Ballinger and another v Mercer Ltd and another
| Jurisdiction | England & Wales |
| Judgment Date | 2014 |
| Date | 2014 |
| Court | Court of Appeal (Civil Division) |
Practice - Pleadings - Amendment - Expiry of limitation period - Trustees of occupational pension scheme bringing professional negligence claim against scheme’s actuaries - Defendants relying on limitation defence but reserving position on whether claims statute-barred until information on earliest date claimants had knowledge of right to bring action in damages - Claimants’ application to amend particulars of claim opposed in relation to three categories of amendments raising new causes of action - All contested claims brought outside primary limitation period - Whether defendants having reasonably arguable case on limitation - Burden of proof where prima facie limitation defence shown - Whether opposed claims arising out of same or substantially same facts as in issue in original action -
The claimants, the present trustees of an occupational pension scheme, issued a claim form in July 2012 for damages for professional negligence and/or breach of tortious duty against the defendants who had between 1 January 1993 to 1 January 2004 provided administrative and actuarial services to the scheme’s then trustees. The scheme, which had closed to further accrual of benefits in 2001, provided contracted-out final salary benefits to former employees of an insurance broking company which had gone into liquidation following the sale of its business in 2010 with the scheme substantially in deficit. The claimants alleged that the defendants had been negligent in the preparation of actuarial valuation reports by which they had valued the assets and liabilities of the scheme and given advice to the trustees regarding the level at which they should seek contributions to the scheme from the company, and that, in consequence, the contributions sought had been lower than they ought to have been. Since the trustees were no longer able to obtain further contributions from the company, the claim was for the present value of the contributions which would have been made had the trustees been properly advised as to the liabilities of the scheme and the level of contributions required from the company. The particulars of claim alleged negligence in relation to three actuarial valuation reports in 1996, 1999 and 2001. In their defence served in August 2013 the defendants contended that any cause of action for negligence was statute-barred, or reserved their position on limitation pending the provision of further information as to the earliest date on which the trustees first had knowledge as to their right to bring an action for the purposes of section 14A of the Limitation Act 1980F1, as inserted. The claimants responded to the defendants’ request for further information by stating that the earliest date on which they had the relevant knowledge was shortly after 31 August 2007. In November 2013 the claimants applied to amend the particulars of claim. Three categories of amendments were opposed, including the addition of allegations concerning the 2002 actuarial valuation reports which had not previously been in issue. All of the contested claims were outside the primary limitation period of six years. It was the defendants’ case that, given the claimants’ response to the request for further information as to the earliest date on which they had the relevant knowledge, the contested claims had become statute-barred in August 2010. It was accepted that each of the opposed amendments raised a new cause of action and thus a new claim for the purposes of section 35 of the 1980 Act and CPR r 17.4F2, which permitted, among other things, an amendment to a statement of case to introduce a new cause of action after the expiry of the applicable limitation period where the new claim arose out of the same facts or substantially the same facts as an existing claim in the proceedings. On the application the judge held that (i) the defendants had a reasonably arguable case that the new claims in the three categories were all statute-barred, (ii) one category raised an entirely separate allegation for the first time and should not be permitted, but (iii) the other two categories arose out of the same or substantially the same facts as those already in issue. He accordingly grant permission to amend pursuant to CPR r 17.1(2)(b) in respect of those two categories. The defendants appealed against the judge’s decision to permit the two categories of claims to be added, in so far as they related to the 2002 valuations, and the claimant cross-appealed on limitation and the third category of amendments which the judge had held not to arise out of the same or substantially the same facts.
On the appeal and the cross-appeal—
Held, (1) that where a claimant applied to amend a statement of case to introduce a new claim outside the primary limitation period, because of the doctrine of relation back introduced by section 35(1) of the Limitation Act 1980 the claimant was in effect inviting the court to make a summary determination that a limitation defence was not available; that since, where such a defence was dependent on the resolution of factual issues which were seriously in dispute, it could not be determined summarily but had to go to trial, it was only appropriate to deprive a defendant of a prima facie limitation defence at the interlocutory stage if the claimant could discharge the burden of showing that the defence was not reasonably arguable; that for the purposes of section 14A of the Limitation Act 1980 the court was concerned not just with the claimant’s actual knowledge at a certain date but also with knowledge which he might reasonably have been expected to acquire, including knowledge ascertainable with appropriate expert advice where it would have been reasonable to seek such advice; that it followed that it was not sufficient for the claimant to assert a date of knowledge without addressing the issue of whether it would have been reasonable to have taken expert advice earlier as to the 2002 valuations, particularly in view of the common errors identified in relation to the first three valuations; and that, accordingly, the claimants had not shown that the defendants had no reasonably arguable limitation defence to the new claims, and so permission to amend should not have been given pursuant to CPR r 17.1(2)(b) (post, paras 25– 30, 32, 50, 51).
