Mortgage Express v Abensons Solicitors (a firm)

Mortgage Express v Abensons Solicitors (a firm)

The amendments allowed by the Master in relation to the claim concerning loans for Units 1-4 may deprive the defendant of an arguable limitation defence, as not all breaches of fiduciary duty are necessarily deliberate for purposes of s32(2) Limitation Act 1980. Therefore, the Master's order is set aside for Units 1-4; limitation issues must be determined at trial.

Parties
Claimant/respondent: Mortgage Express (an unlimited company); Defendant/appellant: Abensons solicitors (a firm)
Jurisdiction
England and Wales
Judgment Date
20 April 2012
Procedural Posture
Appeal / Appeal From Order Allowing Amendment of Particulars of Claim
Outcome
Appeal allowed in part; Master's order set aside as regards amendments for Units 1-4.
Legal Topics
Limitation of Actions, Breach of Fiduciary Duty, Solicitors' Duties, Deliberate Concealment
Civil Procedure Professional Negligence Fiduciary Duty Limitation of Actions Breach of Fiduciary Duty Solicitors' Duties Deliberate Concealment

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Parties

Mortgage Express (an unlimited company)

Claimant/respondent

Abensons solicitors (a firm)

Defendant/appellant

Procedural Posture

Appeal / Appeal From Order Allowing Amendment of Particulars of Claim

Legal Issues

  1. 1 Whether amendments to plead breach of fiduciary duty deprive defendant of limitation defence
  2. 2 Whether deliberate breach of fiduciary duty necessarily constitutes deliberate concealment under s32 Limitation Act 1980
  3. 3 Mental element required for breach of fiduciary duty and deliberate concealment

Ratio Decidendi

The amendments allowed by the Master in relation to the claim concerning loans for Units 1-4 may deprive the defendant of an arguable limitation defence, as not all breaches of fiduciary duty are necessarily deliberate for purposes of s32(2) Limitation Act 1980. Therefore, the Master's order is set aside for Units 1-4; limitation issues must be determined at trial.

Court Disposition

Appeal allowed in part; Master's order set aside as regards amendments for Units 1-4.

Orders

  • Claimant's amendments in relation to Units 1-4 disallowed.
  • Claimant may consolidate separate claim for Units 1-4 with existing proceedings; limitation to be determined at trial.