach of the implied terms of the solicitor’s retainer and negligence the particulars of which were:-
“(i)	The defendant failed to take or any proper instructions from the plaintiff regarding the second charge.  
(ii)	The defendant failed to take any or any proper instructions from the plaintiff as to whether the new company had been formed (it had not) and/or as to whether the escrow conditions had been fulfilled (they had not).
(iii)	The defendant sent the second charge off for registration despite having been told that the second charge was to be security for a loan by RBS to a new company and that it was to be held in escrow.
(iv)	The defendant sent the second charge off for registration without having received instructions to do so.
(v)	The defendant failed to advise the plaintiff on the possible effect of  signing the second charge in the form signed by the plaintiff.
(vi)	The defendant failed to take any or any proper step to ensure that the second charge would be construed (both by RBS and any third party) as security for the new company’s borrowings along (and in particular could not be construed as security for the borrowing of STL [the old company]).
(vii)	The defendant failed in the premises to act as a competent solicitor would have done.”
11.	Taking the story forward, on 11th October the bank appointed a receiver of the old company under the debenture it held as security for its borrowing.  The bank demanded payment from the old company and in default of payment sought to enforce the charge it had over the property.  On 9th February 1995 the bank started proceedings against the appellant for possession of the property and after protracted litigation against the bank the property was eventually sold in May 1998 and the proceeds applied in repaying the old company’s indebtedness to the bank.
12.	The appellant’s claim against the respondent was completed by his alleging that he had suffered loss and damage being the value of the property, the cost of litigation against the bank in seeking to have the second charge set aside and further damages for having become unable to develop, market and put into production the Nursery Angel.
13.	In his defence Mr Lehrer denied that he had been in breach of duty as alleged and specifically denied that the claimant had informed him that the second charge was to be used for a new company and/or was to be held in escrow as alleged or at all.  He admitted that on 28th September he had sent the first and second charges to the Land Registry for registration.  At some time between 19th and 21st September 1990 Mr Owen of the Royal Bank of Scotland had orally instructed the defendant to effect registration of both charges.  He alleged that the claimant’s cause of action had become time barred on the expiry of six years after the charge was sent for registration.
14.	Mr Ezekiel replied that the defendant had deliberately concealed facts relevant to his cause of action from him and he relied on s. 32(1)(b) of the Limitation Act 1980.
15.	That concealment is alleged to have arisen in the following way.  For present purposes we have to suspend disbelief and accept each and every word of the claimant’s allegations as the unvarnished truth.  In his first witness statement he says that in or about the end of November 1990 he received a letter dated 26th November 1990 from the defendant containing a reference to the second charge.  That letter reads as follows, with emphasis added by me:-
“Dear Freddy, 
re 16 Nant Road, Cricklewood.
Registration of the charges relating to the above property have now been completed.  Accordingly, I enclose my account for dealing with this matter and look forward to receiving your remittance as soon as possible.  I also enclose a copy of the Land Registry entries for your own records.  I would remind you that the first charge covers the debt of Daniel Smith to the bank and the second charge the debts of Simon Technologies Ltd. to the bank.
The fee note is for professional charges for legal services for granting of two charges:-
“one as a third party charge in favour of debts due to the bank by Daniel Smith and the other in respect of debts due to the bank by Simon Technologies Ltd.”
The office copy entries include an entry on the charges register as follows:-
“1.	October 1990 – charge dated 13th September 1990 registered on 1 October 1990 to secure the monies including the further advances therein mentioned.”
16.	It does not take a genius to understand that information.  It was a clear acknowledgement of a clear breach of the clear instructions said to have been given to the defendant not eleven weeks previously.  
17.	Mr Ezekiel explains what he did:-
“99.	Following receipt of that letter, I telephoned the defendant.  The letter had enclosed a bill relating to the first and second charges.  I said to the defendant that I thought that I had already paid for any work done is respect of the first charge as it had been carried out so long ago.  He gave a flippant answer saying I should thank my lucky stars he had not billed me for it earlier.  I asked him about the second charge.  He would not answer my questions and said that he had to take another call or that he interrupted another call to speak to me and was busy.  He did tell me to address my queries to Mr Owen who had instructed him to register the charges.
