Darlington Building Society and Another v O'Rourke James Scourfield & McCarthy (A Firm)
| Jurisdiction | England & Wales |
| Judgment Date | 03 November 1998 |
| Date | 03 November 1998 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Before Lord Justice Nourse, Lord Justice Waller and Sir Iain Glidewell
Limitation of actions - expiry of limitation period - thereafter plaintiff seeking to amend claim - amendment plea refused
A statement of claim by a building society alleging breaches of fiduciary duty and negligence against solicitors, who were acting for both lenders and borrowers in mortgage transactions, could not be amended after the expiry of the limitation period so as to include allegations of breaches of a different nature based on the solicitors' failure to disclose their knowledge of the borrower's fraud.
The effect of granting such an amendment would involve the addition of a new cause of action arising out of facts that were not the same as those pleaded in the original statement of claim.
The Court of Appeal so held in a reserved judgment dismissing an interlocutory appeal by the first plaintiff, Darlington Building Society, and the second plaintiff, Abbey National Building Society, from the refusal by Mr Peter Goldsmith, QC, sitting as a deputy High Court judge on January 22, 1998, of their application to amend the statement of claim against the defendant solicitors, O'Rourke James Scourfield & McCarthy, and ordering that it be struck out.
Mr Adrian Jack for the plaintiffs; Mr Peter Crampin, QC and Mr Ulick Staunton for the solicitors.
SIR IAIN GLIDEWELL said that the first plaintiff's statement of claim against the solicitors was for breach of the terms of their retainer, fiduciary duty and negligence in the purchase and mortgage of a house at 644 Acklam Road, Middlesbrough for a Mr and Mrs Singh.
The second plaintiff claimed under the same heads against the same solicitors in respect of another property owned by Mr and Mrs Singh.
The solicitors had been retained both by Mr and Mrs Singh and by the two plaintiffs in respect of the transactions.
The complaint of the plaintiffs was that they were not told by the solicitors of the loan by and mortgage to the other plaintiff, which would have affected their decision to lend or the amount they would have lent.
Under the Limitation Act 1980 the primary limitation period for the claims was six years from the date when the cause of action first arose. That period expired shortly after the plaintiffs issued their writ in June 1996.
The proposed amendments sought to plead in a variety...
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