Flavio de Carvalho Pinto Viegas & Ors v The Estate of José Luis Cutrale & Anor

On an application to disallow a pre-service amendment under CPR r.17.2, the court must consider both whether the defendant has a reasonably arguable limitation defence and whether relation back would prejudice that defence. Where the defendant’s pleaded case is that the original claim was already out of time, relation back causes no such prejudice.

A claim issued in the name of a deceased person is a nullity. It cannot be revived or cured by substituting a personal representative or heir. In English conflict of laws, claims concerning assets situated in England are ordinarily part of estate administration and require an English grant of representation. Brazilian heirs may nevertheless have concurrent standing under Brazilian law before distribution, but that does not alter the English characterisation of the proceedings.

The defendants applied to strike out or disallow amendments in two large group claims concerning an alleged Brazilian orange-juice cartel. The applications concerned limitation, claims issued in the names of deceased persons, the need for English grants of representation, the authority of solicitors, and amendments adding or substituting claimants.

The court considered whether the limitation objections were sufficiently arguable, whether the amendments should relate back, whether claims by deceased persons were nullities, and how English conflict-of-laws principles interacted with Brazilian succession law. The court also considered whether relief from sanctions was required because the applications were made outside the 14-day period in CPR r.17.2(2).

1. Limitation and relation back. The test under CPR r.17.2, derived from Welsh Development Agency and approved in Chandra, requires consideration of whether the defendant has a reasonably arguable limitation defence and whether that defence would be prejudiced by relation back. Cameron Taylor did not displace that two-part approach. The defendants’ pleaded case was that all claims were time-barred by 2009. Accordingly, relation back to 2019 could not prejudice that defence, and the limitation-based application to disallow the amendments was refused.
2. Relief from sanctions. CPR r.17.2(2) required an application within 14 days. A pending jurisdiction challenge did not justify implying an extension. The defendants could have applied while expressly reserving their jurisdiction objection. Applying Denton, the delay was lengthy, lacked good reason, and would unfairly deprive claimants of the opportunity to issue protective proceedings. Relief from sanctions was refused.
3. Deceased claimants. Claims issued in the names of deceased persons were nullities. Applying Kimathi and Jogie, a nullity could not be revived or cured by substitution under CPR r.17.1. The relevant claims were struck out. AIG was not followed because MOL held it wrongly decided.
4. Representation and succession. Under English conflict-of-laws principles, the question whether the claims concerned administration or succession was governed by English law. Applying Jennison and High Commissioner for Pakistan, claims concerning causes of action forming part of an estate situated in England were matters of administration and required an English grant of representation until the litigation rights had been transferred to an heir in the Brazilian Formal de Partilha. Brazilian law was relevant to succession, but the principle of droit de saisine did not alter that English characterisation.
5. Brazilian heirs and authority. The court preferred Professor Schenk’s evidence and found that heirs had concurrent standing under Brazilian law before distribution, including while inventory proceedings were open or before they commenced. They could therefore authorise solicitors to act. Assignments of hereditary rights required a public deed; prior judicial authorisation was not required where there was one heir or all heirs consented. The consequences of the findings were reserved for a consequential hearing.