100.	I telephoned Mr Owen shortly after I spoke to the defendant.  I said to Mr Owen that the defendant had told me that Mr Owen had instructed him to register the charges.  Mr Owen confirmed readily he had done so.  I said that I had thought the second charge was not to be completed until next year.  He said we had agreed this and that I had told him I would give the second charge to secure the debts of STL.  He said he was busy and the call ended.
At this time, I accepted Mr Owen’s answer because I trusted both Mr Constable [the manager] and Mr Owen absolutely and Mr Owen’s ready admission that he had indeed instructed the defendant to register the second charge assured me.  I thought that if Mr Owen told me that I had freely agreed to give the second charge to secure the debts of STL then his recollection of events must be correct (and that mine was therefore incorrect).
I first learnt of the completion of the second charge about the end of November 1990.  At the time, my memory was hazy due to the heavy medication for my heart condition that I had been advised to take when necessary by the (now deceased) consultant cardiac surgeon who had treated me at the Royal Free Hospital during January 1981 and for some years thereafter.  I ceased taking such medication since 1993, however unwell and ill I feel.
101.	In about March/April 1991 I telephoned Mr Owen and again called into question the existence of the second charge.  I raised this matter a second time because I could not recollect what Mr Owen had led me to believe.  I could not credit that I had done something so unrealistic.  I was not sanguine that I had granted a charge so as to support the liabilities of STL to the bank, and indeed my recollection of events was that I had not granted any such charge.  However, during the second conversation Mr Owen again assured me that I had freely given the second charge to secure the debts which STL had incurred for the development of my N/A and its components and the payments made for Daniel’s conversion of the property.  As I have already stated, since I placed absolute trust in Mr Owen I believed (at the time) that my angina medication had caused amnesia and that his account of events was correct and that my recollection of events was therefore incorrect.
102.	These conversations had a devastating effect on my mind and self-confidence.  I stopped being able to rely on my own memory which I had previously thought of as good.  I thought that if I could not accurately remember agreements I had made with the bank, or the purposes for which I had used money advanced by the bank through STL, then I could not trust myself in relation to other matters.”  (Emphasis added by me).
18.	The second witness statement is to like effect.  He referred to the receipt of the letter of 26th November and the enclosed fee note.  He continued:-
“15.	Until that time I had been unaware that the second charge had been registered.  Following receipt of that letter I telephoned the defendant and asked him about the first and second charges.
16.	The defendant ought to have informed me during this conversation:
(i)	That my instructions had been that the charge should be in favour of the new Simon Technologies Ltd.;
(ii)	That my instructions had been that until the company had been formed the charge should be held in escrow;
(iii)	That the escrow conditions had not been fulfilled and that I had not authorised him to register the charge; and
(iv)	That in the circumstances he had acted in breach of my instructions and in breach of his duty to me by sending the charge for registration.
However, in breach of his duty, the defendant refused to answer my questions about the second charge and told me to address my queries to Mr Owen and ask him about the second charge.  Further the defendant did not advise me to seek independent advice.”
19.	He again sets out the content of his conversation with Mr Lehrer and with Mr Owen in terms not dissimilar to those I have already set out from his first written statement.  He also deals with the later conversation with Mr Owen in April saying that he again called in question the existence of the second charge.  He continued in paragraph 21:-
“I raised this matter because I still could not comprehend how I had come to grant a charge so as to support the liabilities of STL to the bank, and indeed my recollection of events was that I had always refused to grant any charge on the property to secure STL, which was not my company. ... As I have already stated, I placed absolute trust in Mr Owen who convinced me, because of my over-medication at that time, that my recollection must be incorrect and his was correct.  By this time I believed what Mr Owen told me, namely that I had granted a second charge of the property as security for the debts of STL.  I attempted to discuss the matter again with the defendant, I believe around this time and later, but he was very busy and abrupt and so unwelcoming that we drifted away thereafter, using other solicitors.” (Once again emphasis is added by me).
