England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/08/2013

Mrs Justice Nicola Davies:

Introduction

1. This is the appeal of the first to ninth defendants from the order of Master Cook dated 4 February 2013 whereby he exercised his discretion to permit the claimant leave to amend his Particulars of Claim and ordered the defendants to pay the costs of the claimant's application.
2. The original Grounds of Appeal were eleven in number. In summary; the Master correctly held that the claimant's proposed amendments "clearly add a new claim or claims" but wrongly held that;

a) s.32(1) of the Limitation Act 1980 ("the 1980 Act") applied so as to postpone the running of the applicable limitation period;

b) the new claims arose out of the same or substantially the same facts as those in the proceedings.

3. The background to this application is set out in the judgment of Cooke J in Greene Wood and McLean LLP (in Administration) v Templeton Insurance Limited and others [2010] EWHC 2679 (Comm). The claimant claims as assignee of various claims from the liquidator of a firm of solicitors, Greene Wood McLean LLP ("GWM"). The claims concern the failure of an application for a Group Litigation Order ("GLO") brought by GWM on behalf of a number of coal miners. The object of the GLO was the recovery, by those miners, of certain sums deducted from compensation awards made in their favour from the Coal Health Compensation Schemes (Chronic Obstructive Pulmonary Disease ("COPD") and Vibration White Finger ("VWF")) in respect of personal injuries suffered in the course of their employment with British Coal Corporation. The application for a GLO was opposed by the then defendants. At a hearing before Sir Michael Turner, at the time the judge in charge of the Coal Health COPD Compensation Scheme, Sir Michael dismissed GWM's application with costs in a judgment dated 18 May 2006. Subsequently, GWM went into liquidation.
4. The claimant, as assignee of GWM's claims, now seeks to recover in the order of £75 million in damages for conspiracy and other causes of action from the first defendant, Thompsons, a firm of solicitors, the second to ninth defendants are named present and former partners of Thompsons, the eleventh defendant is Lord Prescott. The tenth defendant (Templeton) has been released from these proceedings pursuant to a Consent Order dated 29 February 2012. The proposed amendments primarily concern the first to ninth defendants who for these purposes are referred to as "Thompsons". The proposed amendments are not actively opposed by the eleventh defendant.
5. The claimant's case is that the defendants entered into an unlawful means conspiracy to cause the failure of the GLO by causing Templeton to wrongly withdraw its funding under the terms of an After The Event insurance policy ("ATE policy"). This unlawful conduct is said to have caused damage to GWM. A Letter before Claim dated 18 July 2011 was sent to the defendants. Solicitors, acting on behalf of Thompsons, responded by a letter dated 27 July 2011. The Particulars of Claim, served on 30 March 2012, run to 189 paragraphs, 69 pages. The Defence consists of 189 paragraphs, 49 pages. A feature of this case, both in terms of pleadings and the Grounds of Appeal is the length and, on occasion, prolixity of the pleadings.
6. A further feature of this case has been what the claimant describes as the difficulty of obtaining disclosure from the defendants. A number of disclosure applications have been made, some of which have been considered by Master Cook. At a case management hearing on 16 October 2012, specific disclosure was sought by the claimant of a letter relating to the role of the first to ninth defendants in the appointment of Sir Michael Turner. The claimant was seeking to understand how it was that Sir Michael Turner had taken over the hearing of the GLO from the then Senior Master Robert Turner. Counsel on behalf of the claimant described the letter as "the first step in what is already pleaded …. It is particularly important because it casts a light on everything that goes afterwards". Master Cook adjourned the application to enable the defendants to produce the letter or explain why it could not be obtained.
7. The letter is dated 23 March 2005. It was written by Mr Lumsden, the ninth defendant, to Sir Michael Turner. Following its production, the claimant served draft Amended Particulars of Claim. A summary of the amended claim is set out at paragraphs 2.15A to 2.15C:

"2.15A Further or in the further alternative, Thompsons, by providing a misleading report dated 23 March 2005 to Sir Michael Turner, led Sir Michael Turner to form a considered view, alternatively, a concluded view, which was obviously adverse to (the) basis of the litigation sought to be advanced by the GLO application. Knowing Sir Michael Turner's view and knowing that he continued to adhere to it as at October 2005 Thompsons (and others unknown) devised a strategy in October 2005 to have the GLO stayed or heard before Sir Michael Turner. They successfully implemented that strategy, in the process concealing the foregoing by failing to disclose to the Senior Master, GWM, their clients or counsel:

(a) the fact or content of the correspondence with Sir Michael Turner in March 2005 and October 2005 (particularised below);

(b) in particular, Sir Michael Turner's said view, expressed in his letter of 24 March 2005 from which he did not demur in his letter of 24 October 2005.

2.15B Further Thompsons and those with whom they devised the said strategy did not make any application to Senior Master Turner who was (pursuant to the CPR) seized of the GLO application. Instead, on 10 November 2005, Irwin Mitchell wrote to Sir Michael Turner who, despite having disavowed any jurisdiction over the issues, in a letter to GWM, immediately 'directed' Master Turner to transfer the application to be heard by Sir Michael Turner. Sir Michael Turner's prior involvement in managing the scheme made his appointment very sensitive, but his swift response (without affording GWM or its clients or counsel to make any representations) and the non-disclosure to them of the matters in paragraph 2.15A (a) and (b) above effectively prevented any representations being made to and considered by the Senior Master.

2.15C In the circumstances, it must have been and was obvious to Thompsons that Sir Michael's expressed views in his letter dated March 2005, from which he did not demur in October 2005, were strongly favourable to the proposed defendants in the Group and adverse to GWM and its clients as aforesaid and that the fact and content of Thompson's private correspondence with Sir Michael Turner (through Mr Lumsden) was clearly:

(a) an obviously relevant and material factor to the question of whether or not the Senior Master should transfer the hearing of the GLO application to Sir Michael Turner and whether Sir Michael Turner should properly hear it;

(b) sufficient to render Sir Michael Turner actually biased and/or apparently biased – and he was so biased and/or apparently biased."

8. The detail of the amended claim is set out at paragraphs; 84A to 84C, 86A to 86S, 90A to 90D, 93 and 96A to 96H of the Amended Particulars of Claim. There are other minor amendments but there is no serious objection to them.
9. The claimant's claim against the defendants is set out at paragraphs 177 and 178 of the Amended Particulars of Claim:

"177. The Claimant alleges that by reason of the matters particularised above and herein, the Defendants and/or any combination of them, which the Claimant may seek to further particularise following disclosure, caused GWM losses as set out in the Schedule of Loss, attached hereto, or caused GWM some loss.

178. The acts of the Defendants were unlawful in that they amounted to and constituted some or all of the following economic torts:

178.1 unlawful means conspiracy;

178.2 procuring/inducing breach of contract;

178.3 unlawful interference/causing loss by unlawful means;

178.4 lawful means conspiracy;

178.5 intimidation;"

The claimant did not seek to amend these paragraphs.

