Challenge To Amendments To Group Claims Based On Limitation Have Failed (Viegas And Others v Cutrale And Another And Sanches And Others v Cutrale And Another)

• Published date: 25 August 2023
• Subject Matter: International Law, Litigation, Mediation & Arbitration, Export Controls & Trade & Investment Sanctions, Arbitration & Dispute Resolution
• Law Firm: Gatehouse Chambers
• Author: Mr Phillip Patterson

Dispute Resolution analysis: Complex applications, challenging amendments to group claims adding significant numbers of Claimants in circumstances where an arguable limitation defence has been raised have failed. The amendments to the claims have been allowed.

Viegas and others v Cutrale and another and Sanches and others v Cutrale and another [2023] EWHC 1896 (Comm)

What are the practical implications of this case?

This is a significant judgment in relation to the circumstances in which parties may be added to claims prior to service where the Defendant has an arguable defence based on limitation. Despite some dicta in subsequent authorities, Chandra v Brooke North (a firm) [2013] EWCA Civ 1559 remains good law. The Court should refuse permission to amend only where the Defendant does not have an arguable case on limitation which would be prejudiced by the new claim. This includes (and may be confined to circumstances in which the operation of section 35 (1) of the Limitation Act 1980 would or may give the Claimants an advantage by reason of the doctrine of relation back. If, as here, there is said to be a limitation defence which applies to the whole claim (both original and amended), the doctrine does not apply and no prejudice is caused to the defence by the addition of the new claim. The judgment also offers interesting guidance on the circumstances in which a challenge under r. 17.2, CPR may be brought outside the prescribed 14-day period and also the effect of the death of Claimants, both on their ability to bring claims originally and for their claims to be pursued by their personal representatives.

What was the background?

This judgment concerns cartel claims brought by orange farmers domiciled in Brazil. The Defendants, the estate of Mr Cutrale snr and Mr Cutrale jnr were, during the relevant period, directors and shareholders of the Brazilian undertaking, Sucocitrico, a producer of orange juice. One set of proceedings, the "Viegas Claim" was originally issued on behalf of 170 Claimants. It was then amended prior to service to add further Claimants, bringing the total Claimants to 1,495 individuals, 21 companies and one foundation. Another, the "Sanches Claim" was issued on behalf of 30 individuals and one company. It has never been amended. The Defendants challenged the jurisdiction of the High Court in respect of these claims. Upon the failure of that challenge, they applied, pursuant to CPR r.3.4(2) to strike out these amendments and to...