Summary

Although a deputy master had erred in his approach when refusing an application to amend a statement of case claiming payment for consultancy fees, he had reached the correct conclusion by refusing the amendments. The proposed new claims did not arise out of the same or substantially the same facts.

Facts

The appellant appealed against a deputy master's refusal of its application to re-amend its particulars of claim.

Through the appellant, a consultant chartered surveyor had worked as a contractor for the respondent supermarket chain to help it identify suitable sites on which to develop more stores. Under an agreement made in 1999 the consultant had agreed to work on an exclusive basis. The agreement provided for three categories of payment for his services: (1) if he introduced a site which the respondent went on to develop; (2) if a third party introduced a site; (3) and if the consultant had done work concerning a town with a view to identifying a site and the respondent went on to acquire a site in that town. The agreement was terminated in 2008 and the appellant began proceedings seeking payment of money alleged to be due under the agreement. The appellant, with the respondent's consent, amended its particulars of claim to include additional alleged terms in relation to his ability to claim the third category of payments. The appellant later applied to re-amend its claim to include, for the first time, several claims for category three payments. The master refused the application on the grounds that the proposed new claims were hopeless and because they were outside the limitation period. The respondent conceded that the master had applied the limitation period to too many of the proposed new claims.

Held

The master had contradicted himself by seeming to assert that the appellant could bring the category three claims, but then saying that they were hopeless. However, he had reached the right conclusion, save in respect of two of the claims which were not actually category three claims. The alleged terms that the appellant had introduced by the first amendment were implied rather than express terms. If such terms were implied, they would apply for a very long time and in circumstances where the consultant had done very little work. It was not necessary to imply such terms into the agreement. Although the respondent had consented to the first amendment it had had no reason to object because no category three claims had been made at the time. Its consent did not represent a bar to it objecting to the re-amendments. The master had fallen into error in finding that all of the proposed new claims were outside the limitation period and it was for the instant court to reconsider the position. The claims were debt claims and some of them claimed that payment had been due more than six years before the instant hearing, or before the hearing before the master. In relation to the claims due for payment within six years, under CPR r.17.4 the amendment would only be allowed if the new cause of action arose out of the same or substantially the same facts. The notes to The White Book confirmed that that requirement was imperative. Applying that approach, and exercising the court's discretion afresh, the amendments would be refused. The category three claims concerned different towns, counties, sites and timings. Those claims did not arise out of the same facts as the already pleaded claims.

Appeal dismissed