10. Particulars of the unlawful means conspiracy alleged by the claimant against the defendants are set out at paragraph 181 of the Amended Particulars of Claim. The final substantial amendment is at sub paragraphs 181A following:

"181A By way of characterisation of the matters in paragraph 181 above and Thompsons' conduct, the Claimant contends that:-

181A.1 actionable non disclosure: Thompsons failed to disclose to Senior Master Turner Sir Michael Turner's biased and/or ostensibly biased views as expressed to Thompsons (through Mr Lumsden) in Sir Michael Turner's letter of 24 March 2005 when it was relevant for Senior Master Turner to know of those views, such failure amounting to an act of material and actionable non-disclosure;

181A.2 negligent misstatement/breach of fiduciary duty: by Thompsons' provision of the Report dated 23 March 2005 to Sir Michael Turner, they misled Sir Michael Turner and/or were in breach of fiduciary duty to Sir Michael as "custodians of the scheme";

181A.3 interference with administration of justice/abuse of process/contempt of court: by reason of the said failure to disclose Sir Michael Turner's views to Senior Master Turner, which failure took place in the context of Thompsons' circumvention of paragraph 3.5CPR 19BPD, Thompsons effectively misled the Senior Master, interfered with the administration of justice and/or abused the process of the court;

181A.4 misrepresentation/negligent misstatement: in copying the letter of 10 November 2005 to the Claimant, Thompsons impliedly represented to the Claimant that the CG (or those on whose behalf it was written) knew of no sound reason why the application should not be heard by Sir Michael Turner, when such representation was false in Thompsons' case and thereby induced GWM not to object on that basis;

181A.5 procuring a breach of Art 6 EHCR rights: by the matters above and by (i) depriving GWM and their clients of any opportunity to make informed or any submissions as to Sir Michael Turner's appointment to hear the GLO application; and (ii) knowingly causing a biased or apparently biased judge to be appointed to hear the GLO; Thompsons procured breaches of GWM's clients' rights under the Human Rights Act 1998 and Article 6 of the European Convention on Human Rights (and of the said rights of GWM and counsel) and thereby procured a breach of those rights by the court, which by section 6(3) of the Act, is a statutory tort contrary to section 6(1) of the Act";"

The judgment of Master Cook

11. The Master identified the issues thus:

"29. The first question that I have to decide is whether for the purposes of section 35(a) of the Limitation Act 1980 and CPR 17.4 the proposed amendments add a new claim and the period of limitation has expired under the Limitation Act 1980. If a new claim is introduced by the proposed amendment and the relevant limitation period has not expired I may permit the amendment in the exercise of my case management powers under CPR 17.1 (b). If on the other hand the relevant limitation period has expired I may only permit the proposed amendment if it arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed in the proceedings."

12. The Master found as follows:

"33. In my judgment the proposed amendments clearly add a new claim or claims. The newly alleged facts go far further than the existing facts which were said to support the allegation that Thompsons undermined the ATE insurance arrangements thereby causing the GLO to fail. That much is clear from the amended summary of the claim set out at paragraph 11 above. I am not impressed with the argument advanced by Mr Green that the amendments are merely further particulars of the unlawful means conspiracy. I accept Mr Pooles' submission on the wording of the amendments set out at paragraph 16 above and I accept that the amendments would have a life of their own even if the existing allegations were removed.

34. I must then consider if these new claims are time barred. The normal rule is that where there is a dispute as to whether a claim is time-barred, the claimant has to commence a fresh action in which the viability of the limitation defence can be determined, see Welsh Development Agency v Redpath Dorman Long Ltd.

35. In the case of Mortgage Corporation v Alexander Johnson the Times 22 September 1999 it was held by Mr David Donaldson QC, sitting as deputy Chancery Division judge, that the normal rule did not apply where there was an issue as to whether any fact relevant to the Claimant's action had been deliberately concealed and the deliberateness of the breach was an essential element of the new cause of action.

36. Mr Green's submissions were to the effect that concealment by the Defendants was both an element of the pleaded causes of action and had occurred in relation to the factual material on which he now relies to plead them. He did not draw my attention to Mortgage Corporation v Alexander Johnson although it is referred to in the note to section 32 of the Limitation Act 1980 in the White Book. As I understood his submission it was to the effect that the limitation period could not begin to run in relation to the proposed amended claims until disclosure was made by the Defendants of the e-mail of 27 October 2005 and the letter of 23 March 2005, from which everything was said to flow. As I understand matters the e-mail of 27 October 2005 was disclosed pursuant to the consent order approved by Master Eastman dated 14 October 2011 and the letter of 23 March 2005 was disclosed in the circumstances described by me at paragraph 10 above. In the circumstances he submitted there could be no dispute as to whether the claims were time barred.

37. Whilst I accept Mr Pooles' observation that the draft amended Particulars of Claim do not contain an averment as to the Claimant's date of knowledge for the purpose of section 32 (1) of Limitation Act 1980 I am of the view that I have more than sufficient information to form a view as to whether there is a real issue that the amended claims are time barred. In my judgment having regard to the documented history of disclosure in this case there is no realistic prospect of such an issue. The proposed claims are not time barred because section 32 of the Limitation Act 1980 applies to them.

38. If my conclusion on limitation were to be wrong I must go on and consider whether the new claims arise out of the same or substantially the same facts? In Paragon Finance v Thakerar [1999] 1 All ER 400 Millett LJ said this at page 418:

"Whether one cause of action arises out of the same or substantially the same facts as another was held by this court in Welsh Development Agency v Redpath Dorman Long Ltd [1994] 1 WLR 1409 to be essentially a matter of impression. In borderline cases this may be so. In others it must be a question of analysis."

39. Lord Justice Millet's comment must be read subject to the Court of Appeal's observations in Goode v Martin. In this respect I accept the submissions of Mr Green that I must have regard to the totality of the facts put in issue by the Defence.

40. The Defendants have sought to rely upon the appointment of Sir Michael Turner and his subsequent judgment in relation to the GLO as a matter which breaks any causal link between the activities of Thompsons and the withdrawal of the ATE insurance provided by Templeton. These facts have been put in issue by Thompsons in their Defence. The Claimant is simply saying that when properly understood, Sir Michael's involvement was orchestrated by the Defendants in circumstances where they knew or strongly suspected that his decision would be favourable to them. In my judgment the proposed amended claims do arise from the same or substantially the same facts. Accordingly I propose to permit the amendments sought by the Claimant"

13. The Master reached his decision on two essential bases:

a) The amendments sought to be introduced had the effect of introducing new claims. However, by the operation of s.32 of the 1980 Act and by reason of the fact that concealment was both an element of the pleaded causes of action and had occurred in relation to the factual material giving rise to the amendments, those new claims were not time barred;

b) In the event that the new claims were time barred, they arose from facts which were the same, or substantially the same, as those already in issue and so could be permitted pursuant to CPR17.4(2) applying Goode v Martin [2001] EWCA Civ 1899.

The appeal

14. Grounds 1 to 8 of the original Grounds of Appeal related to the Master's decision upon s.32 of the 1980 Act. Grounds 9 and 10 were in respect of the Master's decision as founded upon Goode and Martin above and CPR 17.4(2). Ground 11 related to the Master's decision to award the claimant his costs of the application to amend. The Grounds were diffuse and repetitious. In oral submissions before this court, Mr Pooles QC on behalf of the defendants, narrowed the defendants' case to three issues:

i) the amended pleading did create a new cause of action;

ii) the Master was not in a position to deal with the same upon a summary basis pursuant to s.32 of the 1980 Act because he did not have evidence available to him as to:

a) deliberate concealment;

b) absence of constructive knowledge.

iii) the new cause of action does not arise out of the same matters as are in dispute (Goode v Martin).

