Qatar Investment and Project Development Holding Co & Anor v Phoenix Ancient Art S.A. & Ors

Permission to amend after expiry of a limitation period requires the court to determine whether the amendment is arguably out of time, whether it adds a new cause of action, whether that cause arises from the same or substantially the same facts, and whether permission should be granted. A defendant must first raise a prima facie limitation defence. The claimant then has to show that the defence is not reasonably arguable. Where fraud or deliberate concealment is properly alleged, limitation may be postponed until discovery or when discovery could reasonably have occurred. Amendments alleging fraud should be permitted where they are coherent, sufficiently particularised, supported by an arguable factual basis, and proportionate in the circumstances.

The claim concerned the alleged inauthenticity and false provenance of a Byzantine statuette purchased by the claimants from Phoenix Ancient Art. The claimants applied to amend their pleadings to add claims in deceit, fraudulent misrepresentation and unlawful means conspiracy against Phoenix and three individuals.

The application followed an order joining the additional defendants and was opposed on jurisdiction, limitation, pleading and abuse grounds. The central issues were whether the new claims were arguably time-barred, whether they arose from the same facts as the existing contract and negligence claims, and whether the amendments should be allowed.

1. Amendment principles. The court applied the discretionary balance required by the overriding objective. Relevant considerations included lateness, explanation for delay, prejudice, duplication of costs, clarity, particularity, evidential support and proportionality. The amendment concerning the value of an authentic statuette with false provenance merely clarified and particularised the existing case and was permitted.
2. Jurisdiction. The defendants had not adduced evidence identifying the foreign law said to govern the torts or explaining its effect on jurisdiction and limitation. The court accepted the direct evidence indicating that the alleged torts were subject to English law and did not disturb the earlier joinder order.
3. Limitation and new causes of action. The proposed fraud and conspiracy claims were new causes of action and did not arise from the same or substantially the same facts as the existing negligence and contract claims. Applying Mulalley & Co v Martlet Homes, the court considered four questions: whether the claims were arguably out of time; whether they added new causes of action; whether they arose from the same facts; and whether discretion should be exercised.
4. Burden on limitation. Under Limitation Act 1980 section 35 and CPR r.17.4, the defendants had to raise a prima facie limitation defence. The claimants then had to show that the defence was not reasonably arguable. The defendants failed to identify any foreign limitation regime or provide evidence supporting one.
5. Fraud and concealment. The pleaded allegations fell within section 32 of the Limitation Act 1980. On the evidence, the alleged fraud or deliberate concealment could not reasonably have been discovered before disclosure of the Swiss Report in 2022. The standard six-year limitation defence was therefore not reasonably arguable at the amendment stage.
6. Disposition. The amendments were coherent, sufficiently particularised, carried a real prospect of success, and raised serious issues proportionate to the claim. Permission was granted for the contested amendments, without prejudice to the fourth defendant’s right to object.

First-instance decision on an application to amend pleadings and related jurisdiction issues. The judgment records an earlier order of Master McCloud dated 30 March 2023 joining the second to fourth defendants and permitting service of amended pleadings.