Hong Kong: Certainty Restored in Professional Negligence Claims

Last Updated: 14 October 2002

Having been exposed to virtually indefinite limitation periods in respect of negligence claims by virtue of Brocklesby, interpretation of the Limitation Act has now been clarified following the House of Lords’ decision in Cave v. Robinson Jarvis & Rolf [2002] UKHL 18. In Cave, the House of Lords overruled an English Court of Appeal decision, Brocklesby v. Armitage & Guest [2001] 1 All ER 172, which had the effect of undermining the viability of a limitation defence in many professional negligence cases by extending the meaning of the expression "deliberate concealment" in Section 32(1)(b) Limitation Act 1980, a provision which is mirrored by Section 26(1)(b) of the Hong Kong Limitation Ordinance.

Cave has re-established the position that a professional who has acted conscientiously and in good faith in attempting to perform an obligation, should not be faced with the statutory time limitations applicable to cases of deliberate concealment. This obviously good news for professionals and their insurers.

Limitation problems – section 26(1)(b) Limitation Ordinance

Section 26 of the Limitation Ordinance governs the postponement of the commencement of the limitation period in cases of fraud, concealment or mistake. S.26(1)(6) provides:

Where "any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant…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."

S.26(3) provides that:

"For the purposes of subsection (1), 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 Brocklesby, which concerned a solicitor’s failure to ensure release from liabilities under a mortgage, it was held by the English Court of Appeal that "deliberate commission of a breach of duty" occurred where:

"…the commission of the act was deliberate in the sense of being intentional and that act or omission, as the case may be, did involve a breach of duty whether or not the actor appreciated that legal consequence."

Prior to Brocklesby, it was assumed that where a professional acted in breach of duty, but did not act culpably in concealing the breach from his client, the commencement of the limitation period would, pursuant to S.31 of the Ordinance, expire six years from the date of the breach (the normal limitation period), or three years after the plaintiff had the knowledge required to bring the proceedings, whichever is the later, subject to a "long stop" date of 15 years (S.32, see also Ss.14A and 14B Limitation Act 1980). Claims under S.26 have no such long stop date.

Brocklesby – the effect

Brocklesby effectively eliminated the distinction between "deliberate" breach of duty and the "ordinary" case where a breach of duty was not appreciated at the time of the breach and was unlikely to come to light for some time thereafter (e.g. where a title defect to property was missed by a solicitor acting for the purchaser). Potentially, therefore, professionals were faced with indefinite limitation periods, and therefore the prospect that they must defend cases on the merits many years after their involvement had concluded. Brocklesby was followed in England at first instance in the subsequent case of Liverpool Roman Catholic Archdiocese v. Goldberg [2000] Lloyd’s Rep PN 836 and reluctantly in Gold v. Mincoff Science & Gold [2001] Lloyd’s Rep PN 423. It was also followed in Hong Kong (as one would expect), in the first instance decision in Gimex Development Limited v. Fang Meng Sung, John (formerly trading as Messrs. J Fang & Co, Solicitors) [2001] 1217 HKCU 1, a case involving a conveyancing transaction where the solicitor was alleged to have failed to ensure that his client purchaser obtained good title to the property being purchased.

Cave – the facts

The plaintiff instructed a firm of solicitors, the defendants, to act for him in connection with a transaction under which a company was to grant him mooring rights for a period of 100 years over its land. The defendants approved the drafting of the document by which the mooring rights were to be granted and the transaction was completed in March 1989.

In early 1994, receivers of the company informed the plaintiff that his moorings rights were no longer exercisable. In November 1995 the plaintiff wrote to the defendant complaining that the mooring rights he thought he had been granted were being challenged and he sought assistance in resisting the challenge. Despite repeated letters during the following two years, no answer to his letter was received. The plaintiff issued a writ claiming damages in negligence on 16 January 1998, outside of the three-year extension permitted by the equivalent of S.31 of the Limitation Ordinance. Both at first instance and in the Court of Appeal it was held, following Brocklesby, that breach of duty had been deliberate in circumstances where the breach was unlikely to be discovered for some time and therefore that the primary six year limitation period had not started running until 1994, which was the date when the plaintiff first became aware of the alleged negligent act. Accordingly the limitation defence failed. It should be noted however that the Court of Appeal expressed some disquiet at the decision in Brocklesby, but considered itself bound by it.

Cave – the House of Lords’ decision

Cave went on appeal to the House of Lords. The House unanimously held that the construction of the equivalent of S.26 given by Morritt LJ in Brocklesby was wrong. Lord Millett, who gave one of the leading speeches, held that, in the absence of any intentional wrongdoing on the part of the professional, the result of Brocklesby could neither be just nor consistent with the underlying policy of the Limitation Act. To expose a professional to a claim for negligence long after he had retired from practice and had ceased to be covered by indemnity insurance must defeat the purpose of a statutory limitation period. Further Lord Millett opined, a man could not sensibly be said either to conceal or to fail to disclose something of which he was ignorant.

He concluded that the equivalent of s.26(1)(b) serves to deprive a defendant of a limitation defence in two situations: (i) where he takes steps to conceal his own breach of duty after he has become aware of the breach; and (ii) where he is guilty of deliberate wrongdoing and conceals or fails to disclose it in circumstances where it is unlikely to be discovered for some time. Lord Scott in Cave distinguished "deliberate commission of a breach of duty" from "commission of a breach of duty which is not deliberate", i.e., a breach of duty which is inadvertent, accidental or unintended, and similarly supported the view that the provision could not apply to a breach of duty of which the alleged wrongdoer was unaware.


Cave restores the assumed position prior to the Court of Appeal decision in Brocklesby. It ought to be followed in Hong Kong. In confining the limitation period in cases where the professional, although negligent, was not deliberately so and did not deliberately conceal his breach of duty to his client, Cave must reduce the exposure of professionals and their insurers to claims.

© Herbert Smith 2002

The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.

For more information on this or other Herbert Smith publications, please email us.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions