Mastercard Inc & Ors v Deutsche Bahn AG & Ors

Under CPR Part 17.4(2), a late amendment adding a new cause of action may relate back only where it arises from the same, or substantially the same, facts as an existing claim. This is a substantive legal precondition, not a discretionary case-management question. The inquiry compares the factual investigation and evidence reasonably required for the unamended and proposed claims. Awareness of a rule in the original claim is insufficient where the new claim requires a materially different counterfactual analysis.

Goode v Martin does not permit a claimant to introduce distinct facts by a reply and then use them to defeat a limitation defence. The relevant date for a new claim requiring permission is ordinarily the date of the proper amendment application.

Retailer claimants sought competition-law damages from MasterCard in respect of multilateral interchange fees. Their existing claims challenged the effect of the EEA interchange fee. They later sought to add a distinct claim that the Central Acquiring Rule itself unlawfully restricted competition by preventing central acquirers from using a potentially lower EEA fee.

Barling J granted permission for that claim to be added with relation back for limitation purposes: [2015] EWHC 3749 (Ch). MasterCard appealed. The central issue was whether the new claim arose from the same, or substantially the same, facts as claims already made, within CPR Part 17.4(2).

1. Appeal allowed. The court set aside permission to add the Central Acquiring Rule claim with relation back. It ordered that the relevant date for limitation purposes was 7 August 2015.

2. Section 35 of the Limitation Act 1980 and CPR Part 17.4(2) impose a threshold condition before a late new cause of action can relate back. The court has no discretion to bypass that condition. Although the assessment may be evaluative in a borderline case, it is a substantive legal question requiring analysis.

3. Applying Ballinger v Mercer Ltd [2014] EWCA Civ 996, the court asked whether allowing the amendment would require MasterCard, after expiry of the limitation period, to investigate facts and obtain evidence outside the reasonable ambit of the unamended claim. The existing claim treated the Central Acquiring Rule as part of the counterfactual world. The proposed claim required investigation of counterfactual worlds in which that rule was removed. Those were materially different factual inquiries.

4. The claimants could not rely on Goode v Martin to say that their new claim arose from facts already in issue. That case concerns a claimant relying on factual matters introduced by the defendant’s pleaded case. Here MasterCard positively relied on a counterfactual in which the Central Acquiring Rule remained in force.

5. Coudert Brothers v Normans Bay Ltd did not assist. Its ratio concerned a reply to a causation defence, not the introduction of a distinct cause of action. The court rejected the wider obiter view that a claimant could introduce new factual averments in a reply and then invoke CPR Part 17.4(2) to obtain relation back.

6. The Chief Master’s consent order did not grant the specific permission required by CPR Part 17.4(2). It was therefore fair and correct to use the date of the application seeking that permission, rather than the earlier service of amended particulars.

• Court of Appeal (Civil Division): allowed MasterCard’s appeal and set the relevant date for limitation purposes at 7 August 2015.
• High Court (Chancery Division): Barling J had permitted the claimants to amend to add the Central Acquiring Rule claim with relation back: [2015] EWHC 3749 (Ch).