Bonnier Books UK Group Holdings Limited & Ors v Haysmacintyre LLP
[2022] EWHC 3170 (Comm)
Qatar Investment and Project Development Holding Co & Anor v Phoenix Ancient Art S.A. & Ors
20 July 2023
[2023] EWHC 1916 (KB)
High Court
A company bought a statue that turned out to be fake. They sued the seller, and wanted to add more people to the lawsuit for lying and cheating. The judge let them, saying it was fair even though they waited a while to add these new claims because the sellers hid evidence of their wrongdoing.
Key Facts
- •QIPCO purchased a chalcedony statuette (the 'Nike') from Phoenix Ancient Art S.A. in 2013 for US$2.2m under an SPA governed by English law.
- •In 2018, QIPCO raised concerns about the Nike's authenticity, discovering modern markings.
- •QIPCO issued a claim against Phoenix in 2020 for breach of contract/negligence/misrepresentation.
- •Claimants sought to amend their particulars of claim to add claims for deceit, fraudulent misrepresentation, and unlawful means conspiracy against Phoenix and three new defendants.
- •The new defendants were joined by Master McCloud's order in March 2023.
- •The Fourth Defendant had not been served at the time of the hearing.
- •The First to Third Defendants challenged the jurisdiction of the English court and the proposed amendments.
- •The Claimants argued that damage was sustained within the jurisdiction (England and Wales).
Legal Principles
Principles for amending statements of case, considering the overriding objective and balance of injustice.
CPR r.17.1(2), Quah Ling v Goldman Sachs [2015] EWHC 759 (Comm) at [38]
Test for amending claims outside the limitation period, including the 'same facts' test.
CPR r.17.4, Mulalley & Co v Martlet Homes [2022] EWCA Civ 32 at [38], Paragon Finance Plc v DB Thakerar & Co (A Firm) [1999] 1 All E.R. 400
Applicable law for torts, considering the place of damage and Rome II.
Regulation (EC) No 864/2007 (Rome II)
Postponement of limitation period for fraud or concealment.
Section 32 of the Limitation Act 1980
Admissibility of similar fact evidence in civil cases.
O’Brien v Chief Constable of South Wales Police [2005] 2 AC 534
Full and frank disclosure duty in applications to serve out of the jurisdiction.
CPR r.19.6(2), Section 35(3) of the Limitation Act 1980, CPR r.17.4
Outcomes
Permission granted for amendments clarifying breach of contract, negligence, and negligent misrepresentation claims.
Amendments were largely clarifications or particularisation of existing claims.
Permission granted for amendment to paragraph 28 (clarification of damages claim).
Amendment was considered a clarification and particularisation of existing claims, not a new claim.
Jurisdiction upheld for claims against Second and Third Defendants.
Claimants provided sufficient evidence that damage was sustained in England and Wales; Defendants failed to provide counter-evidence.
Master McCloud's order joining Second and Third Defendants upheld.
No credible grounds for suggesting a failure of full and frank disclosure.
Permission granted for amendments adding claims of deceit, fraudulent misrepresentation, and unlawful means conspiracy.
Claimants demonstrated that it was not reasonably arguable that the claims were outside the applicable limitation period due to s.32 of the Limitation Act 1980 (fraudulent concealment); the balance of justice favoured granting the amendments.
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