Secretary of State for Transport v Pell Frischmann Consultants Ltd.

After expiry of limitation, an amendment adding a new duty or cause of action may be allowed only where the new claim arises from the same or substantially the same facts as an existing claim. Whether there is sufficient factual overlap is a question of fact and degree, assessed as a matter of impression. The court must consider the pleading as it stands after any amendments already allowed. A different breach of an existing duty may remain within the original claim where it concerns the same subject matter, damage and mechanism of failure. In construction disputes, claims concerning different elements of a building will generally be distinct. Even where an amendment is permissible, the court retains a discretion and should consider prejudice.

The Secretary of State brought proceedings against Pell Frischmann concerning defective roller bearings installed during renovation works to Thelwall Viaduct. After the limitation period had expired, he sought to amend the particulars of claim following information exchanged during the construction protocol process and expert testing.

Pell Frischmann consented to most amendments but opposed a proposed allegation concerning electrolytic corrosion and a new paragraph alleging failures in supervising the works. The central issues were whether either amendment constituted a new claim and, if so, whether it arose out of the same or substantially the same facts as the existing claims under section 35 of the Limitation Act 1980 and CPR rule 17.4.

1. Paragraph 43(h). The proposed allegation concerning dissimilar metals and electrolytic corrosion did not introduce a new claim. It alleged breach of a previously pleaded duty, concerned the same roller bearings, relied on the previously pleaded mechanism of corrosion, extended amendments already permitted, and concerned the same loss and damage. It was therefore outside the limitation restriction in section 35 of the Limitation Act 1980 and was allowed.
2. Paragraph 44. The proposed allegations concerning supervision introduced a new category of duty and therefore constituted a new claim. Applying CPR rule 17.4(2), the court treated the amended particulars, excluding paragraph 44, as the existing claim and assessed the factual overlap.
3. The overlap was sufficient. The supervision allegations concerned essentially the same matters allegedly overlooked during design checking, the same defects, the same failure mechanism, the same loss, and broadly similar checking functions. The question was one of fact and degree and ultimately one of impression. The reasoning in Brickfield Properties Limited v Newton supported that conclusion and was binding.
4. The court adopted five relevant propositions: a newly pleaded duty usually creates a new claim; a different breach of an existing duty is assessed by fact and degree; damage to a different building element will generally constitute a new claim; substantial factual overlap is assessed as a matter of impression; and amendments already allowed are treated as part of the original claim.
5. The amendment was not materially prejudicial. The relevant works and records were documented, and Pell Frischmann had ample time to investigate and answer the allegations before trial. In the exercise of its discretion, the court allowed paragraph 44.
6. All disputed amendments were allowed.