20.	That evidence is offered to support the reply which pleads the following particulars of the deliberate concealment of facts relevant to his cause of action as follows:-
“(i)	Given the instructions which the claimant gave the defendant on or before 13th September 1990 ... and the fact that the defendant sent the second charge off for registration in late September 1990 or thereabouts, the claimant will ask the court to infer that by the time of the telephone conversation [after receipt of the fee note in late 1990] the defendant knew that he had committed a breach of duty in sending the said charge off for registration.
(ii)	... The defendants refusal to answer questions [during the course of that telephone conversation] relating to the second charge was a deliberate act which would inevitably have and which had the effect of concealing from the claimant facts involved in the breach of duty.  These facts were and are relevant to the claimant’s cause of action.
(iii)	The claimant will say that given the matters set out in paragraph (i) above the defendant was under a duty to inform the claimant of the defendant’s negligence further or alternatively to inform the claimant to seek independent advice.  The defendant’s failure to give such advice in the circumstances ... itself amounted to a breach of duty.  The claimant will ask the court to infer ... that the failure to give such advice was deliberate and that in the circumstances the claimant was unlikely to discover this further breach of duty for some time.
(iv)	In fact by reason of the defendant’s refusal to answer questions relating to the second charge and Mr Owen’s statements ... the claimant believed that the second charge had been validly granted until 1996 and accordingly did not discover the defendant’s breaches until 1996.”
21.	That discovery was made in the circumstances he sets out in his first witness statement as follows:-
“117.	In early 1996 a water pipe burst in my son Mark’s office at 398 Finchley Road.  Whilst clearing up, at or in about the middle of March 1996, Mark found two letters dated 12th September 1990 [the letter he wrote to the bank confirming the arrangements made that day and the letter from his son-in-law to put the company into receivership].  I had not seen these letters since September 1990.  Mark told me that he had found them in an envelope for the wages of a Mr Jack Moses (a relative) which he opened out of curiosity.  Mr Moses had been working for me in 1990.  I can only presume that he put them in such an envelope to keep them dry or a similar reason.  I had not, therefore, found these letters when I was looking through my papers relating to the second charge.
118.	After Mark showed me these letters, I started to think and reflect on what I had been led to believe by the managers of the bank and to investigate the past.  By May 1996 I realised that Mr Owen was wrong when he stated that I had granted the second charge so as to secure the liabilities of STL.  Indeed, rather than believing Mr Owen’s statement as to the second charge, I realised that my own recollection of events was true and accurate and that Mr Owen had misled me (whether inadvertently  or deliberately) as had the defendant also when I had called him on 21st March 1996, and he had denied that I had told him I was signing the charge to escrow for him to hold for the new company, pending its formation and the purchase of the assets of the old company from the receiver with a facility to be provided by the bank secured on that charge.  
119.	The discovery of these letters (in due course over the next three years) freed me from doubting my own mind.  I now believe in myself and my memory.”  (Emphasis added by me).
22.	Having recited those facts, and more, the learned judge dealt with the matter before him as follows:-
“29.	The claimant relies on s. 32(1)(b).  He pleaded, but did not in argument place reliance on, s. 14A of the Limitation Act 1980.  
30.	I accept that if it is established that there was a telephone conversation between the claimant and the defendant in late 1990 in which the subject of the second charge was raised by the [claimant], at a time when the defendant knew he had broken his instructions from the claimant with relation to the second charge, in the course of which conversation the defendant did not reveal that he had done so and advised the claimant to seek legal advice elsewhere, then his conduct would constitute “deliberate concealment” within s. 32.  See Markes v Coodes [1997] PNLQ 252.  Failure to make his position clear would constitute a “deliberate” act within s.32 even if the defendant’s actions were not motivated by any intention to deceive the claimant:  see Brocklesby v Armitage & Guest (a firm) [2001] 1 AER 172.
31.	However it must be borne in mind that what the claimant, according to his account of events, was doing in that conversation was raising his recollection of the instructions which he had given to the defendant on 13th September 1990 in a conversation consequent on receiving the defendant’s letter of 26th November some seven weeks earlier.  It follows that on receipt of the 26th November letter the claimant was in possession of all the facts relevant to his cause of action, that is, his instructions to the defendant and the fact of the breach of those instructions by the defendant.  That he subsequently allowed himself to be persuaded by Mr Owen that no such instruction had been given and, in consequence, no such breach had taken place does not, it seems to me, affect this situation.  It follows that s. 32(1)(b) does not assist the claimant.  