There is no issue on this appeal as to the Master's finding that the amendments do create a new cause of action. There is also no issue as to the fact that the Master's citing and/or reliance upon the authority of Mortgage Corporation v Alexander Johnson above was done without prior notification to either party and in the absence of any submissions by them upon it. It is common ground that both parties should have been given the opportunity to comment. Whether, and to what extent, reliance on this authority undermines any findings of the Master, was a matter raised during the hearing.

The law

"CPR 17.1

(1) A party may amend his statement of case at any time before it has been served on any other party.

(2) If his statement of case has been served, a party may amend it only-

(a) with the written consent of all the other parties; or

(b) with the permission of the court ……..

CPR 17.4

(1) This rule applies where-

(a) a party applies to amend his statement of case in one of the ways mentioned in this rule; and

(b) a period of limitation has expired under-

(i) the Limitation Act 1980; or

(…)

(2) The court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings."

The Limitation Act 1980

Section 32

"32. Postponement of limitation period in case of fraud, concealment or mistake.

(1) Subject to subsections (3) and (4A) below, where in the case of any action for which a period of limitation is prescribed by this Act, either-

(a) the action is based upon the fraud of the defendant; or

(b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or

(c) the action is for relief from the consequences of a mistake;

the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.

References in this subsection to the defendant include references to the defendant's agent and to any person through whom the defendant claims and his agent.

(2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty. ……

35. New claims in pending actions: rules of court

(1) For the purposes of this Act, any new claim made in the course of any action shall be deemed to be a separate action and to have been commenced-

(a) in the case of a new claim made in or by way of third party proceedings, on the date on which those proceedings were commenced; and

(b) in the case of any other new claim, on the same date as the original action.

(2) …

(3)Except as provided by section 33 of this Act or by rules of court, neither the High Court nor any county court shall allow a new claim within subsection (1)(b) above, other than an original set-off or counterclaim, to be made in the course of any action after the expiry of any time limit under this Act which would affect a new action to enforce that claim.

For the purposes of this subsection, a claim is an original set-off or an original counterclaim if it is a claim made by way of set-off or (as the case may be) by way of counterclaim by a party who has not previously made any claim in the action.

(4)Rules of court may provide for allowing a new claim to which subsection (3) above applies to be made as there mentioned, but only if the conditions specified in subsection (5) below are satisfied, and subject to any further restrictions the rules may impose.

(5)The conditions referred to in subsection (4) above are the following—

(a)in the case of a claim involving a new cause of action, if the new cause of action arises out of the same facts or substantially the same facts as are already in issue on any claim previously made in the original action."

Judicial interpretation of CPR 17.4(2)

15. In Goode v Martin, Brooke LJ interpreted the provision thus:

"46. Mr Ralls contended that we should interpret CPR 17.4(2) as if it contained the additional words "are already in issue on". It would therefore read, so far as is material:

"The court may allow an amendment whose effect will be to add . . . a new claim, but only if the new claim arises out of the same facts or substantially the same facts as are already in issue on a claim in respect of which the party applying for permission ahs already claimed a remedy in the proceedings." (Emphasis added).

This would bring the sense of the rule in line with the language of the 1980 Act, which is the source of the authority to make the rules contained in CPR 17.4.

47. In my judgment it is possible, using the techniques identified by Lord Steyn in R v A, to interpret the rule in the manner for which Mr Ralls contends. In this way there would be no question of a violation of the Claimant's art 6(1) rights, and the court would be able to deal with the case justly, as we are adjured to do by the Civil Procedure Rules. ……"

16. The principle in Goode v Martin, embodied in the words in italics in [46] was reaffirmed by the Court of Appeal in Hemmingway v Smith Roddam [2003] EWCA Civ 1352 Waller LJ at [11]:

"The test to be applied is thus, whether, even if a new claim is being made, the new claim arises out of "the same facts already in issue". The question is whether the factual issues under the old pleading were going to be litigated between the parties; if they were, then the court should take the view that s 35 had it in mind that the parties should be able to rely on a cause of action which substantially arises from those facts."

17. The factual averments sought to be introduced by amendment by the claimant in Hemmingway were not discerned or derived from the defendant's Defence. They related to the defendant's case on causation. It was recognised that in granting leave to permit the amendment, new facts would be introduced into the case.
18. In The Convergence Group Plc v Chantrey Vellacott [2005] EWCA Civ 290 at [105] Jonathan Parker LJ recognised that additional facts would almost inevitably be pleaded in a complex case, even where the additional causes of action arose out of substantially the same facts:

"Of course it is right that … the proposed re-amendments make allegations of fact which are not already pleaded: that is more or less inevitable in a case of this factual complexity. But it does not follow that the new claim does not arise out of substantially the same facts as the claim already pleaded…"

19. As to the approach of the court upon such an application in Welsh Development Agency v Redpath Dorman Long Limited [1994] 1 WLR 1409 at 1418 D-E Millett LJ stated:

"….. whether or not the new cause of action arises out of substantially the same facts as that already pleaded is substantially a matter of impression. It is not suggested that the judge misdirected himself in any way, and since it is clear that he took all the relevant factors into account, we are of the opinion that he was entitled to come to the conclusion to which he did come on this issue. We cannot fault this part of his judgment in any way and we would therefore dismiss the defendant's appeal."

20. In The Convergence Group above at [104] Jonathan Parker LJ accepted that in order to answer the question; "does the new claim arise out of substantially the same facts as the claim already pleaded?" it is necessary to make, what is essentially a qualitative judgment:

"We accept Mr Crane's submission that in order to answer this question it is necessary to make what is essentially a qualitative judgment ("a matter of impression" to use Millett LJ's expression in the Welsh Development Agency Case …"

The relevant principles on appeal

21. The appeal is in respect of the discretionary exercise of the Master's case management powers pursuant to CPR 17.1(2). It is by way of review, it is not a rehearing (CPR 52.11.) The approach of the appellate court to a decision reached pursuant to the exercise of a discretion, is identified in the following authorities:

G & G (Minors' Custody Appeal) [1985] 1 WLR 647 Lord Fraser at 652:

"The appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution, which the Court of Appeal might, or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible."

Powell v Pallisers of Hereford Ltd [2002] EWCA Civ 959 per Potter LJ:

"This was, of course, a case management decision involving the exercise of the judge's discretion of a kind with which this court has repeatedly expressed reluctance to interfere; indeed it has been emphasised that it is wrong to do so unless it can be clearly demonstrated that the overriding objective will not be observed or maintained if the decision is permitted to stand."

Serco Ltd (trading as Serco Docklands) v National Union of Rail, Maritime and Transport Workers and ors [2011] EWCA Civ 226 (in relation to the exercise of a discretion in the context of injunctions) per Elias LJ:

"The function is one of review, and in the absence of further material evidence invalidating the exercise of discretion by the first instance judge, the Court of Appeal should only interfere where the judge had misdirected himself or reached a conclusion which is unsustainable on the evidence before him."

