The Inland revenue are correct, Professional negligence claims have no limitation where any fact relevant to a claimants cause of action has been deliberately concealed from them by the defendant. The limitation period will not begin to run until the claimant has (or could have) discovered concealment. 

The most significant court case is McCabe -v- BAT. Ms McCabe suffered from smoking related diseases and brought proceedings against BAT in respect of their document retention policies. The judge found that BAT had 'deliberately obliterated' discoverable documents and entered judgement against BAT. However, the court of appeal reversed his decision. The court of appeal emphasised that "There must be some balance struck between the right of a company to manage its own documents, whether by retaining them or destroying them, and the right of the litigant to have resort to the documents of the other side." They went on to state "...where one party alleges against the other the destruction of documents before the commencement of the proceedings to the prejudice of the party complaining, the criterion for the courts intervention (otherwise than by drawing adverse interference, and particularly
if the section sought is striking out of the pleading) is whether that conduct of the other party amounted to an attempt to prevent the course of justice or, if open , contempt of court occurring before the litigation was on foot." 

In short; it is almost impossible to identify in advance which documentation would need to be kept in case of potential actions. 

The chance to challenge the six-year rule has always been there and the recent court case should not effect RM policies, mainly due to the nature of the case i.e. no documents were involved in the original crime. 

Robin Scally
Records Manager
Freshfields Bruckhaus Deringer
65 Fleet Street, London, EC4Y 1HS
Direct Tel:     +44 20 7427 3889
Mobile:           077250 63907
Fax:             +44 20 7108 3889
 

-----Original Message-----
From: The UK Records Management mailing list [mailto:[log in to unmask]] On Behalf Of Toby Davison
Sent: 01 February 2008 16:23
To: [log in to unmask]
Subject: Re: Limitation Act - 6 year rule challenged?

We had a similar issue here (and indeed it is still ongoing) with the Inland Revenue relating to tax underpayments. Many of which were well over 6 years old and with our interpretation of the Limitation Act have been destroyed. 

The Inland Revenue however was saying (and still seem to be, to us anyway), that the 6 year retention starts from when a claim is made or an underpayment has been discovered, which could be many years later.
Not our interpretation and seems to contradict current retention thinking. 

Maybe this needs revisiting? 

Toby 

Toby Davison | Records, Archives and Information Manager | Together Trust | Schools Hill | Cheadle | SK8 1JE | Tel: 0161 283 4848 |  E-Mail:
[log in to unmask] | www.togethertrust.org.uk   


-----Original Message-----
From: The UK Records Management mailing list [mailto:[log in to unmask]] On Behalf Of Edith Pringault-Adam
Sent: 01 February 2008 16:06
To: [log in to unmask]
Subject: Limitation Act - 6 year rule challenged?

Dear all,

I am surprised to see no reference on Jiscmail to the impact on records retention based on the Limitations Act following the case of the woman who successfully challenged a court decision to the House of Lords for claiming damages well after the 6-year limit (House of Lords 30/01/2008). See story at http://www.channel4.com/news/articles/society/law_order/lords+rule+rapis
t+can+be+sued/1440247

Unless I am totally wrong here, this has implications on the 6-year rule, which is the basis of so many retention periods in England and Wales.

Or does this only concerns the police and the courts??

This Act does not apply in Scotland, so this is purely out of interest.

Thank you for your comments.

Regards,

Edith

*******************************************
Edith Pringault-Adam Msc RM
Information and Records Manager
Aberdeenshire Council

Bberry: 07767618856
Telephone: (01569) 768250
Internal: 724 - 8250

[log in to unmask]

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