32.	Even if that conclusion is wrong and the claimant’s conversation with the defendant must be taken as having, in some way, expunged his recollection of his instructions to the defendant (which is not how the claimant describes this as happening since he says that this was brought about by the persuasiveness of Mr Owen) it seems to me to be clear from the claimant’s own description of the events in his pleadings and in his witness statements that he could, with reasonable diligence, have quickly discovered that he had been misled.
...
37.	In my judgment there is no real prospect that the claimant will succeed in bringing his case within s. 32(1)(b) of the Limitation Act 1980 on which the success of that case depends.  It follows that I must dismiss the claimant’s proceedings.”
23.	The respondent has to accept in this court that he cannot challenge the judge’s approach set out in paragraph 30 of his judgment because Brocklesby v Armitage & Guest is binding on this court.  It is a decision which came under very strong attack from another division of this court in Cave v Robinson Jarvis & Rolf [2001] PNLR 573 where its correctness was seriously doubted.  We were told that an appeal in Cave is pending in the House of Lords.  Out of an abundance of caution, should this appeal go further, Mr Pooles Q.C. reserves his position to join the clamour of opposition to Brocklesby.  Mr Driscoll Q.C., who has manfully argued the appellant’s case which we had thought would be advanced by him in person, seeks to build upon that shaky edifice by developing a submission that, because it has to be assumed that the claimant has established that which Mr Lehrer has always stoutly denied, namely the instructions to hold the charge in escrow and not to release it without instructions from the claimant, his breach of those instructions was a clear breach of duty, that accordingly, when he was asked in November 1990 why the second charge had been registered, he was under a further duty arising from the solicitor/client relationship to inform his client that he had been negligent or at least that he had better seek independent advice as to whether or not he had been negligent.  He relies on Markes v Coodes and on a passage in the judgment of Laddie J. in Liverpool Roman Catholic Archdiocese Trustees Incorporation v Goldberg [2001] 1 All E.R. 102, 191:-
“Section 32(1)(b) of the 1980 Act prevents the limitation period from running if there has been an intentional action which has resulted in any fact relevant to the cause of action being rendered invisible to the claimant.  It seems to me that the purpose of s. 32(2) of that Act is to treat breaches of duty which are “deliberate” (in the Brocklesby sense), in the same way.  That is to say, it deems intentional commission of a breach of duty which is unlikely to be discovered in the same way as if it were a deliberate concealment of the facts which are necessary to maintain the action for breach of duty.  Thus even if all the facts are known to the claimant, the intentional commission of the breach of duty in circumstances where that breach is unlikely to be discovered, results in the creation of a legal fiction, namely that the facts are unknown.”
24.	I have some difficulties with this.  First, although the artificial constraints of an interlocutory procedure which require the claimant’s case to be accepted, word for word, may produce the fertile ground in which a fiction can flourish, the same unlikely consequences flow from a full-blown trial.  Assuming that the solicitor has the duty to advise his client that he has been negligent, or advise him to seek alternative advice to establish whether or not he has been negligent, that duty can only arise if the solicitor knew or ought to have known that he was guilty of an earlier breach of duty.  If that earlier breach has to be established before it can be determined whether s. 32(2) applies at all, then the very thing which a limitation bar is intended to avoid, namely a trial of the real issue, has to be undertaken.  It seems to me that it may defeat the whole purpose of the Act.  If it does it suggests the arguments are unsound.  The views of Neuberger J. in Gold v Mincoff & Gold (a firm) [2001] show the preferable way forward.  
25.	Secondly, if it is correct that a solicitor, or barrister or any professional person genuinely believes that the advice he has given is good advice, and not negligent advice, then it would be absurd to suggest that he has to tell the client at the time he gives the advice that it may be negligent and that the client had better take other advice to see whether or not it is negligent.  The adviser to whom the client turns would be bound to give the same warning.  Like Rugby football’s mythological Ooh-Aah bird, the client would be going round and round in ever decreasing circles seeking advice on the advice on the original advice ad infinitem  (and professional life would end up suffering the bird’s  ghastly fate).