The defendants' case

Section 32 Limitation Act 1980

22. It is the defendants' contention that the Master's reliance on Mortgage Corporation v Johnson above was wrong in that the reference to the authority in the White Book makes clear that the authority relates to section 32(2) which is not the relevant section in issue, that being section 32(1)(b). The relevant note reads as follows:

"The normal rule is that, where there is a dispute to whether a claim is time-barred, the claimant has to commence a fresh action in which the viability of the limitation defence can be determined (Welsh Development Agency v Redpath Dorman Long Ltd [1994] 1 WLR 1409; [1999] 4 All ER 10, CA). It has been held in first instance that this rule does not apply where there is an issue under s.32(2) whether any fact relevant to the claimant's right of action has been deliberately concealed and the deliberateness of the breach is an essential element of the new course of action: Mortgage Corp v Alexander Johnson, The Times September 22 1999"

23. The defendants contend that the issue before the Master was not whether a breach of duty was deliberate but whether two facts supposedly relevant to the claimant's right of action for the purposes of section 32(1)(b) had been deliberately concealed from the claimant by the defendants or some of them. Mortgage Corporation was not material to that issue.
24. Further, in applying Mortgage Corporation v Johnson, the Master erred in law in that he failed to appreciate that the authority was decided before the decision of the House of Lords in Cave v Robinson Jarvis and Rolf [2003] 1 AC 384 which set out the relevant test for the application of the concealment provisions of section 32: Lord Scott at [60]:

"…… A claimant who proposes to invoke s.32(1)(b) in order to defeat a Limitation Act defence must prove the facts necessary to bring the case within the paragraph. He can do so if he can show that some fact relevant to his right of action has been concealed from him either by a positive act of concealment or by a withholding of relevant information, but, in either case, with the intention of concealing the fact or facts in question. In many cases the requisite proof of intention might be quite difficult to provide. The standard of proof would be the usual balance of probability standard and inferences can be drawn from suitable primary facts but, none the less, proof of intention, particularly where an omission rather than a positive act is relied on, is often very difficult. Subsection (2), however, provides an alternative route. The claimant need not concentrate on the allegedly concealed facts but can instead concentrate on the commission of the breach of duty. If the claimant can show that the defendant knew that he was committing a breach of duty, or intended to commit the breach of duty – I can discern no difference between the two formulations; each would constitute, in my opinion, a deliberate commission of the breach – then, if the circumstances are such that the claimant is unlikely to discover for some time that the breach of duty has been committed, the facts involved in the breach are taken to have been deliberately concealed for sub section (1)(b) purposes. ……"

25. Applying this test, the defendants submit that there was no evidence before the Master that there had been active concealment by any or all of the defendants of any fact relevant to the claimant's right of action. Further, there was no allegation advanced by amendment that there was deliberate breach of duty by the defendants or any of them.

Concealment

26. It is the defendants' case that the new claims identified at paragraph 181A of the Amended Particulars of Claim are not causes of action which require conscious knowledge or concealment. As no implication of deliberate concealment or knowledge arises from the pleading, section 32 is not made out. There is no injustice to the claimant in requiring him to issue a new Claim Form should he be able to make a case in concealment. In such event, the defendants would retain their rights as to the limitation defence. If the claimant is permitted leave to amend, the defendants lose their opportunity to rely upon a limitation defence. On a matter of discretion, this was a point not considered by the Master.

Constructive knowledge

27. Reliance is placed upon the authority of Fattal and others v Walbrook Trustees (Jersey) Limited and others [2010] EWHC 2767 (Ch) as to the court's approach to section 32. Lewison J (as he then was) at [45] stated:

"… The principle is that permission to amend should not be granted where the defendant has a reasonably arguable limitation defence. In a case in which it is obvious that section 32 will apply so as to postpone the running of time, then I accept that the court must have regard to that. But in a case in which the application of section 32 is itself disputed, in my judgment the right course is to refuse to allow the amendment and to let the question whether section 32 applies be determined in a fresh action. … Had the evidence supporting a claim that section 32 applied been deployed in support of the application, with the result that the defendants had had a chance to answer it, it might have been possible for the court to conclude that reliance on section 32 was unanswerable. But that is not this case. There was no evidence to back reliance on section 32. …"

28. The defendants submit that had the Master addressed their submissions upon this point, he would have found that it was arguable that the claimant, or his predecessor in title, could with reasonable diligence have discovered the relevant facts earlier. The burden of proof is on the claimant to show that he can avail himself of the benefit of the postponement provisions of the 1980 Act. The question is not whether the claimant should have discovered the fraud sooner; but whether he could, with reasonable diligence, have done so. The claimant must establish that he could not have discovered the fraud without exceptional measures which he could not reasonably have been expected to take. Paragon Finance Plc v DB Thakerar and Co. (A Firm) [1999] 1 All ER 400, CA per Millett LJ at 418.
29. The defendants rely upon the fact that GWM were aware that Sir Michael Turner had been invited to intervene in the GLO litigation by the Claimant's Group. They also knew that he had been managing the underlying miners' compensation claim for many years. Sir Michael Turner was perceived by them as being a potentially hostile judge. The defendants rely on the draft of a letter prepared by GWM dated 15 November 2005, to be sent to Sir Michael Turner indicating their opposition to Irwin Mitchell's position that their application for a GLO be listed before Sir Michael. The letter was never sent. It is clear from the judgment of Cook J that consideration of the position of Sir Michael was discussed between GWM and their counsel. In the draft letter, reference is made to the CPR and the fact that, in accordance with those rules, the application should be made to the Senior Master. The point made is that, had GWM sent the draft letter taking issue with the appointment of Sir Michael Turner to hear the GLO, the relevant facts could have been discovered.
30. Further, no evidence of 'diligence' was adduced by the claimant. The Master did not address this fact or this issue in his judgment. Before the Master was only the actual knowledge of the claimant. In the absence of disclosure from the claimant, the defendants submit that the Master could not deal with the question of constructive knowledge.

The proposed amendments/new claim does not arise out of the same or substantially the same facts as are in dispute

31. It is the defendants' contention that the Master failed to understand Goode and Martin above. Had he applied the principle correctly, he would have found that the proposed amendments were not based upon what the defendants had stated in their Defence.
32. Before the court the following points were made:

i) the propriety of Sir Michael Turner has never been in issue in this case;

ii) the matters now relied upon do not arise out of any issues as between the Claimants Group and the defendants on the broadest reading of Sir Michael Turner's judgment;

iii) in this case there has been a relatively narrow and focused attack upon the relationship between the defendants, Thompsons, and Templeton Insurance. This hass now been broadened into a complex attack which involves the Claimants Group and Thompsons and an allegation that they connived in the appointment of a biased judge and that bias was demonstrated in the eventual judgment;

iv) none of the matters now relied upon arises from pleading the terms of Sir Michael's judgment in the Defence.

