Summary

Proposed amendments to the statement of claim by the claimant outside the applicable limitation periods were to be disallowed as they sought to raise new causes of action on different facts.

Facts

Defendant's appeal against the order of Master Moncaster allowing amendments to the claimant's statement of claim, the essence of which was the assertion of new contractual and fiduciary duties (with consequential additions as to breach, damage and causation) in respect of a mortgage loan which was defaulted upon. The defendant firm of solicitors had acted on behalf of the claimant lender in that transaction. The defendant objected to the amendments on the ground that the applicable limitation periods expired in July 1996. The original statement of claim alleged two duties: (a) a contractual duty under the implied terms of the retainer; and (b) a common law duty of care in negligence. It went on to allege breach of duty in three respects, all of which amounted to an alleged failure to pass on pertinent information. Causation and loss were then pleaded. In 1998, the defendant accepted certain amendments asserting an additional fiduciary duty. In 1999, the claimant sought further to amend the pleadings to introduce: (i) a new contractual duty based on the express terms of a contractual document; (ii) a further nine alleged breaches of the implied contractual duty; and (iii) six additional fiduciary duties, the alleged breaches of which were to be found in the 'new' breaches at (ii) above. The Master allowed all the amendments.

Held

(1) In attempting to assert a new duty under the express terms of a contractual document (the plaintiff's Notes for Solicitors, which had not been pleaded before), the plaintiff asserted a new cause of action arising from facts newly pleaded. By s.35 Limitation Act 1980, this amendment could not be permitted, following Paragon Finance plc v D B Thakerar & Co (1999) 1 All ER 400 and Darlington Building Society v O'Rourke James Scourfield & McCarthy (1999) 1 Lloyd's Rep PN 33. (2) A proposed amendment which detailed three specific matters which the defendant was allegedly bound to inform the plaintiff as part of the previously pleaded duty of acting with skill and care, would be permitted. (3) The nine further allegations of breach were to be treated as a package. Both their number and their terms justified the conclusion that new causes of action were being asserted which arose from new facts. (4) The same reasoning applied to the additional fiduciary duties.

Appeal allowed.