Kuwait Airways Corporation v Iraqi Airways Corporation

An omission from later pleadings of claims previously included in a writ does not necessarily constitute an irrevocable abandonment. Even if properly described as abandonment, it is a factor in the court’s discretion on an amendment application. Under CPR Part 17.4, a new claim may be added after limitation has expired where it arises from the same or substantially the same facts as an existing claim. Appellate courts should exercise restraint when reviewing case-management decisions, intervening only for legal misdirection or a decision outside the generous ambit of reasonable disagreement.

Kuwait Airways Corporation sought damages from Iraqi Airways Corporation for the conversion or interference with aircraft spares following the invasion of Kuwait. In 1996 and 1997 schedules served pursuant to an order of Cresswell J, three categories of spares were omitted from the pleaded claim. KAC later applied to amend its points of claim to restore them.

Langley J allowed the amendment, although the omission might amount to abandonment and the claims might be time-barred. Iraqi Airways appealed, contending that abandonment deprived the judge of any discretion, that CPR Part 17.4 was not satisfied, and that the discretion had been wrongly exercised.

1. Appeal dismissed. The order permitting KAC to amend was upheld, with KAC to pay IAC’s costs, summarily assessed at £30,000.
2. Any common-law concept that claims pleaded in a writ but omitted from later points of claim are abandoned does not prevent the court from permitting their restoration by amendment in a proper case. The authorities relied on concerning election between inconsistent remedies did not establish an absolute bar. The existence and circumstances of any abandonment were matters for the judge’s discretion.
3. The proposed claims satisfied CPR Part 17.4(2). The aircraft spares were alleged to have been taken during the invasion, thereafter vested in and used by IAC, and remained at its disposal unless returned. The alleged interference was capable of constituting a continuing tort. The three categories therefore arose out of the same or substantially the same facts as the existing claims.
4. The judge was entitled to permit the amendment despite the age of the action, the deliberate omission of one category, possible limitation issues, and alleged litigation prejudice. Those matters had been considered and the balance of prejudice reasonably favoured allowing KAC an opportunity to prove claims affecting quantum rather than the substantive issues.
5. Case-management decisions should preferably not be appealed. On appeal, the court should show all possible restraint and should not interfere unless the judge misdirected himself in law or reached a decision that exceeded the generous ambit within which reasonable disagreement is permitted.

Sir Martin Nourse and Lord Justice Pill agreed with Lord Justice Longmore. Lord Justice Pill additionally emphasised that there was no rule of law preventing amendment to restore scheduled items previously abandoned.

• Court of Appeal (Civil Division): dismissed the appeal and upheld Langley J’s permission to amend.
• Commercial Court: Langley J exercised his discretion to permit amendment to include the three omitted categories of spares.