British Airways Plc v Apogee Enterprises Inc

For limitation purposes, an amendment does not add a new claim merely because it corrects the identity of a contractual document. The court must identify the cause of action at the highest appropriate level of abstraction. In a claim for breach of duty, the relevant comparison ordinarily concerns the duty alleged, the breaches relied on and, where appropriate, the nature and extent of the damage. Further instances, particulars, evidence and corrections to the contractual document supporting an already pleaded duty may remain within the existing cause of action. Where the amendment is permissible, the court retains a discretion to allow it. That discretion should not ordinarily be exercised to prevent an arguable claim from proceeding unless there is no realistic prospect of success or the amendment would cause unjust prejudice.

The claimant, tenant of the Compass Centre at Heathrow Airport, claimed damages for breach of a collateral warranty concerning defective curtain walling works. The particulars of claim referred to the warranty associated with trade contract 3270, although the works and alleged breaches related to trade contract 3200. The claimant applied to correct the pleading after the expiry of the relevant limitation period.

The defendant argued that the amendment introduced a new cause of action because it substituted a different contractual document and raised issues concerning execution, delivery and Minnesota law. It also opposed the amendment on discretionary grounds and sought the costs of an abandoned summary judgment application.

1. The application to amend was allowed. The proposed amendment did not add or substitute a new claim within section 35(2) of the Limitation Act 1980 and CPR Part 17.4(2).

2. The correct approach is to compare the existing and proposed pleadings at the highest appropriate level of abstraction. The relevant matters were the duties alleged, the breaches alleged and the damages claimed. Those matters remained identical, apart from quantification. The correction of the warranty identified as supporting the already pleaded duty was a matter of particulars.

3. The fact that the corrected warranty related to a different trade contract did not make the amendment a new cause of action. The pleaded curtain walling works, duty, breaches and loss remained the same. Issues concerning execution, sealing, delivery, wording and the applicable Minnesota law were evidential or particular matters below the required level of abstraction.

4. The claimant had a realistic prospect of establishing the contractual basis of the amended claim. The court therefore had jurisdiction to permit the amendment. The delay and the need to investigate events dating from 1992 did not justify stifling the claim, particularly where both parties had been unclear about the relevant contractual documents.

5. The defendant’s summary judgment application had been made prematurely. The defendant had failed to comply with an existing disclosure order before seeking postponement and had only later supplied the contractual documents. The claimant was not ordered to pay the costs of that abandoned application.