26.	Thirdly, Mr Pooles Q.C. may be right that the argument carries the case no further because the cause of action is not based upon that breach of duty.
27.	Fortunately, however, it will not be necessary for me to decide any of these interesting and perhaps complex issues because if the judge was correct in his conclusions set out in paragraph 31 of his judgment, those questions simply do not arise.  The real and only question in this appeal is whether the judge was correct in his analysis that it followed that “on receipt of the 26th November letter the claimant was in possession of all the facts relevant to his cause of action, that is, his instructions to the defendant and the fact of the breach of those instructions by the defendant".  It leads to the more general and extravagant question I posed at the beginning of this judgment namely whether one must be taken as knowing that which one has forgotten.  Mr Driscoll contends that:- 
(i)	the sending of the letter of 26th November and the subsequent telephone calls were deliberate acts which had the effect of concealing a relevant fact – his own instructions – from the claimant;  and/or
(ii)	the deliberate commission of the breach of duty to advise is another concealment of the facts involved in that breach of duty;
(iii)	that deliberate concealment is “the starting point” and that as soon as a relevant fact is concealed, the clock stops and time does not run until the facts are discovered.
28.	I simply do not accept that submission.  An analysis of s. 32(1)(b) requires the court to establish first what facts are relevant to the plaintiff’s cause of action and then to establish that any one of them has been deliberately concealed from the plaintiff by the defendant.  The facts relevant to this right of action are:-
(a)	That there was a meeting on 13th September 1990 at which the plaintiff instructed the defendant that :-
(i)	the second charge was to be used for a new company,
(ii)	it was to be held in escrow,
(iii)	it was not to be released without the plaintiff authorising that release after the new company had been formed and accepted the Bank’s facility.
(b)	The defendant was in breach of his duty specifically because:-
(i)	the defendant failed to take instructions from the plaintiff about the new company or the escrow conditions.
(ii)	the defendant sent the charge off for registration without instructions to do so and when it should still have been held in escrow.
(c)	As a result of registration the claimant suffered damage because his property was now security for the debts of the ailing old company which had been put into receivership by the time the letter of 26th November was written, as a result of which the claimant’s property was at risk of the foreclosure which eventually occurred.
29.	The claimant pleads and his witness statement confirms that the defendant was given “clear instructions”.  To succeed he has to prove that.  It is something the defendant has always denied, but we are not allowed to take notice of that denial for current purposes.  The claimant’s case is not that he did not know what he was doing on 13th September.  His case is that he knew perfectly well what he was doing which was setting up a facility for a new company in a way which would enable him to rescue his Nursery Angel project and in a way which would not saddle him with the debts of the old company.  As Mr Driscoll opened the case to us, there was no obvious reason why he should volunteer a charge for a company about to go into receivership.  He cannot succeed unless he can establish that he knew what he was doing on 13th September in his solicitor’s offices when he gave him the instructions upon which his whole case depends.  At that time he had knowledge of the relevant facts upon which his right of action was dependent.
30.	Moreover, as the judge found, the claimant believed that those had been his instructions at the time when he received the 26th November letter and its enclosures.  It was because the information in that letter so obviously appeared to be in conflict with his instructions that he telephoned to enquire what had happened.  He is hardly forthcoming about precisely what questions he asked but it is plain that his solicitor told him that the charge had been registered because Mr Owen had instructed him to proceed.  He does not, incidentally, blame his solicitor for concealing the facts from him and suggests rather that, as he says at paragraph 100 of his first witness statement:-
“I thought that if Mr Owen told me I had freely agreed to give the second charge to secure the debts of STL then his recollection of events must be correct (and that mine was therefore incorrect).”
31.	Moreover his witness statements make clear that even in March or April 1991 his “recollection of events was that I had always refused to grant any charge on the property to secure STL, which was not my company”:  see paragraph 21 of his second statement.  So even then his memory was that his solicitor must have gone wrong somewhere along the line.
