Charles Church Developments Ltd v Stent Foundations Ltd & Anor

After expiry of the limitation period, the court may permit a new cause of action to be added where it arises out of the same or substantially the same facts already in issue in the proceedings. The relevant facts may have been pleaded by any defendant, not only by the defendant against whom the new claim is brought. The statutory and procedural threshold confers a discretion rather than an entitlement. The court must then consider the circumstances, including prejudice, trial efficiency and whether any injustice can be compensated by costs.

The claimant sought permission to amend its particulars of claim after the limitation period had expired. It already claimed against Stent Foundations Limited and Peter Dann Limited concerning damage allegedly caused during piling and basement construction works. The proposed amendment introduced a new claim against Stent concerning the second incident, relying substantially on facts pleaded by Dann in its defence.

Stent opposed the amendment, arguing that the new claim did not arise from facts already in issue against Stent and that permission should be refused in the court’s discretion. The central issue was whether facts pleaded by one defendant could satisfy the requirement in section 35 of the Limitation Act 1980 and CPR rule 17.4.

1. Application granted. The claimant was permitted to make all the proposed amendments, including those opposed by Stent. Stent was given permission to appeal.
2. Section 35(5)(a) of the Limitation Act 1980 and the expanded version of CPR rule 17.4(2), identified in Goode v Martin [2001] EWCA Civ 1899; [2002] 1 All ER 620, confer a discretionary power to permit a new cause of action after limitation where it arises from the same or substantially the same facts already in issue.
3. The relevant facts may have been put in issue by the defence of any defendant. The court was not entitled, as a first-instance court, to narrow the Court of Appeal’s formulation by inserting a requirement that the facts be in issue against the defendant facing the new claim. This approach was consistent with the reasoning in Lloyds Bank plc v Rogers [1977] TLR 154 and the test stated in Hemmingway v Smith Roddam [2003] EWCA Civ 1342.
4. The threshold condition did not require permission to be granted. The court retained a discretion to refuse an amendment where the circumstances caused injustice or significant prejudice. Here, the allegations would be investigated at trial in any event, Stent would face substantially the same allegations in contribution proceedings, no significant prejudice was shown, and the amendments would not materially enlarge disclosure, expert evidence or the trial. The claimant’s delay and non-compliance with the Pre-action Protocol could be addressed through costs and did not justify refusal.

First-instance decision. The judgment records an earlier Case Management Conference before Ramsey J, but no appellate decision is stated.