Goode v Martin

A new cause of action arising from facts already in issue on an existing claim may include facts introduced by the defence. Section 35 of the Limitation Act 1980 accommodates that approach. Under section 3(1) of the Human Rights Act 1998, CPR 17.4(2) must be read as permitting amendments arising from the same or substantially the same facts already in issue on a claim for which the applicant has claimed a remedy. A restriction preventing an alternative claim based on the defendant’s own factual account requires justification under article 6. Where it serves no legitimate aim, or employs disproportionate means, that restriction cannot govern the amendment. Permission remains discretionary, and unreasonable delay may justify refusal.

Virginia Goode, a novice sailor invited aboard a yacht owned and sailed by Hugh Martin, suffered a serious head injury during a gybe. Her original negligence claim alleged that defective components of the yacht’s mainsheet traveller caused the accident. Martin subsequently pleaded a different account in which Goode was struck by the mainsheet after leaning across its track. Goode sought to add alternative allegations of negligence based on that account.

The Admiralty Registrar, Master Miller, refused permission because the proposed claim did not arise from the facts supporting the claim already pleaded. He considered that the amendment caused no factual prejudice and that delay would not otherwise justify refusal. Colman J dismissed Goode’s appeal and rejected her additional argument that the limitation period remained open because she acquired the relevant knowledge only upon receipt of Martin’s draft amended defence.

Goode appealed to the Court of Appeal. The principal issue was whether CPR 17.4(2), interpreted consistently with article 6, permitted a post-limitation amendment founded on facts introduced by the defence.

Appeal allowed unanimously. Brooke LJ delivered the substantive judgment. Latham and Kay LJJ expressly agreed.

1. Section 35(5)(a) of the Limitation Act 1980 covered a new cause of action arising from facts already in issue on the claimant’s existing claim, including facts introduced by the defence. Its policy permitted parties to rely on causes of action substantially arising from factual issues which would already be litigated. The policy expressed in Lloyd’s Bank plc v Rogers supported that construction. There was no evidence that either rules committee had intended to impose an additional restriction excluding defence facts.

2. On ordinary construction, CPR 17.4(2) would have presented an obstacle to the proposed amendment. Section 3(1) of the Human Rights Act 1998 required a Convention-compatible reading wherever possible. The interpretative techniques described in R v A [2001] UKHL 251 permitted strained language and the implication of provisions. CPR 17.4(2) could therefore be read as referring to the same or substantially the same facts as are already in issue on a claim for which the applicant had already claimed a remedy.

3. Preventing the claimant from advancing an alternative negligence case based entirely on the defendant’s own factual account imposed an unjustified impediment to access to the court. The restrictive interpretation served no legitimate aim in these circumstances. Even assuming such an aim, its means were disproportionate. Requiring a separate action, with disputed limitation issues and subsequent consolidation, did not answer that objection and was difficult to reconcile with the overriding objective. Unreasonable delay could have justified discretionary refusal, but the registrar had expressly declined to refuse permission on that basis.

4. Brooke LJ added, although unnecessary to the result, that Colman J had correctly rejected the contention that the claimant’s date of knowledge was conclusively established by receipt of the amended defence. The defendant could argue that reasonable diligence by her solicitor would have obtained the relevant information earlier. That arguable limitation defence should remain open.

The amendment was permitted. An early case management conference was directed towards setting a timetable for an early trial. The recorded order awarded appeal costs, refused the wasted-costs application against the former solicitor and refused permission to appeal to the House of Lords.

• Court of Appeal: In [2001] EWCA Civ 1899 , unanimously allowed the appeal and permitted the proposed amendment. Permission to appeal to the House of Lords was refused.
• High Court, Queen’s Bench Division, Admiralty Court: Colman J dismissed the appeal from the registrar on 7 November 2000. He also rejected the additional limitation and date-of-knowledge arguments. His refusal to disapply limitation under section 33 of the Limitation Act 1980 was not challenged in the Court of Appeal.
• Admiralty Registrar: Master Miller refused permission to amend on 16 June 2000 because he considered that CPR 17.4(2) conferred no jurisdiction to allow the new claim.