(2) Allowing the appeal and dismissing the cross-appeal, that, where a claimant failed to show that the defendants had no reasonably arguable limitation defence, the court had, by CPR r 17.4(2), to consider whether the proposed amendments arose out of the same, or substantially the same, facts as those already in issue in the pleaded claims so that any cause of action arising out of factual issues to be litigated between the parties could be determined but the defendant would not be obliged after the expiry of the limitation period to investigate facts and obtain evidence of matters outside the ambit of and unrelated to those facts; that the judge had not carried out a sufficient analysis, in respect of the amendments which he had allowed, of the extent to which the defendants would be required by the new claims to embark on an investigation of facts which they would not previously have been concerned to investigate; that since the 2002 valuations had been produced at a different time from earlier ones, in different conditions, in different form and on the basis of different data and different assumptions following the closure of the scheme to further accrual of benefits in 2001, the two categories of new claims in so far as they related to the 2002 valuations did not arise out the same or substantially the same facts and the amendments to plead them ought not therefore to be permitted; and that since the third category of amendments raised for the first time an entirely separate allegation not previously raised in any form the judge had been correct to disallow them (post, paras 34, 38, 42–43, 44–48, 49, 50, 51).
Per curiam. (i) For the purposes of section 35(5)(a) of the Limitation Act 1980 and CPR r 17.4, “the same or substantially the same” is not synonymous with “similar”. Although the word “similar” is often used in this context, it is no more than convenient shorthand and may serve to divert from the appropriate inquiry (post, paras 37, 50, 51).
(ii) Each actuarial valuation is, or should be, an independent and freestanding exercise. A proper valuation necessarily involves an assessment of whether assumptions and bases of valuation adopted in the past for previous valuations still hold good (post, paras 40, 50, 51).
Decision of Judge Pelling QC sitting as a judge of the Chancery Division reversed in part.
The following cases are referred to in the judgment of Tomlinson LJ:
BP plc v Aon Ltd
Chandra v Brooke North
Goode v Martin
Paragon Finance plc v DB Thakerar & Co [
Steamship Mutual Underwriting Association Ltd v Trollope & Colls (City) Ltd (
Welsh Development Agency v Redpath Dorman Long Ltd [
No additional cases were cited in argument.
The following additional cases, although not...
To continue reading
Request your trial
-
Lady Christine Brownlie (widow and executrix of the estate of Professor Sir Ian Brownlie CBE QC) v Four Seasons Holdings Incorporated (a company incorporated in British Columbia, Canada)
...(including the Limitation Act 1980 s. 35) applies was considered by the Court of Appeal in Ballinger v Mercer Ltd [2014] EWCA Civ 996, [2014] 1 WLR 3597. That was a case which concerned a new cause of action rather than the substitution of a new party, but since provision for both (where ......
-
Various Claimants (The Persons Identified in Schedule 1) v G4S Plc
...of the pre-existing matters [in] issue, already have had to investigate the same or substantially the same facts.” ( Ballinger v Mercer [2014] 1 WLR 3597 at para 34) 295 I find that the claimants cannot satisfy the requirements of this provision. The starting point is the claim form. That ......
-
Biraja Pada Bhattacharya v Oaksix Holdings Ltd
...on the new claim ( Chandra v Brooke North [2013] EWCA Civ 1559; [2014] TCLR 1, Ballinger v Mercer Ltd [2014] EWCS Civ 996; [2014] 1 W.L.R. 3597).” 62 Mr Chirnside submitted that the limitation defence his client wished to argue was plainly arguable, referring me to paragraphs 209–210 of t......
-
EH (A protected party, by her litigation friend, the Official Solicitor) v Dorset Healthcare University NHS Foundation Trust
...the same as another involves a value judgment, having regard to this overall policy: see Ballinger v Mercer Ltd [2014] EWCA Civ 996, [2014] 1 WLR 3597. This must be to some extent a matter of impression. 56 Adopting that approach, the first observation to make is the obvious one: the claim......