ABB Asea Brown Boveri Ltd & Ors v Hiscox Dedicated Corporate Member Ltd & Ors

After expiry of a limitation period, a party may be substituted or added only within the statutory framework of Limitation Act 1980, section 35, and the applicable procedural rules. A mistake as to a party’s name permits correction only where the mistake is genuine and does not create reasonable doubt about the intended party. Substitution for a party named by mistake is wider, but the claim must remain materially the same. Joinder is not permitted merely because another person has a separate claim arising from the same facts or may have suffered the loss. Removing a limitation defence is itself capable of constituting prejudice, particularly where the applicants’ lack of proper inquiry caused the difficulty. Amendments adding a new claim may nevertheless be allowed where they arise from substantially the same facts.

The claimants sought permission to amend pleadings in two related actions concerning contract frustration indemnity insurance and related broker duties arising from the Korba Project in India. They sought to substitute ABB Equity Ventures B.V. for ABB Equity Ventures Inc., add Daewoo Power (India) Ltd and ABB Power Investments (India) B.V. as claimants, and amend the pleaded date and circumstances of an alleged forfeiture.

The applications were opposed on limitation and substantive grounds. The central issues were whether the proposed parties had been named or omitted through a qualifying mistake, whether their joinder was necessary, whether the proposed claims were the same claims as those originally commenced, and whether the amendments could properly relate back.

1. Substitution of BV for Inc. The court accepted that Inc had been named through a genuine mistake. However, under CPR 17.4 the claim form and surrounding context left reasonable doubt about the identity of the intended claimant. The amendment therefore could not proceed under that rule.
2. CPR 19.5 had a wider scope, but section 35 of the Limitation Act 1980 remained controlling. The relevant question was whether BV was substituted for a party named in mistake in respect of the claim originally made. Applying the approach in Weston v Gribben [2006] EWCA 1425, the proposed reformulation differed substantially from the original claim. BV also had no realistic recoverable claim under the policies because it had paid nothing under a counter-indemnity following the alleged forfeiture. Substitution was refused.
3. Addition of DPIL and PII. Section 35 did not permit claimants to add persons with separate claims merely to aggregate losses or because they, rather than the original claimant, may have suffered the loss. Neither proposed claimant was necessary to maintain BV’s claim. DPIL was not an assured under the policies, and PII had no realistic recoverable loss. Their addition was refused.
4. The court further held that deprivation of a limitation defence may itself amount to prejudice. The applicants’ late commencement, inadequate investigation and failure to identify the proper claimants weighed heavily against exercising any residual discretion in their favour.
5. The amendments concerning an implied declaration of forfeiture in 2000 introduced a new claim, but arose from facts already pleaded, including the relevant correspondence. They were therefore allowed under the applicable procedural rules. Case-management directions were to follow.