33. Reliance is placed upon D & G Cars Ltd v Essex Police Authority [2013] EWCA Civ 514 where the proposed amendment was found to generate a far wider case than was contemplated on the existing pleadings, it was not allowed. The authority of Birse Developments Ltd v Cooperative Group Ltd and others [2013] EWCA Civ 474 was also cited in which it was held that in determining what constituted a new cause of action the court had to compare the essential factual elements in the cause of action already pleaded with the essential factual elements in the cause of action proposed. Where a claimant asserted breach of a duty which had not previously been pleaded that would usually amount to a new claim. Where a claimant alleged a different breach of a duty already pleaded, it was a question of fact and degree as to whether that constituted a new claim.
34. In summary, it is the defendants' case that the matters now sought to be introduced do not arise from pleading the terms of the judgment of Sir Michael Turner. There is no indication, still less an assertion, in the original pleadings which would lead to an allegation of bias. The new claim amounts to this: that Thompsons and others deliberately arranged the appointment of the judge who was biased in order to achieve failure of the GLO. The facts relating to these additional matters introduce a new area of investigation.

The claimant's case

Disclosure/the Defence of the first and ninth defendants

35. The claimant relies upon the following as being of relevance to his application to amend the Particulars of Claim:

18 July 2011

A 19 page Letter of Claim sent by the claimant to the defendants accompanied and cross-referenced to a document bundle comprising just under 200 pages. In addition to identifying the facts, allegations relied upon, the relevant law and loss claimed, the claimant sought disclosure of nine categories of documents relating to the activities of the defendants, the proposed GLO, the defendants' communications with others which included Templeton and the ongoing litigation.

27 July 2011

A 2½ page letter sent on behalf of the first to ninth defendants in which they refused to provide a detailed response to the Letter of Claim on the grounds that they did not consider it proportionate to incur such costs when there was a substantial risk of such costs being duplicated at the stage when the defendants prepared their Defence. The request for disclosure of documents was not answered.

8 September 2011

The claimant made an application for disclosure pursuant to CPR 31.12 which was due to be heard by Master Eastman. It was dealt with by way of a Consent Order dated 14 October 2011.

3 November 2011

A letter dated 2 November 2011 received by the claimant's solicitors enclosing a two page document entitled "First Defendant's disclosure list" and a CD containing 447 pages of copy documents. The list is not compliant with CPR 31.10. Within the copy documents was the letter from Sir Michael Turner to Mr Lumsden dated 24 March 2005. It is the claimant's case that at that time the significance of the document was not appreciated.

18 November 2011

The claimant's solicitors wrote to the defendants' solicitors stating that the disclosure provided was inadequate. On 25 January 2012, the first defendant signed a new list of documents.

10 February 2012

At a contested hearing before Master Cook, the claimant sought specific disclosure. Eventually the first defendant entered into an agreement for an order for specific disclosure and for a written statement compliant with CPR 31.2. Time for service of the Particulars of Claim was extended to March 2012.

5 March 2012

The first defendant provided certain disclosure. This included the email from Miss Hurley dated 28 February 2006, pleaded at section E12 of the Particulars of Claim.

30 March 2012

Service of the Particulars of Claim on all defendants, save for Templeton. The Particulars of Claim allege that: (1) Thompsons were anxious about press coverage during 2005; (2) the withdrawal of insurance by Templeton caused the GLO application to fail and caused the demise of GWM.

15 June 2012

Service of the Defence of the first to ninth defendants in which it was pleaded that:

(i) The "proximate cause of the failure of the GLO was not the supposed conduct by Thompsons but was instead the decision by Sir Michael Turner dismissing the application" (paragraph 84(4));

(ii) Thompsons were not anxious about press coverage in 2005 because of a clear reassurance provided by Sir Michael Turner (paragraph 86).

3 July 2012

Pursuant to CPR 31.14, the claimant sought copies of the documents identified in the Defence of the first nine defendants. Included is Sir Michael Turner's letter dated 24 March 2005, a copy was provided by the defendants on 9 July 2012.

16 October 2012

Case management conference by Master Cook which included a contested application for disclosure (paragraph 6 above). On 31 October 2012, Mr Lumsden's letter dated 23 March 2005 was provided to the claimant's solicitors.

Master Cook, on 29 February 2012, approved a Consent Order for the dismissal of the claim against the tenth defendant, consequent on certain disclosure from it. On 15 and 21 March 2012, Master Cook extended time for service of the Particulars of Claim.

The Defence of the first to ninth defendants

36. It is the claimant's case that the Defence put causation at the forefront of the defendants' case. Of particular relevance are paragraphs 86(2) – 86(4) and 158(2).

Paragraph 86:

"….. (2) Further, in the light of an article in the Sunday Times dated 16 January 2005, the Claimants Group ("the CG") of the British Coal Respiratory Disease Litigation offered to provide a report to Sir Michael Turner, the managing Judge, on the contents of the article. Thompsons will refer to this report. The CG report was forwarded to Sir Michael Turner by Mr Lumsden and reported to Sir Michael, inter alia (at paragraph 11):

"A distinction requires to be drawn between deductions from a member's damages authorised in favour of the union, and deductions taken to pay the solicitors' fee in whole or in part. The practice which is the subject of the ST article is the former that is, authorised deduction under a union legal assistance scheme in favour of the union and operated by the solicitor as he is required to do, following his client's instructions, upon receipt of a mandate or authority made out in favour of a third party. Agreement to such deduction is generally a condition of obtaining the benefit of the union's legal assistance scheme. Former members are thus able to secure benefits under the scheme; such as payment of all unrecovered disbursements; continued funding for a claim and Court action; payment of other parties' costs in the event of success; and "fringe" benefits associated with the claim made, for instance assistance with state benefit applications, help with completion of formal documents and advice in understanding what are to the layman, complex documents (such as MAP reports). Retired men frequently call their area trade union for informal assistance in relation to the COPD and VWF schemes, whether they are represented under the trade union scheme or not."

(3) The type of scheme described in paragraph 11 above was the type of scheme operated by the union clients of Thompsons.

(4) Sir Michael Turner replied to this report by letter dated 24 March 2005 and stated, inter alia: "Your report explains the well understood relationship of any trades' union to its members where they may have suffered personal injury in the course of employment … There is nothing in the article which, in the light of your thorough report, requires either to be considered by me or referred to the Law Society...".

Paragraph 158:

"….. (2) Thompsons will contend that the Judgment is of central relevance to the Claimant's claim and will rely on it as establishing that Thompsons is under no liability to the Claimant."

37. The claimant contends that the defendants' reliance on Sir Michael Turner's views (86(4)) was intended to serve as support for a denial that mounting press coverage as to deductions made by solicitors from miner's compensation payments caused acute concern on the part of Thompsons. The defendants' reliance upon Sir Michael Turner's letter of 24 March 2005 was intended to relay the message that the media interest in this issue was of no concern to Thompsons because they had it on authority of the High Court Judge administering the schemes that their practice in making deductions from payments to miners was entirely proper. This provided a striking context to the appointment and judgment of Sir Michael Turner which is reflected in the amendments, the subject of this appeal.
38. The claimant has adopted the case advanced by the defendants at paragraphs 86(2) – 86(4) of the Defence, namely, that, as of 24 March 2005, Thompsons had it on authority of the High Court Judge administering the schemes that what they had been doing was entirely proper. Thompsons' strategy to have Sir Michael hear the GLO application was accordingly unlawful in that they knew that Sir Michael Turner expressly chose not to demur from these private views when afforded the opportunity to do so in October 2005. In support of his case, the claimant identifies the documents mentioned for the first time in the Defence, namely:

i) the report sent to Sir Michael Turner by Mr Lumsden in the light of the Sunday Times article dated 16 January 2005;

ii) the letter of Sir Michael Turner dated 24 March 2005.

