Countryside Properties v MDS Civil

When deciding whether a proposed amendment introduces a new claim for limitation purposes, the court must assess whether it arises from the same or substantially the same facts as the existing claim. The assessment is fact-sensitive and may involve both analysis and overall impression.

The court may consider all existing pleadings, not merely the claimant’s pleading, and the extent of any additional factual investigation required for the amended case. An amendment which clarifies an existing breach, uses more precise terminology, or adds allegations supported by substantially the same factual investigation will generally not introduce a new claim.

The claimant sought permission to amend its claim concerning cracking and movement in houses at a residential development. The proposed amendments added or clarified contractual terms, foundation-depth allegations, root-growth inspections, causation allegations, and the description of movement as subsidence rather than settlement. The claimant also sought to add a possible contractual claimant.

The defendant opposed the substantive amendments and raised limitation-related objections. The court was required to determine whether the amendments constituted new claims under section 35 of the Limitation Act 1980 and CPR 17.4(2), and whether they arose from the same or substantially the same facts as the existing claims.

1. Amendments allowed. The substantive amendments arose from the same or substantially the same facts as the claims already pleaded. They were therefore permitted under section 35 of the Limitation Act 1980 and CPR 17.4(2).
2. A cause of action is a factual situation which entitles one person to obtain a remedy against another. Whether an amendment introduces a new claim depends on the nature of the duty, breach and damage alleged. A different breach of an existing duty may or may not constitute a new claim, depending on fact and degree.
3. In applying the statutory and procedural test, the court should examine the extent to which the original and amended facts overlap and diverge. The court may consider all the pleadings. It may also consider whether the amended claim would require significant additional factual investigation beyond that required for the original claim.
4. The Bridge End Lane amendments did not introduce a new claim. Replacing settlement with subsidence was substantially semantic, and the allegations concerning minimum foundation depths, roots and inspections amplified matters already pleaded. The same damage and substantially the same investigation remained in issue.
5. The Thatcher’s Way amendments were more arguable because inadequate foundation depth had not previously been expressly pleaded. Nevertheless, the damage and factual investigation were substantially the same, and the defendant had itself pleaded that inadequate foundation depth caused the damage. The amendments therefore arose from substantially the same facts.
6. The proposed addition of a possible third claimant was adjourned to trial. The trial judge was best placed to determine whether the claim was time-barred and whether adding that claimant was necessary.
7. The claimant was awarded the net sum of £3,000 in respect of the contested amendment application, payable within 14 days. The claimant was to bear the costs of making the amendments.