Facts From Which An Existing Claim Arises, Or Facts Already In Issue On A Claim? Applications To Amend Under CPR 17.4(2).

• Published date: 22 October 2021
• Subject Matter: Corporate/Commercial Law, Litigation, Mediation & Arbitration, Corporate and Company Law, Trials & Appeals & Compensation, Shareholders
• Law Firm: Gatehouse Chambers
• Author: Miguel Henderson

In the recent case of Colliver v Papworth & Anor [2021] EWHC 2465 (Ch), the High Court considered an application to amend Particulars of Claim by adding a new claim barred by limitation, but said to be responsive to an Amended Defence and arising out of the same or substantially the same facts and matters "as a claim in respect of which the [applicant] has already claimed a remedy" within the meaning of CPR r 17.4(2). In this article, we review the decision.

Background

This application to amend arose in the context of proceedings arising out of the splitting up of a company set up by the Claimant, Defendants, and one other shareholder ('CE'). On 12 February 2010, an agreement in principle that the Claimant would sell his shares to the other shareholders was reached, and a share sale agreement was eventually finalised and entered into on 7 July 2010.

In September 2010, discussions took place between the Claimant and Defendants to resolve the position relating to their joint pension scheme and to enable a final separation of their interests. Following negotiations, a Deed of Agreement was entered into on 22 September 2010, which included at Clause 9 a general release as follows:

"Each of the Parties hereto acknowledges and agrees...that this deed is in full and final settlement of, and each Party hereby releases and forever discharges, all and/or any actions, claims, rights, demands and set offs....whether or not presently known to the parties, that they...ever had, may have or hereafter can, shall or may have against the other Parties arising out of or connected with [the Company] and/or the [the pension scheme] and/or their positions as shareholders and or directors of [the Company] ....and/or any agreement between or act by the Parties...and any other matters arising out of or [in] connection with the relationship between the Parties."

On 30 September 2010, the Defendants and CE then sold the Company to a third-party company, which the Defendants had incorporated some months earlier on 15 June 2010.

On 27 April 2016, the Claimant brought proceedings, alleging fraudulent misrepresentation on at least three occasions between February and July 2010 regarding the sale of the Claimant's shares to the Defendants and CE, and the potential sale of the company to third parties.

The Pleadings and the Applications to Amend

The original Defence, dated 16 September 2016, did not contain any reference to the Deed of Agreement. By an application issued on 17 July 2020, the Defendants sought permission to amend their Defence to rely on the Deed of Agreement and the Release contained therein to assert that all claims, including fraud and unknown claims as advanced by the Claimant, were released. Permission was granted on 28 May 2021 in [2021] EWHC 1450.

The Claimant then brought a fresh application to amend...