The Defence did not expressly refer to the covering letter of 23 March 2005 by which Mr Lumsden sent the report to Sir Michael Turner. When the document was finally obtained, it showed that the report to Sir Michael Turner was not shared with other parties to the litigation, in particular, the DTI.

Concealment

39. It is the claimant's case that Master Cook would have known that the concealment of the relevant correspondence was deliberate when documents now show:

i) the report prepared by Mr Lumsden for Sir Michael Turner was not to be disclosed to other parties to the proceedings, in particular, not to the DTI;

ii) no point was taken by GWM as to any view expressed by Sir Michael Turner upon his appointment to the GLO litigation;

iii) the letter of Sir Michael Turner dated 24 March 2005 is nowhere to be found in the 2010 proceedings before Cooke J.

40. Further, deliberate concealment was part of the strategy being pursued by Thompsons, at the centre of which was Mr Lumsden. His email dated 27 October 2005 demonstrates involvement and complicity on the part of Mr Shears, the sixth defendant, and others in Thompsons.
41. Master Cook is described by the claimant as being "steeped in the procedural chronology" of these proceedings. Before him was evidence of clear, unarguable concealment together with a clear history of which the Master was aware which would meet the threshold of providing a reasonably arguable case upon limitation pursuant to the provisions of section 32.
42. As to the amended pleadings, it is clearly pleaded that there has been a deliberate attempt to subvert the GLO. The amendments commencing at paragraph 181A provide the entire factual underpinning of an action for deliberate conspiracy on the part of the defendants to subvert the GLO. Sub paragraphs 181A1 to 181A5 identify separate and deliberate causes of action.

Constructive knowledge

43. The defendants rely upon an email, wrongly disclosed in these proceedings, dated 9 June 2006 sent by those acting on behalf of GWM in the GLO litigation in which Sir Michael Turner is described as a "potentially hostile judge". The point taken by Mr Green QC, on behalf of the claimant, is that had it been known that Sir Michael had expressed the view contained in his letter 24 March 2005, it is inconceivable that the point would not have been taken by counsel on behalf of GWM in respect of an application for Sir Michael to recuse himself.
44. As to what "reasonable diligence" could have produced: the claimant relies upon the history of disclosure in these proceedings; the difficulty and opposition encountered in attempting to obtain discovery of relevant documentation; all of which is against a background in which it now appears that the defendants in these proceedings had deliberately sought to conceal relevant documentation.

A new cause of action

45. In summary, the claimant's case is that the additional allegations now relied upon arise from the averments in the Defence that:

i) Sir Michael Turner's subsequent decision breaks the chain of causation (84(4));

ii) Sir Michael Turner had given the defendants a reassurance about their conduct in (private) correspondence (86(4)).

46. As a result of (i) above, causation was centrally in issue, the defendants having asserted novus actus interveniens. As to (ii), this put in issue the defendants' motivation to act as the claimant alleges. Further, the substance of the matters had, in any event, already been pleaded in some detail by the claimant, for example, in answers to the defendants' Request for Further Information pursuant to a Part 18 Request.
47. The claimant relies upon paragraph 40 of the judgment of Master Cook (paragraph 12 above). The Master's finding that the defendants' case on causation placed the appointment of Sir Michael Turner, and his subsequent judgment in relation to the GLO, in issue in the litigation is described by the claimant as "unassailable" for the following reasons:

i) the defendants positively aver that these matters break any causal link between the activities of Thompsons and the withdrawal of the ATE insurance provided by Templeton and described the issue as one of "central relevance" to the defendants' case;

ii) these two bases of their denial of causation are unarguably in issue in the case since, taken at their highest, they are capable of constituting a complete defence to the claimant's claim;

iii) the Master's decision at [40] is to the effect that if, the defendants' wish to assert that an independent adjudicator stood between the claimant and the decision made on the GLO application, it is open to the claimant to assert that the circumstances in which the so called independent adjudicator was chosen, called into question the independence of that adjudicator.

48. The Master, in recognising the impact of these matters in relation to the issue of causation, echoes Waller LJ's decision in Hemmingway. No Reply was necessary to put these matters in issue.
49. The claimants rely upon the observations of the Master at [39] of his judgment where, following Goode and Martin above, the Master stated that he "must have regard to the totality of the facts put in issue by the Defence." This is said to be important given what the defendants had chosen to raise in their Defence and the extent of the scope of the court's inquiry where a defence of novus actus interveniens is raised.

Exercise of the Master's discretion

50. The claimant contends that the defendants face a high hurdle in seeking to challenge the exercise of a discretion by a court familiar with the detail of the case and its history, when that decision was a qualitative judgment, a matter of impression in respect of a case management decision. It is for the defendants to establish that the Master's judgment or impression, that the proposed amendments arose from the same or substantially the same facts as those in issue in the proceedings, was outwith the ambit within which reasonable disagreement is possible on those matters. The Master, having dealt with numerous applications, including applications for disclosure, was particularly well placed to form the impression and to make the qualitative judgment which he did within its proper context.

Conclusion

51. The claimant's application to amend the Particulars of Claim was heard and determined by a Master, familiar with the history of the action, in particular the claimant's applications for disclosure. In addition to his own knowledge, the Master had read the judgment of Cooke J which provided considerable detail as to the background history. From the outset of these proceedings, the claimant sought to identify his case and the detail upon which he relied. A detailed Letter of Claim, accompanied by many documents was served upon the defendants. The response of the first to ninth defendants was one of refusal to address the detail of the claim. A request for disclosure went unanswered.
52. On the evidence then available to them, the claimant's legal team drafted detailed Particulars of Claim. The Defence was detailed, it identified that causation was at the forefront of their case (84(4)). The Defence disclosed that the CG report had been sent to Sir Michael Turner by Mr Lumsden (86(2)) and pleaded part of the response of Sir Michael Turner (86(4)). The importance attached to the judgment of Sir Michael Turner by the defendants is identified at (158(2)).
53. It was following service of the Defence that the claimant sought disclosure of the letter of Sir Michael Turner and eventually the letter written by Mr Lumsden. The latter was the subject of an application for specific disclosure before the Master and it was following disclosure of the document that the Amended Particulars of Claim were drafted.
54. In my view, there can be no issue but that in their Defence, Thompsons were asserting a positive case, namely that causation had been broken by the independent adjudication of Sir Michael Turner. This is of significance in the context of this application because the Defence identified for the first time the case of the defendants and at least in part, the evidence upon which they would rely. Equally significant is the fact that, following the service of the Defence, the claimants embarked upon requests and/or applications for disclosure of specific documents.
55. On the evidence before the court, the following documents appear to be of particular relevance in the context of this appeal:

23 March 2005

Mr Lumsden, of Thompsons, sends a letter to Sir Michael Turner enclosing a report regarding Sir Michael's concerns relating to an article in The Sunday Times of 16 January 2005. The letter enclosed the completed report and concluded:

"The Union has willingly responded to the request made of it for information and understands that the report is for your consideration. It has not authorised us to copy it to the other parties in the litigation and so we have not done so. If you are minded that copies should be made available to those parties, we will be grateful for the opportunity to make representations to you if that is thought appropriate, before disclosure."

