Summary

When deciding whether there was a "new claim" for the purposes of the Limitation Act 1980 s.35(2) and the associated rules under the CPR r.17.4, the court was obliged to compare the essential factual elements in the existing cause of action with the essential factual elements in the proposed cause of action: if they were the same, then there was no new cause of action and therefore no new claim.

Facts

The applicant commissioners (C) applied for permission to amend their claim in two actions against the respondents. The commissioners had brought claims against the respondents for damages arising out of a chain of transactions said to constitute missing trader intra-community or carousel frauds. The commissioners also brought claims against the respondents under the Insolvency Act 1986 s.423. In 2002, the Commissioners issued their first claim. There followed a protracted chronological history with the result that, in 2007, in order to overcome any potential limitation difficulties, the commissioners issued a further claim. The proposed amendments to the Commissioners' claims in both actions would, if allowed, result in both actions being identically pleaded, with the exception of a further defendant in the 2007 claim. The issues for determination were whether (i) any new claims would arise as a result of the amendments and, if so, whether the cause of action in each new claim arose out of the same facts or substantially the same facts as the existing claim; (iii) the court should, in the exercise of its discretion, permit the amendments.

Held

(1) When deciding whether there was a "new claim" for the purposes of the Limitation Act 1980 s.35(2) and the associated rules in the CPR r.17.4, the court was obliged to compare the essential factual elements in the existing cause of action with the essential factual elements in the proposed cause of action, Aldi Stores Ltd v Holmes Buildings Plc (2003) EWCA Civ 1882, (2005) PNLR 9, Savings & Investment Bank Ltd (In Liquidation) v Fincken (Statement of Claim) (2001) EWCA Civ 1639, Times, November 15, 2001, Lloyds Bank Plc v Rogers (No2) (1999) 3 EGLR 83 CA (Civ Div) and Letang v Cooper (1965) 1 QB 232 CA applied. If they were the same, then there was no new cause of action and, therefore, no new claim. To that end, there was no reason why the courts should not look at the further information provided in the course of proceedings for a fuller understanding of the pleaded case; provided it was not relied upon to supply the essential elements of the cause of action, Boake Allen Ltd v Revenue and Customs Commissioners (2006) EWCA Civ 25, (2006) STC 606 applied. In the instant case, it was clear, having regard both to the original particulars of claim and the copious further informations, that the amended pleadings in respect of the commissioners' relevant claims did not give rise to any new claims. If that was wrong, then the court was satisfied, in any event, that such claims arose out of the same or substantially the same facts as those relied on to found the original and existing claims. (2) Balancing the varying factors it was right, in the circumstances, to give the commissioners permission to amend the claim in both actions as a matter of the court's discretion. Although the proposed amendments would, in the context of any newly raised claims to which the Limitation Act applied, deprive the respondents of a limitation defence, the court was satisfied that there was a sufficient legal and evidential basis for the amended claims to satisfy the requirement that they had a real prospect of success, Hancock Shipping Co Ltd v Kawasaki Heavy Industries Ltd (The Casper Trader) (1992) 1 WLR 1025 CA (Civ Div) considered. Moreover, the amended claims were appropriately pleaded so as to make clear to the respondents and the court the case that the commissioners sought to advance, Humberclyde Finance Group Ltd v Hicks Unreported November 14, 2001 Ch D considered. Finally, although there had been an extraordinary lapse of time since the inception of the 2002 claim, the delay was not caused by the commissioners per se.

Application granted