Summary

The Part 20 claimant's procedural error did not amount to an abuse of process so there were no grounds for refusing it permission to amend its pleadings.

Facts

CPR Part 20 claimant's ('H') appeal from the order of HH Judge Bowsher on 18 July 2003 to dismiss H's application to amend pleadings on the basis that the proposed amendments would give rise to a new cause of action. H, a building developer, had retained the Part 20 defendant ('W') to act as its engineer. In reliance on W's advice, H entered a contract for the construction of stores on the land with the landowner ('L'), who then entered into agreements for leases with two companies ('Aldi' and 'B&Q') when the development was complete. Under the contract, H had agreed to execute deeds of warranty with third party companies as specified by L. After completion of the development and execution of the leases, differential settlement occurred and the buildings began to crack. In response to Aldi's and B&Q's commencement of proceedings against it, H issued Part 20 proceedings against W. The issue of limitation arose, and H sought to amend pleadings. The judge held that amendment would give rise to a new cause of action and should not be allowed as the application could have been made earlier. The issues were: (i) whether the amendment of Part 20 proceedings in the Aldi action to add claims for indemnity involved the addition of new claims within s.35(1) Limitation Act 1980 and CPR 17.4; (ii) whether the new claims arose out of the same or substantially the same facts; and (iii) whether, in the circumstances of the case, this court should exercise its discretion to allow the amendments. W argued that: (a) the proposed amendments introduced a new claim; (b) relying on Gordon v (1) J B Wheatley Co (a firm) & Anor (2000) Lloyds PN 605, a new claim and new cause of action arose every time that H had entered into a deed of warranty; and (c) the amendments should be disallowed as they were not necessary to ensure that the true matters of controversy were before the court, or alternatively, that they were an abuse of process.

Held

(1) The amendments did not introduce a new cause of action and therefore would not add a new claim against W. The amendments merely represented new heads of loss to those already pleaded. No new alleged breach of duty was proposed by the amendments. Gordon (supra) could be distinguished. (2) The fact that H would still have to prove a causal link was not sufficient to show that there was a new claim. (3) (Obiter) There was no doubt that any new claim, if there was one, would arise out of the same or substantially the same facts. There was a sufficient overlap between the existing Part 20 proceedings and the proposed amendments to satisfy the tests in s.35(1) of the 1980 Act and CPR 17.4(2). (4) Whether one party should be permitted to amend pleadings did not depend on whether it was necessary for the decision on the matters in controversy, but depended instead on whether there was an abuse of process or resultant injustice. H's attempt to make good its procedural error did not amount to an abuse of process. There were no grounds for this court not to exercise the discretion to allow the amendments.

Appeal allowed.