Mullarkey & Anor v Broad [2009] EWCA Civ 2 (21 January 2009)

Mullarkey & Anor v Broad [2009] EWCA Civ 2 (21 January 2009)

The Court of Appeal held that the appellants could not change their case on appeal to rely on section 21(1)(b) of the Limitation Act 1980, as the case at trial was presented solely on the basis of fraud under section 21(1)(a). The court was not satisfied that all relevant evidence had been adduced at trial to allow the new point to be taken without prejudice to the respondent. Accordingly, the appeal was dismissed.

Citation
[2009] EWCA Civ 2
Parties
Claimant/appellant: John Francis Mullarkey; Claimant/appellant: Ivor Goodman; Defendant/respondent: John Peter Broad
Jurisdiction
England and Wales
Judgment Date
21 January 2009
Procedural Posture
Civil Appeal / Appeal From High Court (chancery Division) to Court of Appeal
Outcome
Appeal dismissed
Legal Topics
Directors' Fiduciary Duties, Misfeasance, Constructive Trust, Limitation of Actions, Loans to Directors, Self Dealing, Section 212 Insolvency Act 1986, Section 330 Companies Act 1985
Company Law Insolvency Law Directors' Fiduciary Duties Misfeasance Constructive Trust Limitation of Actions Loans to Directors Self Dealing +2 more

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Parties

John Francis Mullarkey

Claimant/appellant

Ivor Goodman

Claimant/appellant

John Peter Broad

Defendant/respondent

Procedural Posture

Civil Appeal / Appeal From High Court (chancery Division) to Court of Appeal

Legal Issues

  1. 1 Whether the claimants could avoid the limitation defence by relying on section 21(1)(b) of the Limitation Act 1980 rather than fraud under section 21(1)(a)
  2. 2 Whether the trial judge erred in rejecting claims of misfeasance and breach of trust against the respondent
  3. 3 Whether the Court of Appeal should allow the appellants to change their case on appeal to rely on a new legal basis

Ratio Decidendi

The Court of Appeal held that the appellants could not change their case on appeal to rely on section 21(1)(b) of the Limitation Act 1980, as the case at trial was presented solely on the basis of fraud under section 21(1)(a). The court was not satisfied that all relevant evidence had been adduced at trial to allow the new point to be taken without prejudice to the respondent. Accordingly, the appeal was dismissed.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed
  • No change to the order for costs below