Bajwa & Ors V Furini (2004)

A judge had no power to allow the claimant to amend her statement of claim in order to raise a new cause of action because the limitation period had expired.

The defendant (B) appealed against an order allowing the claimant (F) to amend her statement of claim. F's father (K) died in Pakistan in 1991. At that time he was the registered proprietor of eight freehold properties situated in the UK. After K's death those properties were transferred to the defendants by transfers purportedly executed by K or under powers of attorney. F obtained a grant of letters of administration of K's estate and, as administratrix, claimed that all the transfers and powers of attorney were forgeries and sought rectification of the register.

The first defendant (B) then produced a purported will of K and claimed revocation of the grant of letters of administration to F and sought a grant to himself and an account of F's dealings with K's estate. F's defence to the revocation action denied the authenticity of the will and alleged that B had forged it. It was agreed that the rectification action should be stayed pending the outcome of the revocation action. In March 2002 a Tomlin order was made by consent in the revocation action providing for B to discontinue his claims for revocation and for an account to be taken of F's dealings with the estate and for the revocation action to be consolidated with the rectification action.

In June 2002 F applied to amend her statement of claim in the rectification action to allege that B himself had forged the transfers and powers of attorney. The judge in December 2002 concluded that such amendment was permitted as a matter of construction of the Tomlin order which was expressed to be made without prejudice to any relief which was or might be sought in the rectification action. B then took the point that the amendments raised new causes of action which were arguably statute-barred. The judge refused to consider B's objection to the amendments based on limitation and in May 2003 granted permission to amend.

HELD: The claim that B was the forger was a new cause of action within Limitation Act 1980 s.35 and did not arise out of the same facts as were already in issue. F accepted that for the purposes of Limitation Act 1980 s.32(1) she had discovered B's alleged forgeries or could with reasonable diligence have discovered them by early 1997. The amendments were actually made when the judge gave permission in May 2003. They were not made in December 2002. The judge had no power to allow the amendments in May 2003 since leave to amend in order to raise a new claim could not be given where the limitation period had expired (Welsh Development Agency v Redpath Dorman Long Ltd (1994) 1 WLR 1409 applied).

Appeal allowed.

Civil Procedure

CA (Civ Div) (Mummery LJ, Maurice Kay LJ, Sir Martin Nourse) 2/4/2004

LTL 2/4/2004 (Unreported elsewhere)

Document No.: AC01081

Bajwa & Ors V Furini (2004)

A judge had no power to allow the claimant to amend her statement of claim in order to raise a new cause of action because the limitation period had expired.

The defendant (B) appealed against an order allowing the claimant (F) to amend her statement of claim. F's father (K) died in Pakistan in 1991. At that time he was the registered proprietor of eight freehold properties situated in the UK. After K's death those properties were transferred to the defendants by transfers purportedly executed by K or under powers of attorney. F obtained a grant of letters of administration of K's estate and, as administratrix, claimed that all the transfers and powers of attorney were forgeries and sought rectification of the register.

The first defendant (B) then produced a purported will of K and claimed revocation of the grant of letters of administration to F and sought a grant to himself and an account of F's dealings with K's estate. F's defence to the revocation action denied the authenticity of the will and alleged that B had forged it. It was agreed that the rectification action should be stayed pending the outcome of the revocation action. In March 2002 a Tomlin order was made by consent in the revocation action providing for B to discontinue his claims for revocation and for an account to be taken of F's dealings with the estate and for the revocation action to be consolidated with the rectification action.

In June 2002 F applied to amend her statement of claim in the rectification action to allege that B himself had forged the transfers and powers of attorney. The judge in December 2002 concluded that such amendment was permitted as a matter of construction of the Tomlin order which was expressed to be made without prejudice to any relief which was or might be sought in the rectification action. B then took the point that the amendments raised new causes of action which were arguably statute-barred. The judge refused to consider B's objection to the amendments based on limitation and in May 2003 granted permission to amend.

HELD: The claim that B was the forger was a new cause of action within Limitation Act 1980 s.35 and did not arise out of the same facts as were already in issue. F accepted that for the purposes of Limitation Act 1980 s.32(1) she had discovered B's alleged forgeries or could with reasonable diligence have discovered them by early 1997. The amendments were actually made when the judge gave permission in May 2003. They were not made in December 2002. The judge had no power to allow the amendments in May 2003 since leave to amend in order to raise a new claim could not be given where the limitation period had expired (Welsh Development Agency v Redpath Dorman Long Ltd (1994) 1 WLR 1409 applied).

Appeal allowed.

Civil Procedure

CA (Civ Div) (Mummery LJ, Maurice Kay LJ, Sir Martin Nourse) 2/4/2004

LTL 2/4/2004 (Unreported elsewhere)

Document No.: AC01081