Jackson v Thompsons Solicitors (A Firm) & Ors

On an application to amend after expiry of the limitation period, a new claim may be added where Limitation Act 1980, section 32 postpones the limitation period because relevant facts were deliberately concealed. The court may determine that issue summarily where the available evidence makes the limitation defence unrealistic. Alternatively, under Civil Procedure Rules 1998, rule 17.4(2), an amendment is permissible where the new claim arises from substantially the same facts already in issue. The comparison requires regard to the totality of the facts put in issue by the defence. Additional facts or elements do not necessarily prevent amendment. An appellate court reviewing a case-management discretion should intervene only where the decision falls outside the generous ambit of reasonable disagreement.

The claimant, as assignee of claims belonging to a liquidated firm of solicitors, sought to amend his claim against the defendants. The proposed amendments alleged that the defendants had helped procure the appointment of a judge who was biased or apparently biased in relation to a group litigation order. Master Cook permitted the amendments and awarded the claimant his costs. He held that the amendments introduced new claims, but that limitation was postponed by section 32 of the Limitation Act 1980; alternatively, the claims arose from the same or substantially the same facts already in issue. The defendants appealed, challenging both conclusions and the exercise of discretion.

Appeal dismissed. The Master’s order permitting amendment was upheld.

1. Limitation. The relevant test under section 32(1)(b) of the Limitation Act 1980 was that identified in Cave v Robinson Jarvis and Rolf [2003] 1 AC 384. A claimant may rely on the provision where a fact relevant to the right of action was concealed by a positive act or withholding of information, with an intention to conceal it. The history of the non-disclosure of the March 2005 correspondence provided sufficient evidence of deliberate concealment.
2. The claimant’s efforts to obtain disclosure demonstrated that the relevant facts could not readily have been discovered with reasonable diligence. The Master therefore had sufficient material to decide that section 32 applied. His conclusion was reasonable and was not undermined by his reference to Mortgage Corporation v Alexander Johnson.
3. Same facts. The principles in Goode v Martin [2001] EWCA Civ 1899, Hemmingway v Smith Roddam [2003] EWCA Civ 1352, and The Convergence Group Plc v Chantrey Vellacott [2005] EWCA Civ 290 confirm that rule 17.4(2) requires a qualitative judgment. The court must consider the totality of the facts put in issue by the defence. New facts will often be introduced, particularly in complex litigation, but that does not prevent amendment where the new claim substantially arises from facts already in issue.
4. The defendants’ pleading placed causation and the significance of the judge’s appointment and decision centrally in issue. The proposed allegations arose from those matters and could have been pleaded initially had disclosure been given. The Master’s conclusion was within the ambit of reasonable disagreement.
5. Appellate review. The appeal was by way of review, not rehearing. The authorities, including G & G (Minors’ Custody Appeal) [1985] 1 WLR 647, Powell v Pallisers of Hereford Ltd [2002] EWCA Civ 959, and Serco Ltd (trading as Serco Docklands) v National Union of Rail, Maritime and Transport Workers and ors [2011] EWCA Civ 226, required restraint. No appealable error or decision outside the permissible range was shown.

• High Court (Queen’s Bench Division): appeal from Master Cook’s order dated 4 February 2013 dismissed. The order permitting amendment and awarding the claimant his application costs was upheld.