32.	I simply do not see how a response from the solicitor along the lines of, “Go and ask Mr Owen why I registered this charge”, can amount to a deliberate concealment of the fact that eleven weeks earlier the client had told the solicitor not to allow registration without his authority.  Lord Browne-Wilkinson in Sheldon v R.H.M. Outhwaite (Underwriting Agencies) Ltd.. [1996] A.C. 102, 144  identifies the fatal flaw in the claimant’s argument:-
“For myself, I do not find it absurd that the effect of s. 32(1) is to afford to the plaintiff a full six-year period of limitation from the date of the discovery of the concealment.  In such a case, the plaintiff must have been ignorant of the relevant facts during the period preceding concealment:  if he knew of them, no subsequent act of the defendant can have concealed them from him.  If the defendant then deliberately takes a step to conceal the relevant facts (a step which is by ordinary standards morally unconscionable if not necessarily legally fraudulent) it does not seem to me to be absurd that a plaintiff who had been prevented by the dishonourable conduct of the defendant from learning of the facts on the basis of which to found his action should be afforded the full six-year period from the date of the discovery of such concealment to bring his action.”
The italicised sentence kills the claimant’s case stone dead because the claimant cannot have been ignorant of the ”clear” instructions he gave his solicitor during the period leading up to the seeds of doubt being sown by the conversations with Mr Owen.
33.	The letter of 26th November, the fee note and the office copy entries give the claimant knowledge of the second set of relevant facts upon which his claim depends, namely a clear breach of the clear instructions he had given.
34.	Mr Ezekiel is a sufficiently experienced man of business to know that damage would flow and Mr Driscoll readily conceded that if his client knew that his solicitor had been instructed not to allow the charge to be registered without authority and then discovered that it had been done without his authority, he would know he had a cause of action without anybody telling him that his solicitor had been guilty of professional negligence.
35.	It has taken a long time to arrive at the conclusion that the claimant knew what he was doing on 13th September; that if, which I doubt, there was any concealment by the solicitor, that concealment cannot wipe out a fact already known; there was no new starting point as Mr Driscoll submits and the clock continued to tick without interruption.  Knowledge of the breach and damage was conveyed in the letter of 26th November.  Accordingly s. 32 does not avail the claimant.
36.	After this judgment had been drafted, Mr Ezekiel wrote in person to the court seeking an ajournment of the handing down of the judgment in order that he might address the court in person.  In his closely typed ten page letter he says this:-
“By the conduct of the defendant then and subsequently and also the subsequent assurances of the Bank’s officer, Mr David Owen, I was persuaded that I must have subsequently given consent for a charge (i.e. at some time after I had instructed Mr Lehrer to hold it in escrow for the new company STL).
Accordingly and for the absolute avoidance of doubt, I confirm that my evidence is that I could recall having executed the charge and giving instructions for it to be held in escrow, but as a direct result of the misrepresentations and deliberate concealment of my solicitor and the Bank manager, I was led to believe that I must have subsequently countermanded those instructions or given oral authority to the Bank manager or solicitor for the charge to be completed.”
This is explicit in acknowledging that he recalled the instructions he had given for the charge to be held in escrow, he knew those instructions had not been carried out because the charge had in fact been registered and that damage had resulted.  He clearly knew the relevant facts necessary for him to bring the cause of action upon which he now relies.  Having carefully considered his letter, I see no reason to change my conclusions:  on the contrary they are reinforced.
37.	On that view of this case, it is quite unnecessary to deal with the alternative submission that the claimant could with reasonable diligence have discovered that he had been misled.  In the circumstances the judge was correct to find that the claim was statute-barred.
38.	Mr Driscoll did advance, but not with any great conviction, a submission made by Mr Ezekiel when acting in person that the judge was in error in accepting the invitation to deal with an application for summary judgment when a date for the trial had long been fixed and was but a few weeks away.  Whether or not to accede to that request was a matter for the exercise of the judge’s discretion.  As I write this judgment with Christmas approaching, it is appropriate to say that the proof of the pudding is in the eating.  The judge had no difficulty in dealing with the case on paper, thereby giving the claimant the latitude of accepting his case on face value, yet he still dismissed it.  Part 24 CPR does not deprive a party of a fair trial and there is simply no merit in the suggestion, not advanced by Mr Driscoll, but by Mr Ezekiel that the procedure offends Article 6 of the European Convention on Human Rights.  It follows that in my judgment the appeal must be dismissed.  
