Claim No: BL-2022-002046 - [2025] EWHC 2534 (Ch)

In relation to these claims, by the APOC, the claimant proposes to plead, for the first time, that:

In the POC, those First Period conduct matters which the claimant pleads are no more than background to the circumstances of his resignation which, in the POC, are relevant to the claimant’s claim in relation to the CDO Monies Commitment.

Because the claimant proposes to claim for psychiatric injury arising out of a breach of duty, the three year limitation period in s.11 of the Limitation Act 1980 applies to all the proposed claims I am now considering. As McGee: Limitation Periods (9^th ed) explains, at para.8-006:

“The three-year period applies where the damages include any claim for personal injuries. Thus the inclusion of a personal injuries element, however slight, means that the three-year period applies to the whole action. Where the personal injuries claim is a small part of the claimant’s total loss it may therefore be thought more prudent to forego it. This is not problematic where the original claim omits the personal injuries. Where the original claim does include personal injuries, the claimant may subsequently seek to amend the particulars of the claim by removing the personal injuries element if it becomes clear that there is a limitation problem with that part of the claim…”

If the claimant foregoes his claim of psychiatric injury, the 12 year limitation period applying to actions on deeds (the LLP agreement) would apply. Amendments to the POC were not proposed until October 2024, more than 12 years after the claimant’s 18 July 2012 resignation as a member of the LLP. The claimant therefore seeks to bring the claims outside an applicable limitation period.

The claims are, as I have explained, new claims, and they do not arise out of the same facts or substantially the same facts as are already in issue in respect of which the claimant has already claimed a remedy in the proceedings. There is, presently, no personal injuries claim. Nor is there already in issue the losses for which the claimant now proposes to claim. Most importantly, the POC do not allege that the first defendant has been in breach of the obligations the claimant now relies on.

It follows therefore that I cannot give permission for the proposed amendments to be made. If I gave permission the defendants would be placed in a position where they “will be obliged, after the expiry of the limitation period, to investigate facts, and obtain evidence of matters, completely outside the ambit of, and unrelated to, the facts which [they] could reasonably be assumed to have investigated for the purpose of defending the unamended claim”.

Principally in relation to the claimant’s proposed personal injury claim, relying on what she referred to as the “Mastercard” exception (see WM Morrison Supermarkets plc v. Mastercard Incorporated [2013] EWHC 3271 (Comm)), Ms Gleyze argued, as I have understood her submission, that I should not determine whether any limitation period for the proposed new claims has passed (or whether or not it is reasonably arguable that any has passed). Instead, I understood her to argue, I should permit the proposed amendments, but limit any recovery by the claimant to a period equivalent to the relevant limitation period measured back from the date of the claimant’s informal amendment application and that I should leave it to a trial judge to determine whether or not the claims are in fact statute-barred once the defendants had pleaded a limitation defence. There are a number of fundamental difficulties with this submission.

First, it is inconsistent with s.35(3) of the Limitation Act 1980, which provides:

“Except as provided by section 33 of this Act or by [CPR 17.4], neither the High Court nor the county court shall allow a new claim…to be made in the course of any action after the expiry of any time limit under this Act which would affect a new action to enforce that claim.”

Secondly, if I have decided that the claims can be brought, despite the defendants taking a limitation point on the present applications (and despite, I have understood, the claimant having accepted that the claims are statute-barred under the relevant primary limitation periods), it may be that a trial judge could not find that such claims are in fact statute-barred (which would be significant if a twelve year, rather than a three year, limitation period applies to the new claims).

Thirdly, a claim for personal injury losses in the three years preceding the claimant’s amendment application would not benefit him because he has not suffered any such loss in that period. If I adopted Ms Gleyze’s approach, what would be possible (because the whole of the claim would not have been summarily disposed of), would be for the claimant then to make a further amendment application coupled with an application under s.33 of the Limitation Act 1980 (“a s.33 application”) for an order extending the limitation period to effectively allow him to claim personal injury losses for the period when he says he suffered them. Indeed, I had the sense, during the hearing, that Ms Gleyze’s argument was really a valiant attempt to ensure that the claim has some continuing vitality so that the claimant could make a s.33 application which has not yet made.

Fourthly, it is inconsistent with the overriding objective to not determine an issue before me (i.e., whether or not the proposed claims I am now considering satisfy the requirements of CPR 17.4), with the effect that claims which the CPR mandates should not proceed to trial could be allowed to do so; particularly where, had a s.33 application already been made, Ms Gleyze’s submission might have been wholly redundant.

Fifthly, in any event, I am doubtful that the Mastercard exception is a basis for Ms Gleyze’s submission. Because her submission was not foreshadowed in her skeleton argument, both she and Mr Kokelaar could only provide me with limited assistance on the question of what was actually decided in Mastercard (and the cases which have referred to it). As I understand Mastercard, the judge (Field J) decided no more than that, when a claimant wishes to make a new claim for a continuing wrong (see [13] of the judgment), to the extent that the wrong has been committed within an existing limitation period permission to amend can be given under CPR 17.1, because, to that extent, there is no question of the limitation period having expired, s.35(3) of the Limitation Act 1980 being engaged, or CPR 17.4 applying. A typical example may be a trespass which is said to be continuing. It would be conventional for a court to permit an amendment to allow such a claim to be brought limited to losses sustained within the then existing limitation period, there being no question of the claim being statute-barred to that extent. That circumstance is not this case. There was no continuing wrong in the twelve years before the claimant’s amendment application.

In the circumstances, it is not appropriate for me to depart from the approach mandated by CPR 17.4 or, as I have said, to permit the proposed amendments.