24 March 2005

Sir Michael Turner replied to Mr Lumsden, his letter includes the following:

"Thank you for your letter dated 23 March and the report which accompanied it. As so often happens, a full investigation has shown a balanced picture which is, sadly, not always the case with a poorly researched article. You report explains the well understood relationship of any Trades Union to its members where they may have suffered personal injury in the course of their employment. It would not appear that the relationship between the (locally based) NUM and the individual claimant is any different in principle from that which obtains in other fields. There is nothing in the article which, in the light of your thorough report, requires either to be considered by me or referred to the Law Society. If the Audit Office has decided to undertake its own investigation, it would be surprising if it came to conclusions other than your own.

From my point of view, the issue having been raised, I can see no objection to the release of your report to other members of the CG. It might serve to allay doubts which may have arisen in regard to the conduct of the NUM which as I have said, appear to be groundless."

Neither the letter nor the report were disclosed to the other parties. Disclosure was not made to the DTI.

4 August 2005

A letter sent by Simon Evans, a partner in GWM to Sir Michael Turner. The letter included the following:

"I am sorry to write to you uninvited but would like to formally notify you, of my firm, Greene Wood and McLean LLP's intention to apply in the very near future to the High Court in London for a Group Litigation Order ("GLO") on behalf of any miners who have been charged unnecessary fees by their Unions, and/or Solicitors or Claims Handling Organisations appointed by the former, in connection with their compensation claims brought under the DTI "Coal Health" Scheme.

In the light of the above our firm would consider itself to be an interested party in respect of the issues which we understand were discussed at the Hearing before you at High Court on 5^th July 2005.

We also understand that at the Hearing the issue of the lawfulness or otherwise of the DTI Claims Handling Agreement with the Union of Democratic Miners (UDM) and its subsidiary Vendside Limited was debated. Clearly the lawfulness of this Agreement is significant to our clients in respect of their proposed claims. We would therefore wish as an interested party to be involved in any further discussion concerning this issue and the operation of the Scheme generally. To this end, we would be very grateful if you would kindly keep us abreast of any developments in this regard. In particular, we would welcome the opportunity to make representations at any further Hearing concerning the Scheme."

7 August 2005

Sir Michael Turner replied to the letter from GWM. His letter contains the following:

"… It is not immediately clear to me why you should be writing to me, except perhaps as a matter of courtesy. The issue of the legality, or otherwise of the agreements made between UDM, Vendside and any other claims handling organisation is not a matter which is of interest in the litigation of which I am the Managing Judge. If you were present at the meeting which was held on 5 July, you would appreciate that the enforceability of agreements between the named organisation and the individual miners is something which the Law Society was to investigate, and possibly litigate, with interested solicitors. It was not the intention or expectation that the BCRDL would be concerned directly with the issue.

I would be grateful to receive your assurance that you will send a copy of your letter to me to the Chief Executive of the Law Society.

If you wish to be present and make representations to the Court in relation to any matter of true mutual interest, you should notify Nabarro Nathanson (DTI) and Irwin Mitchell (CG) of your intention so to do at the earliest reasonable opportunity, identifying the issue(s) which you wish to ventilate. I have taken the liberty of copying your letter to them so that they will already be aware of your potential involvement."

24 October 2005

Mr Lumsden wrote to Sir Michael Turner seeking his permission to present the report and Sir Michael Turner's letter of response to the Law Society who were investigating the deductions from damages by a number of solicitors' firms and were meeting with Thompsons in the near future. The letter included the following:

"At the Court Hearing in July this year, the Law Society reported that it had been discussing deductions from damages for a number of firms who do so under client authority. The Society will be meeting my colleagues and Thompsons England and Wales very soon.

My colleagues are anxious that all of the material that might be relevant to a full and proper consideration of matters should be available to the Society, including the CG Report and your letter of 24 March which responds to it, I have attached the letter to this email for your convenience.

Although your response was not designated as a confidential item, you may recall that the report itself was submitted to you as the document which the NUM proposed should remain confidential, unless you are minded that it should be available to other parties, in which event the Union asked for the opportunity to be heard by the Court. As it transpired, this was not necessary.

Thompsons would now like to present the report and your letter of response to it as part of the paperwork that the Law Society will review and have asked me to write to you in case you have any difficulty with that. I have discussed the matter with Mr Tucker and although neither of us believe that there should be a fundamental difficulty, we both think it right to seek your approval …"

25 October 2005

An email from Sir Michael Turner to Mr Lumsden:

"I am content that my letter of 24 March 2005 should be released to the Law Society, as you have requested."

27 October 2005

An email from Lawrence Lumsden to Phil Smith (Thompsons) Geoff Shears (Thompsons). Subject; "Application for a Group Litigation Order." This email, which the claimant refers to as the "strategy email" contains the following:

"See enclosed – a large bundle, I suggest you have someone print off one copy and take further copies for whoever needs them.

I also suggest that you defer sending your response to Greene Wood McLean until you have considered their GLO …

Our thinking is to ask judge to convene special hearing, citing damage to scheme, flush out opportunistic approach masquerading as outrage over miners, get the judge to deal with Vendside contract issue and stay GLO or refer to our judge pending Vendside issue being determined.

Flush out what their case is supposed to be in law – other than failures of various professional kinds that are for the Law Society and not the copurts, to deal with - probably at bottom, an argument that union services being extended and level of deduction applied, under false pretenses and solicitor complicit in this …"

10 November 2005

A letter from Irwin Mitchell to Sir Michael Turner. The letter is headed "British Coal Respiratory Disease Litigation Solicitors Group" at the end of the first page is printed "Co-ordinating Group". Five firms of solicitors are identified, one of which is Thompsons, Newcastle upon Tyne. The letter includes the following:

"We write to notify the Court of applications the Claimants propose to pursue arising as a consequence of events that have taken place since June of this year culminating recently in a press release issued by an organisation called Action Group For Miners to coincide with the lodging of an application for a Group Litigation Order by Greene Wood and McLean on behalf of a number of Claimants.

The CG on behalf of the CSG, plainly have responsibility for pursuing the best interests of Claimants who seek to recover damages from British Coal Corporation/the DTI for respiratory diseases. However, we believe that our role extends further and that we have a responsibility as custodians of the scheme (together with the Court and the DTI). It is this feature of our role that gives rise to the applications we propose to bring before the court which, in outline, are as follows: -

1. That the Court should order that the GLO application is listed before you and stayed on terms that interested parties appear before the Court so that further directions may be given for the determination of the validity of the various Vendside agreements entered into between individual Claimants and Vendside.

2. That the Court gives directions as to the terms upon which the Claimants may transfer instructions from one legal advisor to another. …

We have copied this letter to the DTI and invite them to inform the Court as to whether or not in their role, as custodians of the scheme, they support the proposed applications. We have also copied this letter to the Law Society, to Greene Wood and McLean and to the solicitors named in the GLO application. …"

11 November 2005

A letter from the Senior Master, Master Robert Turner, to a number of solicitors, including Greene Wood and McLean. The letter begins:

"Sir Michael Turner has now directed that this application for a GLO is to be made to him.