39.	After judgment was handed down the judge dealt with costs and held:-
“It seems to me that there is no opposition to the costs of the application being the defendant’s costs.  The question is should the defendants have the entire costs of the action or should some order be made as to costs which reflect the fact that this application to strike out was very late in coming as a result of which a number of costs incurred in preparing for the trial which was to start in April need not have been incurred if the application had been made in good time and this result had followed.  It seems to me appropriate therefore that the claimants should have their costs up to 24th July 2000 but as to the remainder of the costs there should be no order.”
40.	Faced with this appeal the defendant obtained permission from Peter Gibson L.J. to appeal that issue of costs.  Costs are, of course, very much a matter for the judge’s discretion and this court is very slow indeed to interfere.  In this case, however, I am satisfied that the judge was in error.  The incurring of the costs of preparation for the trial resulted not from the defendant’s delay in applying under Part 24 but in the claimant pursuing a claim which was bound to fail.  If the case had gone to trial there would have been a great deal more costs involved and the claimant would have had no answer whatever to the argument that costs should follow the event, and that all the costs including those which the judge has now denied the defendants should be paid by the claimant.  In my judgment the judge was wrong and I would allow the cross-appeal, vary the judge’s order and dismiss the claim with costs.
Jonathan Parker LJ:
41.	I agree that the appeal should be dismissed.
42.	The appellant asserts that, whilst he was initially aware of all the facts relevant to his cause of action, he was subsequently persuaded that his recollection of one or them (i.e. the instructions which he gave to the respondent) was faulty, and that the respondent thereafter deliberately concealed that fact from him.    For present purposes, it has to be assumed that those assertions are true - although the assumption is one which, to say the least, strains credulity.   On that assumption, however, the question is whether section 32(1)(b) had the effect of preventing time from running.
43.	In Sheldon v. Outhwaite [1996] 1 AC 102, Lord Browne-Wilkinson said (at p.144A):
“For myself I do not find it absurd that the effect of section 32(1) is to afford to the plaintiff a full six-year period of limitation from the date of discovery of the concealment.   In such a case, the plaintiff must have been ignorant of the relevant facts during the period preceding the concealment: if he knew of them, no subsequent act of the defendant can have concealed them from him.”
44.	Lord Browne-Wilkinson’s reference to “the period preceding the concealment” is plainly a reference to the period beginning with the accrual of the cause of action.  In my judgment a claimant who was at some point during that period aware of the fact which he alleges was subsequently concealed from him cannot avail himself of section 32(1)(b).    I doubt very much whether, when he said that a plaintiff “must have been ignorant of the relevant facts during the period preceding the concealment”, Lord Browne-Wilkinson had in mind the bizarre factual situation which is assumed to have arisen in the instant case; but in any event, a claimant who at some stage during the period knew the fact in question cannot in my judgment be heard to say that he was ignorant of it during that period.
45.	Were it otherwise, the effect of section 32(1)(b) in affording a claimant a full six-year period of limitation would indeed be absurd, in that it would be open to a claimant who was initially aware of all the facts relevant to his cause of action but who was subsequently persuaded that his recollection of one of those facts was faulty, to establish that, either on that occasion or at some time thereafter before the date on which he “rediscovered” the truth (or could reasonably have done so), that fact was concealed from him, with the consequence that he would have a full period of six years from that date in which to bring his action.    In my judgment, section 32(1)(b) cannot have been intended to produce such an absurd result.
46.	I accordingly agree with the judge’s conclusion (in paragraph 31 of his judgment) that the (assumed) fact that the appellant subsequently allowed himself to be persuaded by Mr Owen that his instructions to the respondent were not as he recollected them does not enable him to take advantage of section 32(1)(b).
