Libyan Investment Authority & Ors v King & Ors

A time-barred new claim under CPR r 17.4(2) may be permitted only by reference to facts which are already in issue. That requirement, implied by section 35(5)(a) of the Limitation Act 1980, excludes facts pleaded in a statement of case which has been struck out. Keeping a claim form alive does not revive a struck-out pleading as the comparator.

However, CPR rr 40.12 and 3.1(7) permit correction or variation where the form and sequence of an earlier order frustrate the judge’s manifest intention to allow a viable amended claim to be formulated. The correction in this case preserved the factual pleading pending the amendment exercise, so that permission to advance the new claims remained effective.

The claimants alleged that they lost their investment in a hotel-and-retail development joint venture. Their claims concerned alleged deceit, agency breaches, dishonest assistance and unlawful-means conspiracy.

In Libyan Investment Authority v Warwick Street (KS) LLP [2018] EWHC 2877 (Ch), HHJ Simon Barker QC struck out the Re-Amended Particulars of Claim. He nevertheless kept the claim form against the present appellants alive to allow an application for a reformulated case. In Libyan Investment Authority v King [2020] EWHC 440 (Ch), he allowed the claimants to serve Re-Re-Amended Particulars of Claim, holding that the new claims arose from substantially the same facts as the struck-out pleading.

The appeal concerned whether that comparison was permissible after the original pleading had been struck out and, if not, whether the 2018 order could be corrected or varied to give effect to the judge’s intended amendment exercise.

1. Appeal dismissed by a majority. Arnold and Floyd LJJ agreed with Nugee LJ that the appellants’ Ground 7 succeeded and that the respondents’ Ground 4 failed. Section 35(5)(a) of the Limitation Act 1980 limits CPR r 17.4(2). The rule must therefore be read as requiring the new claim to arise from facts which are already in issue on a claim for which the applicant has claimed a remedy. Facts in a pleading that has been struck out are no longer in issue and cannot be used as the statutory comparator.
2. The surviving amended claim form did not enable the respondents to rely on the struck-out Re-Amended Particulars of Claim. A claim form can itself provide the comparator where it remains extant, but the former particulars could not be used to alter the meaning of a clear claim form or restore facts no longer in issue.
3. Arnold and Floyd LJJ nevertheless upheld Ground 5 of the respondents’ notice. The October 2018 order both struck out the Re-Amended Particulars of Claim and purported to allow their further amendment. Its sequence frustrated the judge’s evident intention, expressed in the 2018 judgment, to allow the claimants to try to reformulate a viable case against the appellants using the facts then pleaded.
4. Under CPR r 40.12, the order could be corrected to reflect that first intention. Alternatively, CPR r 3.1(7) permitted variation because the formulation of the order had manifestly prevented the intended limitation issue from being considered on the proposed amendment. The corrected or varied order left the pleading available pending the amendment application. The High Court therefore had jurisdiction to grant permission for the Re-Re-Amended Particulars of Claim.
5. Nugee LJ dissented on Ground 5. In his view, the immediate striking out of the Re-Amended Particulars of Claim was deliberate and final. Neither the slip rule nor the variation power could be used to rewrite that order merely because its legal consequences later proved disadvantageous to the claimants.

• Court of Appeal (Civil Division): Appeal dismissed by majority in [2020] EWCA Civ 1690. The court corrected or varied the October 2018 order, with the result that the permission granted in March 2020 for the Re-Re-Amended Particulars of Claim stood.
• High Court: In Libyan Investment Authority v King [2020] EWHC 440 (Ch), HHJ Simon Barker QC permitted the claimants to re-amend the claim form and serve Re-Re-Amended Particulars of Claim.
• High Court: In Libyan Investment Authority v Warwick Street (KS) LLP [2018] EWHC 2877 (Ch), HHJ Simon Barker QC struck out the Re-Amended Particulars of Claim, while preserving a conditional opportunity for the claimants to seek a reformulated case against the present appellants.