LIMITATION OF ACTIONProposed amendment to claim outside limitation period - whether adding new cause of action - court to compare essential facts pleaded in amendment with those in existing pleadingSavings and Investment Bank Ltd (in liquidation) v Fincken: CA (Lords Justice Peter Gibson, Robert Walker and Keene): 6 November 2001The claimant bank brought an action for breach of warranty and fraudulent misrepresentation against the defendant.It sought to amend its statement of claim after expiry of the limitation period to plead, as further particulars, that the defendant had failed to disclose material assets in breach of warranty, his non-disclosure of guns, and to plead allegations relating to ownership of the guns as further particulars of its allegation of fraudulent misrepresentation.A master permitted the amendment and refused the defendant summary judgment on a claim for rescission.

The judge allowed the defendant's appeal.

The claimant appealed.Elizabeth Gloster QC and David Ashton (instructed by DJ Freeman) for the claimant.

Adrian Francis (instructed by Radcliffes) for the defendant.Held, allowing the appeal, that when deciding whether a proposed amendment after the expiry of the limitation period asserted a new cause of action for limitation purposes, the court should compare the pleading before the proposed amendment with the pleading in its amended form; that that required the court to examine the pleading of the essential facts which needed to be proved, and for that purpose the non-essential facts had to be left out of account as mere instances or particulars of essential fact; that in the contractual claim the material facts were simply the giving of a warranty and its breach, which had occurred by non disclosure of material assets in 1992; that in the tortious claim the judge had been wrong to take into account the remedy sought since a claim for a new remedy was not a new cause of action; and that, accordingly, the master's decision would be restored.