LIDL UK GmbH & Anor v Davies & Ors

When limitation has expired, an amendment adding a new cause of action is permitted only if the new claim arises from the same facts, or substantially the same facts, as a claim already made in the proceedings. The relevant factual basis may be found in the original particulars of claim and the defence taken together. The comparison is substantially a matter of impression, but the impression must result from a reasoned assessment of the relevant factors. An appellate court is slow to interfere with that assessment. A costs order following an amendment application will likewise stand where the judge considered relevant matters and no error of principle is shown.

The claimants, trustees of an employee pension scheme, sought to amend proceedings concerning retention money under a land sale agreement. The proposed amendments included claims against Lidl for breach of trust, knowing assistance, knowing receipt and wrongful interference with contractual relations. The judge permitted the trust claims but refused the interference claim and made a costs order against the claimants. Lidl appealed against permission to add the trust claim. The claimants appealed against the costs order. The central issue was whether the trust claim arose from the same, or substantially the same, facts as the original claim, including facts put in issue by Lidl’s defence.

1. Appeals dismissed. The Court of Appeal upheld both the permission to amend and the costs order.
2. Under section 35 of the Limitation Act 1980 and CPR 17.4(2), a new cause of action cannot be added after expiry of the limitation period unless it arises from the same facts, or substantially the same facts, as a claim for which a remedy has already been claimed in the proceedings.
3. The factual comparison must consider the original particulars of claim and the defence together. The question is substantially one of impression, but the impression must be derived from a reasoned assessment of the relevant factors. The appellate court should be slow to interfere: Welsh Development Agency v Redpath Dorman Long Ltd [1994] 1 WLR 1409; Convergence Group Plc v Chantrey Vellacott [2005] EWCA Civ 290.
4. The judge had applied the correct test. His approach was incomplete only because he referred principally to the defence, rather than the particulars and defence together. The original pleading alleged that Lidl had refused to release the retention money. Read with the amendments, that allegation substantially supported the trust claim that Lidl had received and wrongfully retained money held on trust.
5. The costs discretion disclosed no error of principle. The claimants conceded that relevant matters had been taken into account and that there was no substantial difference between costs limited to the amendment application and costs to date. There was therefore no basis for appellate interference.

• Court of Appeal (Civil Division) [2008] EWCA Civ 976: dismissed Lidl’s appeal concerning the trust amendments and the claimants’ appeal against the costs order.
• Queen’s Bench Division, Cardiff District Registry: Wynn Williams J permitted the trust amendments, refused the proposed wrongful-interference amendment, and ordered the claimants to pay Lidl’s costs to date.