The conversations which some of you may have had with my PA, Maxine, concerning dates of availability and any correspondence you have sent in with dates to avoid are now non-valid as this case is being dealt with by Sir Michael Turner."

Thompsons were not one of the firms of solicitors to whom this letter was sent.

26 October 2010

The judgment of Cooke J ([2010] EWHC 2679 (Comm)) in the litigation between GWM, Templeton Insurance Limited and others which included, as parties, counsel instructed in the GLO application. It provides a clear and detailed account of the history of the litigation, its background and the thinking of those involved who either gave or received professional advice. Specifically it considers the judgment of Sir Michael Turner in refusing the application for a GLO. There is nothing in the judgment which indicates that Cooke J was aware of the letter written by Mr Lumsden to Sir Michael Turner dated 23 March 2005 nor of Sir Michael Turner's reply dated 24 March 2005.

Section 32 The Limitation Act 1960

56. Whether or not the Master relied upon the authority of Mortgage Corporation and Johnson, both parties are agreed that the material decision is that of the House of Lords in Cave and Robinson above in which the relevant test for the application of the concealment provision of section 32 is identified. Following that authority, a claimant can invoke s.32(1)(b) in order to defeat a Limitation Act defence if he can show that some fact relevant to his right of action has been concealed from him either by a positive act of concealment or by a withholding of relevant information, but in either case, with the intention of concealing the fact or facts in question.
57. In the context of this case, I find that the relevant facts begin in the letters of Mr Lumsden and Sir Michael Turner dated respectively 23/24 March 2005. Mr Lumsden did not disclose the letters to the DTI nor, it would appear, to any other relevant parties. Sir Michael's letter was not disclosed to GWM who, by October 2005, were known by Mr Lumsden to be seeking a GLO. It was Mr Lumsden's email of 27 October 2005 which, on the evidence thus far, raised the issue of Sir Michael Turner hearing the GLO application. Within a matter of weeks of that email, Irwin Mitchell wrote to Sir Michael Turner requesting that he take control of the GLO application. Undisputed is the fact that, the next day, by a direction to the Senior Master, Sir Michael did precisely that.
58. The significance of the March letters is, in my view, critical to subsequent events given: (a) Sir Michael, upon his own direction, took control of the GLO application; and (b) his decision is now relied upon by the defendants as breaking any causal link which the claimant alleges as to loss.
59. That Mr Lumsden was not acting alone is demonstrated by his email of 27 October 2005. As to the extent of the non-disclosure of the letters of 23/24 March, it is difficult, even now, to be certain. I regard, as significant, that in the trial in 2010 before Cooke J, which dealt in detail with the history of the GLO litigation, none of the parties appear to have been aware of these letters.

Evidence before the Master

60. I do not accept the defendants' contention that there was no evidence before the Master of active concealment by any or all of the defendants of any fact relevant to the claimant's right of action. In my view, the history of the non-disclosure of the letters of 23/24 March 2005 provides such evidence. By October 2005 the email of Mr Lumsden to colleagues in Thompsons identifies the thinking as to the proposed application by GWM for a GLO. It is of note that this was sent just two days after Mr Lumsden had received a confirmatory response from Sir Michael permitting his letter of 24 March 2005 to be disclosed to the Law Society. There is no evidence to indicate that disclosure of the March 2005 letters of Mr Lumsden and Sir Michael Turner was made to GWM at or before this time. There is no evidence to indicate similar disclosure of the correspondence between Mr Lumsden and Sir Michael Turner in October 2005. The views of Sir Michael Turner, as expressed in his letter of 24 March 2005 and confirmed in October 2005, were clearly relevant to his appointment as the GLO judge.

Constructive knowledge/reasonable diligence

61. The history of disclosure of documents in these proceedings serves to underline how difficult it has been for the claimant to obtain access to relevant documentation. I accept the point made on behalf of the claimant that on the evidence thus far, there appears to have been a conscious decision for an indeterminate period not to disclose Sir Michael's letter dated 24 March 2005 outside a limited group of people. It is of note that even in the litigation before Cooke J in 2010, no party appears to be aware of the existence of the letter. These are matters which are relevant to any likely knowledge on the part of the claimant or, more particularly, what could have been achieved through reasonable diligence.
62. As to the defendants' submission that had those previously acting for GWM made an application for Sir Michael to recuse himself, the letters would have been disclosed, I would say this:

i) had GWM been aware of Sir Michael's view as expressed in the 24 March 2005 letter and confirmed in his October 2005 email, it is inconceivable that a recusal application would not have been made;

ii) a view that a judge is "potentially hostile", of itself, provides no adequate ground for recusal; no criticism can sensibly be levelled for a failure to take this point;

iii) given the history since March 2005 of non-disclosure of these documents, I have less than complete confidence in the defendants' assertion that a letter querying the appointment of Sir Michael or seeking his removal would have resulted in their disclosure.

63. The approach of the claimant to disclosure has, from the outset of these proceedings, been one of diligence. I do not regard their frank admission that the significance of the 24 March 2005 letter was missed when it was disclosed as one of a batch of over 400 documents as damaging to the overall merit of their application to amend.
64. As to the points raised additionally on this appeal, there is, in my view, no merit in the argument that the pleaded amendments do not allege concealment. Such a case is clearly pleaded in sub paragraphs 181A.1 to 181A.5 of the Amended Particulars of Claim.
65. On the evidence before Master Cook, the conclusion reached by him upon Section 32 the 1980 Act is reasonable. There was sufficient evidence to permit him to reach a decision as to concealment given the history of non-disclosure of the March 2005 letters. Further, as to the constructive knowledge, efforts by the claimant within the context of these proceedings demonstrate that even diligence does not easily produce results.

New cause of action

66. I accept the claimant's case that the additional allegations arise from the averments in the Defence that Sir Michael Turner's subsequent decision breaks the chain of causation and that he had given the defendants a reassurance about their conduct in correspondence. The Defence clearly put causation at the centre of their case linked to it was the defendants' motivation to act as the claimant alleges. In my view the amendments now relied upon do arise out of "substantially the same facts as those already in issue". Had disclosure been given at the outset of these proceedings, they could have been pleaded in the original Particulars of Claim.
67. As to the decision of Master Cook upon this point, he correctly identified causation as having been put in issue by the defendants in their Defence. He had regard to the totality of the facts put in issue in that pleading and did so with an extensive knowledge of the evidence and procedural history of the case. The Master correctly noted that the new facts went further than the original pleading but this, of itself, does not prevent an amendment being allowed. In Hemmingway and The Convergence Group above, it was recognised that the amendments granted would inevitably introduce new facts into the case. This case has a lengthy history, the facts are not simple. It is inevitable that amendments allowed on existing facts will introduce either new facts or new elements of those facts. That cannot prevent an amendment being made when the same has clearly been put in issue by the defendants and is reflected in the essential factual issues raised in the original Particulars of Claim.
68. As to the exercise of his discretion by the Master, I take account of his familiarity with the detail of the case and its history and the fact that his decision was a qualitative judgment on a case management decision. Given my own view that the proposed amendments arose from the same or substantially the same facts as those in issue of the proceedings, I reject what has to be the defendants' case, namely the Master's decision was outwith the ambit within which reasonable disagreement is possible on these matters.
69. For the reasons stated, I dismiss this appeal.