47.	A further question arises as to whether the appellant can found a claim against the respondent based upon the allegation that when he sent off the charge for registration the respondent knew that he had committed a breach of duty and that he was thereafter in breach of his duty to inform the appellant of his earlier breach of duty.
48.	By paragraph (1) of the Particulars pleaded under paragraph 26 of his Reply (being the paragraph in which the allegation of deliberate concealment is made), the appellant invites the court to infer that by the time of the appellant’s telephone conversation with the respondent following receipt of the respondent’s letter dated 26 November 1990 the respondent “knew he had committed a breach of duty in sending off the charge for registration”.    Paragraph (2) of the Particulars pleads that the respondent’s alleged refusal, in the course of that telephone conversation, to answer questions relating to the charge was a deliberate act which would inevitably have and which had the effect of concealing from the appellant facts involved in the breach of duty, being facts relevant to the appellant’s cause of action.   Paragraph (3) of the Particulars is in the following terms (so far as material):
“The [appellant] will say that given the matters set out at paragraph (1) above the [respondent] was under a duty to inform the [appellant] of the [respondent’s] negligence further or alternatively to seek independent advice.   The [respondent’s] failure to give such advice in the circumstances set out at paragraph 12.1 above itself amounted to a breach of duty.   The [appellant] will ask the court to infer .... that the failure to give such advice was deliberate and that in the circumstances the [appellant] was unlikely to discover this further breach for some time.”
The appellant thus seeks to allege a separate breach of duty, on the back, as it were, of the original breach of duty in completing and registering the charge; and he contends for a separate period of limitation in relation to that later breach of duty.
49.	In Gold v. Mincoff Science & Gold [2001] Lloyds Rep. PN 423 Neuberger J warned against too ready an acceptance by the court of a separate duty on a solicitor to advise that he had previously been negligent.   At paragraph 98 of his judgment in that case, Neuberger J said this:
“Mr Davidson [for the defendants] rightly warns against the court being too easily persuaded by the claimant that he has a fresh cause of action against his solicitor on the basis that the solicitor failed to advise, at some point after his initial negligence, that he had been negligent.   If such an argument were too readily accepted, it would have two unsatisfactory consequences.   First, it would enable the provisions of the 1980 Act to be evaded in many cases in an artificial way.   Secondly, it would effectively impose on a solicitor some sort of implied general retainer.   Accordingly, I would accept that it would be a relatively exceptional case where the court would be prepared to hold that a solicitor’s negligence claim that was otherwise statute-barred could, albeit in a slightly different guise, be resurrected on the basis that, at a time within the limitation period and less than six years before the issue of proceedings, the solicitor failed to advise that he had been negligent.   Only if the facts clearly warrant such a conclusion should the court adopt it, in my view.”

I respectfully agree with those observations of Neuberger J.
50.	Evans-Lombe J’s judgment does not specifically address this question, and it  may well be that the reason for that is that the question did not figure so prominently in the argument before the judge as it did in the argument on this appeal.   Be that as it may,  to found a claim based on an allegation of breach of a secondary duty arising by reason of an earlier alleged breach of duty more is required, in my judgment, than a bare allegation that the defendant knew of his earlier breach when he committed it.   In the instant case the appellant has not pleaded any facts from which the court could infer that at the time of the telephone conversation the respondent knew that he had committed a breach of duty, beyond the bare allegation that the completion and registration of the charge was contrary to the appellant’s instructions - that being the central issue in the case.
51.	In my judgment, therefore, had the judge considered this further contention of the appellant, he would have been right to reject it.
52.	I also agree that the cross-appeal on costs should be allowed, for the reasons Ward LJ has given.
Harrison J.:
53.	I agree that the appeal should be dismissed and that the cross-appeal should be allowed.
Order: 	appellant's appeal dismissed;  respondent's cross-appeal allowed and order 		below set aside insofar as it concerns the costs of the claim;  costs of the 			appeal and the cross-appeal and the costs of the claim to be paid by the 			appellant to the respondent, to be assessed on the standard basis if not 			agreed;  application for permission to appeal dismissed.
(Order not part of approved judgment)