The rule that in the case of a dispute as to whether a claim was time barred, a fresh action had to be begun to allow the proposition to be tested, did not apply where the delay arose from some deliberate concealment of the cause of action by the proposed defendant, and the deliberateness was itself an issue in the action. Mr David Donaldson QC refused permission to amend to plead breaches of fiduciary duty after expiry of the prima facie limitation period, saying: ‘plainly the deliberateness of a breach of duty can rarely, if ever, be determined in advance of the question whether there was a breach at all. In the case of an amendment pleading such a breach as a cause of action after expiry of the primary limitation period, that would normally mean leave to amend should be refused. That can readily be seen in a case where the plaintiff seeks to raise a new case of breach of contract, rebutting limitation by the suggestion of deliberate breach; but there the deliberateness would not be an essential element of the breach. The position is less obvious where the deliberateness of the breach is an essential element of the cause of action and is therefore pleaded as such as part of the substantive claim; for in such a case without the deliberateness the claim will fail anyway and the limitation defence adds nothing.
there appear to be difficult questions . . as to what ‘deliberate commission of a breach of duty’ would mean and involve in the present case. These would include such questions as precisely what kind of mental state is included in the adjective ‘deliberate’ and what that would amount to in the present case. Does this require consciousness that the conduct is in breach, or recklessness as to whether it is in breach or alternatively, consciousness that the conduct is in some way wrong or recklessness as to that? Or is it sufficient that the acts are intentional without reference to their quality as breaches of duty? ‘
Judges:
Mr David Donaldson QC
Citations:
Times 22-Aug-1999
Jurisdiction:
England and Wales
Cited by:
Cited – Mortgage Express v Abensons Solicitors (A Firm) ChD 20-Apr-2012
The claimant lender sought damages against the defendant solicitors alleging negligence and breach of fiduciary duty by them in acting for them on mortgage advances. The defendants now argued that the allowance of an amendment to add the allegation . .
Lists of cited by and citing cases may be incomplete.
Limitation
Updated: 05 June 2022; Ref: scu.83869