Mullarkey & Anor v Broad

Mullarkey & Anor v Broad

The appeal was dismissed because the appellants sought to advance a new case on appeal (relying on section 21(1)(b) of the Limitation Act 1980 and breach of fiduciary duty absent fraud) which was not argued at trial. The court was not satisfied that the case could not have been conducted differently as regards the evidence if the new basis had been raised, and thus refused to allow the change of case on appeal.

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 / Judgment on Appeal From High Court
Outcome
appeal dismissed
Legal Topics
Director's Duties, Breach of Fiduciary Duty, Misfeasance, Constructive Trust, Limitation of Actions
Company Law Insolvency Law Director's Duties Breach of Fiduciary Duty Misfeasance Constructive Trust Limitation of Actions

Case Brief

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Parties

John Francis Mullarkey

Claimant/appellant

Ivor Goodman

Claimant/appellant

John Peter Broad

Defendant/respondent

Procedural Posture

Civil Appeal / Judgment on Appeal From High Court

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 the claims based on breach of fiduciary duty and misfeasance by the director in relation to company property and loans

Ratio Decidendi

The appeal was dismissed because the appellants sought to advance a new case on appeal (relying on section 21(1)(b) of the Limitation Act 1980 and breach of fiduciary duty absent fraud) which was not argued at trial. The court was not satisfied that the case could not have been conducted differently as regards the evidence if the new basis had been raised, and thus refused to allow the change of case on appeal.

Court Disposition

appeal dismissed

Orders

  • The appeal is dismissed.
  • The order for costs below stands.