The High Court adjourned Bank of Scotland plc’s motion to have a preliminary limitation issue tried in a claim over an investment in the Invista Opportunity Fund. Mr Justice Meenan said it would be premature to decide that motion until the plaintiff pleaded and particularised his reliance on a statutory provision concerning fraud and concealment.
The plaintiff’s proceedings, issued in August 2015, concern an investment of about €250,000 made in or about October 2007. He alleges that Bank of Scotland recommended an unsuitable fund and pleads breach of contract, negligence, breach of duty, including statutory duty, and misrepresentation. The judgment records that Friends First Life Assurance Company Limited was the fund’s manager, holder or operator.
The bank pleaded that the claim was barred under the Statute of Limitations Act 1957, as amended. It sought an order directing a preliminary trial of whether the claim was time-barred. Its solicitor submitted that the cause of action accrued when the investment was made. The bank also relied on events and documents in 2007 and 2008, all more than six years before the proceedings were issued.
The plaintiff said his complaints mainly concerned matters arising during the fund’s performance rather than at the time of investment. In a replying affidavit, he also sought to rely on section 71 of the Act, which can defer the start of the limitation period where fraud or concealment is involved, until discovery or when discovery could reasonably have occurred. The judge noted that the provision had not been pleaded and that the plaintiff’s affidavit raised it only in general terms.
Mr Justice Meenan said the bank was entitled to full particulars of the alleged fraud and concealment, including when and in what circumstances the plaintiff said he discovered it. He directed the plaintiff to deliver a reply pleading the section 71 defence, with full and detailed particulars, within 21 days of the judgment, delivered on 26 May 2020.
The motion was adjourned generally with liberty to re-enter pending those steps. The court did not decide whether the claim was time-barred or direct a preliminary trial of that question.