Mercer Limited & Anor v Ballinger & Anor
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
- LORD JUSTICE BRIGGS
Areas of Law
- Civil Procedure
- Contract Law
- Tort Law
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
AI Generated Summary
The case involves trustees of an occupational pension scheme suing administrators and actuaries for professional negligence concerning actuarial valuation reports (AVRs) prepared between 1993 and 2004. The appeal focuses on whether new claims, introduced after the limitation period had expired, should be allowed. The court held that amendments related to the same facts as those in issue could be permitted, but new claims introducing distinct allegations were not allowed. Key legal principles discussed include the conditions under CPR 17.4 and s.35 of the Limitation Act 1980 for when amendments can be made to claims that are otherwise time-barred.
Judgment
Lord Justice Tomlinson :
CPR 17.4 permits, in certain cases, an amendment to a statement of case to introduce a new cause of action after the expiry of the limitation period applicable thereto. It gives effect to s.35 of the Limitation Act 1980. The circumstances in which such a claim may be introduced are that it arises out of the same facts, or substantially the same facts, as those already in issue in the claims as currently pleaded in the proceedings. Two questions arise on this appeal from His Honour Judge Pelling QC, sitting as a judge of the Chancery Division in Manchester. First, on the interlocutory application to amend, what is the proper approach to the determination of the threshold question whether the proposed new claim is time-barred, and in particular upon whom lies the burden of persuasion? Second, did the judge here reach a permissible conclusion on the question whether the proposed new claims arise out of the same facts, or substantially the same facts, as those already in issue in the claims as then currently pleaded in the proceedings?
In the description of the proceedings and of the judge’s decision which follows I have borrowed extensively, with gratitude and without attribution, from the exceptionally clear and helpful skeleton arguments submitted by counsel on both sides.
The underlying claim is a professional negligence claim brought by the Claimants/Respondents who are the present trustees of an occupational pension scheme. The scheme provides contracted-out final salary type benefits to former employees of FirstCity Insurance Brokers Ltd later renamed FirstCity Partnership Ltd (“FirstCity”). The scheme closed to further accrual of benefits in 2001. FirstCity entered into liquidation following the sale of its business in May 2010. The scheme is in substantial deficit.
The claim is against the Appellants/Defendants who between 1993 and 1 January 2004 provided administrative and actuarial services to the scheme’s then trustees. The claim concerns the preparation of actuarial valuation reports (“AVRs”) by which the Appellants valued the assets and liabilities of the scheme and gave advice to the trustees regarding the level at which contributions to the scheme should be sought by the trustees from the employer, FirstCity. It is alleged that the Appellants were negligent in their valuations with the consequence that the liabilities of the scheme were understated. It is further alleged that in consequence of the Appellan