Co-Operative Group Ltd v Birse Developments Ltd & Ors

After expiry of the limitation period, an amendment adding a cause of action is permissible only where the new cause arises from the same or substantially the same facts already in issue. A change from localised defects and patch repairs to a systemic construction defect affecting substantially the whole structure is qualitative, or a difference in degree amounting to a difference in kind. It does not satisfy that test merely because both pleadings concern the same physical subject matter. Under the Limitation Act 1980, s 35 and the Civil Procedure Rules 1998, r 17.4(2), the court then has no jurisdiction to allow the amendment, so discretionary case-management considerations do not arise.

The claimant appealed against Akenhead J’s refusal to permit re-amendment of its particulars of claim. The judge considered that the proposed amendment did not introduce a new cause of action, but refused permission on discretionary case-management grounds in decisions reported at [2013] EWHC 1790 (TCC) and [2013] EWHC 3145 (TCC).

The existing pleading concerned cracking, damaged arrises and localised areas of insufficient floor thickness. The proposed amendment alleged a systemic construction defect involving wholesale inadequate thickness, inability to meet loading requirements and the need to replace the warehouse slabs. The central issue was whether that case arose from the same or substantially the same facts already in issue.

1. Disposition. The appeal was dismissed. The Court of Appeal upheld the refusal of permission, although on the jurisdictional ground arising under the Limitation Act 1980, s 35 and the Civil Procedure Rules 1998, r 17.4(2).
2. Applicable test. Where an amendment after expiry of the limitation period introduces a new cause of action, it can be permitted only if the cause arises from the same or substantially the same facts as are already in issue on a claim in the original action.
3. Application. The factual substratum of the existing pleading was cracking, damaged arrises and localised areas of insufficient thickness, said to require patchwork repair. The proposed pleading alleged a systemic defect in construction. It asserted that substantially the whole of each floor slab was insufficiently thick, in randomly spaced locations and to varying degrees, so that the required loading could not be assured and complete replacement was necessary. This was a qualitative change, or at least a difference in degree amounting to a difference in kind. The fact that both pleadings concerned the same slabs did not make the underlying facts substantially the same.
4. Further reasoning. The revised case remained in substance concerned with the inability to withstand the required racking leg load, which had been the critical factor in the decision to replace the slabs. Removing the complaint about inadequate steel fibre content did not transform the systemic thickness case into the previously pleaded case of localised defects. Since the proposed amendment failed the statutory and procedural test, the court had no jurisdiction to permit it. It was therefore unnecessary to examine the judge’s discretionary case-management decision. Lord Justice Briggs agreed with Lord Justice Tomlinson.

• Court of Appeal (Civil Division): The appeal was dismissed. The court held that the proposed re-amendment introduced a case arising from facts materially different from those already in issue.
• High Court, Technology and Construction Court: Akenhead J held that the proposed amendment did not introduce a new cause of action, but refused permission on discretionary case-management grounds in [2013] EWHC 1790 (TCC) and [2013] EWHC 3145 (TCC).