Bajwa & Ors v Furini

Under section 35 of the Limitation Act 1980, an amendment advancing a new cause of action cannot be allowed after the limitation period has expired unless the statutory same-facts condition is satisfied. The relevant date is when the amendment is actually made.

A judgment delivered before the expiry of the period does not make an amendment where it leaves the specific revised pleading for later agreement or approval. In that event, the court has no discretion to permit the amendment after expiry. A separately issued action is the proper forum for determining the limitation defence.

The claimant, as administratrix of her late father's estate, brought rectification proceedings concerning transfers of land allegedly made by forgery. A related probate action was resolved by a Tomlin order. Its schedule provided for an account, without prejudice to relief sought or which might be sought in the rectification action.

The claimant sought to amend the rectification claim to allege that the first defendant himself had forged the instruments and held property or proceeds on constructive trust. The deputy judge rejected the defendant's construction objection, but permitted revised amendments directed to unachieved benefits outside the agreed accounting process. He later declined to entertain a limitation objection and granted permission to amend.

The defendant appealed. The central issues were whether the Tomlin order barred the proposed additional relief and whether the amendments had been made before expiry of the applicable limitation period.

1. Appeal allowed unanimously. Sir Martin Nourse, with whom Maurice Kay and Mummery LJJ agreed, affirmed the deputy judge's construction of the Tomlin order. The unrestricted words preserving relief which was or might be sought in the rectification action had to be given effect. They permitted a distinct claim for unachieved benefits arising from alleged fraud and constructive trusteeship. They did not permit a duplicate claim concerning a liability already subject to the agreed accounting process.

2. The proposed constructive-trust claim was a new cause of action and did not arise from the same or substantially the same facts already in issue. The statutory protection in section 35 of the Limitation Act 1980 therefore did not permit the amendment once the relevant limitation period had expired. Applying Welsh Development Agency v Redpath Dorman Long Limited [1994] 1 WLR 1409, the material date was when the amendment was actually made, rather than when leave was first sought. The prohibition was absolute in the circumstances and allowed no discretion.

3. The first judgment, delivered on 13 December 2002, did not approve identified amendments. It required revised amendments to be agreed or approved later, and the matter was adjourned without either event. The amendments were consequently not made on that date. They were made only when the second judgment was delivered on 9 May 2003, after expiry of the six-year period on the claimant's accepted case.

4. The limitation issue could not be pursued through amendment of the rectification action. It could be argued and determined in the protective new action. The question of amendments was remitted to the master.

• Court of Appeal (Civil Division): Allowed the defendant's appeal on the limitation issue in [2004] EWCA Civ 412, while affirming the construction of the Tomlin order.
• High Court, Chancery Division: Deputy Judge David Donaldson QC rejected the construction objection in a judgment of 13 December 2002. On 9 May 2003 he granted permission to amend without considering the limitation objection.
• Master: On 18 July 2002, Master Bowman dismissed the original application to amend on the basis that it was inconsistent with the account agreed by the Tomlin order.