Barros Mattos Junior v & Ors

Amendments should generally be permitted where they enable the real dispute to be tried and any prejudice can be compensated in costs, provided the amendment does not materially harm the administration of justice. Complex and developing questions of applicable law should ordinarily be left for trial where they may depend on facts and foreign-law evidence. For limitation purposes, English procedural law determines whether an amended claim arises from the same or substantially the same facts as an existing claim. A claim based on foreign law is not necessarily a new cause of action where its factual and legal basis remains materially unchanged. A common-law tracing issue involving allegedly mixed funds was unsuitable for summary determination at this stage.

The claimants, assignees of a Brazilian bank, pursued restitutionary and related claims against the forty-second defendant concerning approximately $6.5 million transferred into his Swiss bank account. They sought permission to amend their particulars of claim to plead Nigerian law as the primary applicable law, Swiss law in the alternative, and additional allegations concerning knowledge and money laundering.

The defendant opposed amendment on grounds including limitation, applicable law, forum conveniens, the alleged absence of a viable tracing claim, and pleading deficiencies. The court was required to decide whether the proposed claims were arguable, whether they constituted new causes of action for limitation purposes, and whether permission to amend should be granted.

1. Amendment. Permission to amend was granted. The overriding objective favoured adjudication of the real dispute, and any compensable prejudice could be addressed through costs. The proposed amendments were not unarguable.
2. Applicable law. The law governing receipt-based restitutionary obligations remained an uncertain and developing subject. Rule 200 of Dicey and Morris did not operate mechanically by applying the law of the place where a bank account was maintained. The circumstances, including the Nigerian agreement, Nigerian payment, and delivery of dollars in Switzerland, required fuller factual and expert examination. The applicable-law issue, including the proposed route through Swiss conflict rules, should therefore be left for trial.
3. Limitation and new claims. Under section 35 of the Limitation Act 1980, read with CPR 17.4 and the Foreign Limitation Periods Act 1984, English procedural law determined whether the amended claims arose from the same or substantially the same facts. The Nigerian and Swiss claims rested on the same factual basis as the existing claim and were not new causes of action. The additional allegation concerning the defendant’s introduction of Asnani to Citibank Geneva was, at the highest level of abstraction, merely a particular of knowledge.
4. Tracing. The objection that the funds were mixed and therefore incapable of being traced at common law raised a controversial issue unsuitable for determination on the amendment application. The issue could be considered at trial.
5. Forum and pleading objections. The proposed amendments were not refused on forum conveniens grounds. The essential factual focus remained the defendant’s dealings in Nigeria and his contacts with Citibank Geneva. Other pleading objections could be addressed through requests for further information.
6. Order. The amendments were allowed.

This was a first-instance application to amend pleadings. The judgment records an earlier refusal by Sir Andrew Morritt V-C on 22 May 2003 to stay the proceedings in favour of Nigeria, but the present court did not reopen that decision.