Senior & Anor v Pearson & Ward (A Firm)

After expiry of the limitation period, an amendment adding a new cause of action may be permitted only if it arises out of the same facts or substantially the same facts as a claim for which a remedy was already sought. Whether that requirement is met is substantially a matter of impression, assessed by reference to the facts of the particular case. The court should avoid over-analysis of decisions involving different facts. Where the existing claim requires investigation of communications and instructions between solicitor and client, related allegations that the solicitor failed to give advice may arise from substantially the same facts. If the statutory and procedural conditions are met, permission remains discretionary, with prejudice and evidential impact relevant to its exercise.

The claimants, owners of a hotel and public house, sued their former solicitors for allegedly acting without instructions in confirming that vacant possession would be given on completion of a sale. They later sought to amend their particulars of claim to allege failures to advise and to plead an alternative measure of damages. The limitation period had expired.

His Honour Judge Behrens, sitting in the Chancery Division at Leeds District Registry, refused permission on the basis that the proposed amendments introduced new causes of action which did not arise from the same facts as the original claim. The central issue on appeal was whether the proposed claims satisfied the statutory and procedural test and, if so, whether permission should be granted.

1. Appeal allowed. Permission was granted to amend the particulars of claim as sought.
2. The amendment enlarging an allegation that the solicitor knew a representation was false to include that he should have realised it was false could be treated as adding a new claim. Nevertheless, it arose out of the same or substantially the same facts as the original claim.
3. The allegations that the solicitors failed to advise the claimants about the negotiations, the absence of effective security, the purchaser’s reliance on borrowing and the desirability of continuing to market the property were distinct from the allegation that the solicitors acted without or contrary to instructions. They therefore amounted to new claims.
4. The relevant question under Limitation Act 1980, section 35(5)(a), and CPR rule 17.4(2), was whether those new claims arose out of the same facts or substantially the same facts as a claim for which a remedy had already been claimed. The existing claim put the instructions given at the critical meeting in issue. Determining those instructions would require examination of substantially the same oral and written communications as the proposed failure-to-advise claims.
5. Whether the test was satisfied was substantially a matter of impression. The court should focus on the facts of the particular case and should not resolve the issue by over-analysing decisions concerning different factual situations. The approach reflected the observation in Darlington Building Society and Abbey National Plc v O'Rourke James Scourfield & McCarthy [1999] 1 Lloyd's Law Reports 33.
6. Once the statutory and procedural condition was satisfied, the court had a discretion. The lapse of time did not justify refusing the amendments because the evidence would substantially be the same, the solicitor would suffer no material additional evidential disadvantage, and the amendments would not require an adjournment or materially lengthen the trial.
7. The order below was varied to make no order as to costs. The appellants received the costs of the appeal, and the costs of and occasioned by the amendment were payable by the appellant.

• Court of Appeal (Civil Division): Senior & Anor v Pearson & Ward (A Firm), [2001] EWCA Civ 229. Appeal allowed and permission granted to amend.
• Chancery Division, Leeds District Registry: His Honour Judge Behrens refused permission to amend on 29 September 2000, holding that the proposed amendments introduced new causes of action after expiry of the limitation period.