Davies & Ors v Jones & Anor: LIDL UK GMBH & Anor v Davies & Ors [2008] CA

D, trustees of a pension scheme and owners of land, agreed to sell the land to J. The contract made provision for a sum of money to be held back from the purchase price upon completion, until various works were completed. It was agreed that J would complete the work and would be entitled to retain half the cost of such work. When D was sent the form of transfer, the name of the transferee was L to which D did not object. L completed the work but did not release any of the sums that had been retained on the basis that the works carried out exceeded those sums. D issued proceedings against J and L for repayment. After issuing, D became aware that J had pre-sold the land to L and had made an immediate profit. D applied to amend the Particulars of Claim, after limitation had expired, to include a claim for breach of trust and a claim that L had been aware of the contract and held the sums retained under a constructive trust. The Judge allowed the amendment and ordered D to pay L’s costs. L appealed the decision to allow amendment and D cross-appealed the costs order.

Held: A new cause of action could not be added by amendment after expiry of limitation unless it arose out of the same, or substantially the same facts as originally pleaded. It was clear the claim for breach of trust arose out of the averments in L’s defence. It was normal for the applicant to pay costs for an application to amend. Both appeals dismissed.