“With regard to the unjustifiable extravagance in living, the learned County Court judge said that the debtor acted under the bonâ fide belief which was shared by others, that trade would soon revive. Now, a man, of course has a perfect right as long as he is solvent, to determine that he will go on with a business, although it may be a losing business. He may trust that before he becomes insolvent matters will change, and he will again be in a condition of prosperity. But the moment he becomes insolvent, then he is no longer going on at his own risk in case of failure; he is going on at the risk of his creditors, in case things do not mend as he hopes they will. In my judgment a man has no right to do that. The moment things have got to such a pitch that he cannot pay 20s. in the pound, but he nevertheless thinks that if he goes on he may be able to retrieve his position, in my opinion he ought to call his creditors together, and leave them who will have to bear the loss in case his calculations are wrong, to determine whether that course of going on shall be proceeded with or not. Now, the learned County Court judge says the extravagance in living was done with a view to maintain his position and keep up appearances, and further that it was necessary for the purpose of enabling him, should such an improvement not take place, to sell his iron foundry at a larger price. I confess I cannot understand at all that view. A man is bound not to keep up appearances, but to pay his debts, and if his profits will not allow of his living at the particular rate he has been accustomed to live at, then his plain duty is to reduce his scale of living, and not to go on living out of the money of his creditors. As to keeping up the reputation of the business, that again I fail to understand, because, it is meant by that that an intending purchaser seeing him living at a particular rate, will assume from that that the business is a profitable one, and give more than he otherwise would for the business. That cannot be commended, certainly, as being honest to the purchaser. It is an attempt to delude him by a fictitious appearance of prosperity. I cannot regard that as being a reasonable excuse for spending more money than the trader is aware he is able in justice to his creditors to expend.”
“41. Sub-section (2) applies where there has been a “deliberate commission of a breach of duty”
“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.”
“19. Leaving aside the limitation issue, to which I will return, I have concluded that it would be right to allow this amendment. Clearly serious questions arise as regards the reliability and credibility of Mr Giles’ evidence. These can, and I have no doubt will be, fully explored in cross-examination. But I do not consider that it would be right, without hearing Mr Giles’ evidence, to say that his account is so incredible as to make his case unsustainable. It is also true that, as Mr Giles had the memorandum before him in January 2006, it would appear that the new case, even if true, was not pleaded as a result of a culpable level of carelessness on the part of Mr Giles. I have taken that into account. I have, however, concluded that if in fact the deed was created in 1994 and back-dated to 1992 the greater injustice would be to deny Mr Giles the opportunity of establishing that case.”
“53. Before us, it was argued that a new claim sufficiently "arises out of" the same facts as an existing claim if there is a sufficient nexus between the old and the new claim, in the sense that some or a substantial part of the facts relied on to promote the new claim were relied on to promote the old claim. That takes far too broad an approach to the rule, which it effectively rewrites. The new claim does not arise out of the facts on which the old claim was based if, in order to prove it, new facts have to be added. That is why this court has said that the basic test is whether the plea introduces new facts: Goode vMartin[2002] 1 WLR 1828 at paragraph 42.”
"if a person enters into the transaction to which [s 423] applies, a range of possible claimants including many who may not exist as such at the date of the transaction, may subsequently apply to set it aside or for other relief." ([41]). As to (b), s 32(1)(b) requires the facts relevant to the cause of action to be "deliberately concealed"
“The word “fraud” here is not used in the common law sense. It is used in the equitable sense to denote conduct by the defendant or his agent such that it would be 'against conscience' for him to avail himself of the lapse of time. The cases show that, if a man knowingly commits a wrong (such as digging underground another man's coal); or a breach of contract (such as putting in bad foundations to a house), in such circumstances that it is unlikely to be found out for many a long day, he cannot rely on the Statute of Limitations as a bar to the claim: see Bulli Coal Mining Co v Osborne[1899] AC 351 and Applegate v Moss[1971] 1 QB 406 . In order to show that he 'concealed' the right of action 'by fraud', it is not necessary to show that he took active steps to conceal his wrongdoing or breach of contract. It is sufficient that he knowingly committed it and did not tell the owner anything about it. He did the wrong or committed the breach secretly. By saying nothing he keeps it secret. He conceals the right of action. He conceals it by 'fraud' as those words have been interpreted in the cases. To this word 'knowingly' there must be added ‘recklessly’: see Beaman v ARTS Ltd[1949] 1 KB 550 , 565-566. Like the man who turns a blind eye, he is aware that what he is doing may well be a wrong, or a breach of contract, but he takes the risk of it being so. He refrains from further inquiry least it should prove to be correct: and says nothing about it. The court will not allow him to get away with conduct of that kind. It may be that he has no dishonest motive: but that does not matter. He has kept the plaintiff out of the knowledge of his right of action: and that is enough: see Kitchen v Royal Air Force Association[1958] 1 WLR 563 . If the defendant was, however, quite unaware that he was committing a wrong or a breach of contract, it would be different. So if by an honest blunder he unwittingly commits a wrong (by digging another man's coal), or a breach of contract (by putting in an insufficient foundation) then he could avail himself of the Statute of Limitations.”
“2.22 The essential feature of the concealed fraud approach (as distinct from the date of knowledge approach) is that it operates on some degree of blameworthiness on the part of the defendant beyond his mere failure to comply with his legal obligations; the traditional expression is ‘unconscionable conduct’.”
“I am of opinion that the conduct of the defendants, by the very manner in which they converted the plaintiff’s chattels in breach of the confidence reposed them, and in circumstances calculated to keep in ignorance of the wrong that they had committed amounted to a fraudulent concealment of the cause of action.”