Hemmingway & Anor v Roddam (a firm) & Ors

Permission to amend pleadings after expiry of limitation involves jurisdiction and discretion. Under the Civil Procedure Rules 1998 r 17.4(2), the new claim must arise from the same or substantially the same facts already in issue. Those facts are not confined to the claimant’s pleading; matters raised by the defence may count. The court must analyse the original pleadings to identify what would have been litigated at trial. Where the amendments arise from those facts, the discretion should be exercised so that the real issues can be tried satisfactorily, without artificially dividing liability and causation.

The claimants appealed after the High Court refused permission for several amendments to their professional-negligence claim against solicitors who had acted on a business purchase. The transaction completed in March 1995, the claim form was issued in January 2001, and amendments were proposed in October 2002. His Honour Judge Behrens allowed amendments substantially relating to the original pleaded facts but held that he lacked jurisdiction for others under CPR 17.4 and would in any event refuse them in his discretion. The appeal concerned whether the proposed amendments arose from the same or substantially the same facts already in issue, including matters raised by the defence, and whether permission should be granted.

Appeal allowed. Lord Justice Waller delivered the principal judgment and Lord Justice Clarke agreed.

1. Jurisdiction. The court treated the application as involving two questions: whether the proposed claims arose from the same or substantially the same facts already in issue, and, if so, whether permission should be granted in the exercise of discretion. Under Civil Procedure Rules 1998 r 17.4(2), read with section 35(5)(a) of the Limitation Act 1980, the relevant facts are those which would be litigated between the parties. The Court of Appeal’s reasoning in Goode v Martin [2002] All ER 620 supported treating facts pleaded in the defence as part of the facts in issue. Waller LJ also relied on the policy stated in a dictum of Hobhouse LJ in Lloyds Bank v Rogers (unreported).
2. Construction of the pleadings. The original particulars alleged a retainer, a duty of reasonable skill and care, failures to advise against the purchase, and causation. The defence put in issue the scope of the retainer, whether the defendants had a duty to advise against the transaction, the warnings allegedly given, and whether the claimants appeared able to make their own decisions. Those matters would have been litigated at trial. The proposed amendments therefore arose from the same or substantially the same facts. Waller LJ considered it strongly arguable that no new cause of action was pleaded; even assuming that new causes were involved, the statutory test was met. Clarke LJ added that the matters in paragraph 3(A) could have been pleaded in reply.
3. Discretion. The judge had not fully analysed the original pleadings, including the defence, before deciding either jurisdiction or discretion. The Court of Appeal was therefore entitled to reconsider the discretion afresh. Although the claim was stale, the delay already affected the underlying litigation. A satisfactory trial required the real issues to be determined without artificially dividing matters relevant to liability from those relevant to causation. Permission was accordingly granted.
4. Order. The final formally pleaded particulars were to be served within 14 days, with the reply 28 days later. The claimants were awarded 60 per cent of the costs below. The costs of the appeal were costs in the case.

• Court of Appeal (Civil Division) allowed the appeal and permitted the amendments under appeal. [2003] EWCA Civ 1342
• High Court, Newcastle upon Tyne District Registry, His Honour Judge Behrens, allowed amendments substantially relating to the original pleaded facts but refused others for want of jurisdiction under CPR 17.4 and, alternatively, in the exercise of discretion. Permission to appeal was refused.