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

An amendment introducing a new claim should be refused or disallowed on limitation grounds only where relation back creates a real prospect of prejudicing a limitation defence. An arguable limitation defence alone is insufficient.

A foreign heir who has no individualised, absolute interest in an English chose in action is seeking to administer the deceased's estate, rather than enforcing a completed succession. The heir must therefore obtain an English grant of representation.

A valid claim form may be amended before service to add representatives of deceased persons, despite the original claims in the deceaseds' names being nullities. A person named only as an estate's representative cannot, however, convert that representative claim into a personal claim where the rules governing new parties are unsatisfied.

Brazilian orange farmers alleged that the defendants participated in an unlawful cartel which depressed prices in the Brazilian orange market. The Viegas claim form was amended before service to add 1,361 claimants. Many claims also concerned causes of action formerly belonging to farmers who had died.

The Commercial Court declined to disallow the pre-service amendments but struck out claims pursued by foreign heirs who had not obtained English grants of representation. It nevertheless preserved possible personal claims and claims based on lifetime donations through two carve-outs in its order: [2023] EWHC 1896 (Comm); [2023] EWHC 2329 (Comm).

Both sides appealed. The principal questions concerned limitation prejudice through relation back, the time limit and sanctions governing applications under CPR 17.2, the amendment of claims originally naming deceased persons, the characterisation of foreign heirs' standing, and the validity of the carve-outs.

1. The defendants' limitation appeal was dismissed. An amendment introducing a new claim should be refused or disallowed where there is a prospect that relation back will prejudice the defendant. An arguable limitation defence, without such prejudice, is insufficient. The defendant's position must be worse than it would have been had a fresh claim been issued on the amendment date.

   The court must consider the pleadings of both sides and any other material bearing on when limitation could have expired. Any real prospect of prejudice suffices, although there must be a solid factual basis for it. Such a prospect initially existed here. The claimants' undertaking to treat each amendment as effective only from its actual date removed it, making permission for the late CPR 17.2 application unjust.

2. CPR 17.2(2)'s 14-day period applies notwithstanding an unresolved jurisdiction challenge. A defendant may seek an extension or make a conditional application without unequivocally submitting to the jurisdiction. The rule contains neither an express nor an implied sanction. A late application is therefore governed by the overriding objective, although considerations resembling the Denton stages may remain relevant.

3. A valid, unserved claim form may be amended under CPR 17.1(1) to add living representatives as claimants. Although claims originally advanced in the names of deceased persons are nullities, the whole claim form is not a nullity where it also contains valid claims. The amendments concerning 12 deceased persons were properly analysed as additions to the valid claim form rather than attempts to revive null claims.

4. The claimants' appeal was dismissed. English conflicts law distinguishes administration from succession. Collection of assets and payment of debts concern administration; distribution of the residue concerns succession. Before Brazilian sharing, an heir has no individualised, absolute interest in a cause of action and any recovery remains part of the common inheritance. The heirs were therefore seeking to administer English-situated choses in action and required English grants of representation.

5. The judge was entitled to strike out the heirs' claims rather than await grants and possible applications under CPR 17.4(4). That provision is a limited reform applicable where limitation has expired, not a general power to validate proceedings commenced without title. The long delay, absence of grants in almost every case and absence of applications under the rule justified strike-out.

6. The defendants' carve-outs appeal was allowed. A person identified only as representing an estate cannot convert that claim into a personal claim by deleting the representative description. That would introduce a new claim by a new claimant without satisfying CPR 19.6. Paragraphs 5 and 6 of the September 2023 order were deleted.

Lewis and Nugee LJJ agreed with Newey LJ.

1. Court of Appeal (Civil Division): In [2024] EWCA Civ 1122, dismissed the defendants' appeal concerning the pre-service amendments, dismissed the claimants' appeal concerning deceased persons and foreign heirs, and allowed the defendants' appeal against the two carve-outs.
2. Commercial Court: In [2023] EWHC 1896 (Comm), declined to disallow the amendments but held that claims pursued without the necessary English grants should be struck out. In [2023] EWHC 2329 (Comm), dealt with consequential matters and made the order containing the disputed carve-outs.