Colliver v Papworth & Anor [2021] EWHC 2465 (Ch) (10 September 2021

Colliver v Papworth & Anor [2021] EWHC 2465 (Ch) (10 September 2021

The claimant's proposed amendments, though time-barred on primary limitation grounds, arise out of the same or substantially the same facts as those now in issue due to the defendants' amended defence. The amendments are not fanciful and have a real prospect of success. The balance of justice and the overriding objective favour granting permission to amend, as the factual investigation required overlaps substantially with that already necessitated by the amended defence. The amendment to plead dishonest breach of fiduciary duty is permitted, subject to clarity in pleading.

Citation
[2021] EWHC 2465 (Ch)
Parties
Claimant: Anthony Robert Colliver; First Defendant: Jonathan Papworth; Second Defendant: Simon Charles Papworth
Jurisdiction
England and Wales
Procedural Posture
Civil Business and Property / Application to Amend Particulars of Claim
Outcome
Application granted
Legal Topics
Fraudulent Misrepresentation, Breach of Fiduciary Duty, Limitation of Actions, Amendment of Pleadings, Rescission, Release and Settlement Agreements
Contract Law Equity and Trusts Civil Procedure Fraudulent Misrepresentation Breach of Fiduciary Duty Limitation of Actions Amendment of Pleadings Rescission +1 more

Case Brief

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Parties

Anthony Robert Colliver

Claimant

Jonathan Papworth

First Defendant

Simon Charles Papworth

Second Defendant

Procedural Posture

Civil Business and Property / Application to Amend Particulars of Claim

Legal Issues

  1. 1 Whether the claimant should be granted permission to amend the particulars of claim to plead fraudulent misrepresentation and rescission of the Deed of Agreement and Release.
  2. 2 Whether the proposed amendments are barred by limitation under the Limitation Act 1980.
  3. 3 Whether the amendments arise out of the same or substantially the same facts as the existing claim under CPR 17.4(2).

Ratio Decidendi

The claimant's proposed amendments, though time-barred on primary limitation grounds, arise out of the same or substantially the same facts as those now in issue due to the defendants' amended defence. The amendments are not fanciful and have a real prospect of success. The balance of justice and the overriding objective favour granting permission to amend, as the factual investigation required overlaps substantially with that already necessitated by the amended defence. The amendment to plead dishonest breach of fiduciary duty is permitted, subject to clarity in pleading.

Court Disposition

Application granted

Orders

  • Claimant granted permission to amend particulars of claim to plead fraudulent misrepresentation and rescission of the Deed of Agreement and Release.
  • Claimant granted permission to amend particulars of claim to plead dishonest breach of fiduciary duty, subject to clarity in pleading.