Shaw v Medtronic Corevalve LLC & Ors

Permission to amend after expiry of limitation requires a structured three-stage inquiry. The claimant must show an arguable limitation issue, a new cause of action, and that the new claim arises from the same or substantially the same facts as the existing claim. At the final stage the court examines the factual investigation required of the defendant, including newly introduced allegations and evidence. Amendments should not be permitted to introduce claims which are not maintainable in established law merely because a higher court might develop the law. Under qualified one-way costs shifting, costs protection and exceptions are applied according to the pleaded claims and the procedural route taken. A claimant’s discontinuance will not ordinarily be set aside without abuse of process or other sufficient justification.

The judgment concerned consequential applications following an earlier judgment which had set aside service on certain defendants and struck out the claim against another. The claimant had discontinued against the Fifth Defendant and sought permission to amend the claim against the Second Defendant, Jean Claude Laborde, by introducing claims including battery, unjust enrichment and fraudulent misstatement.

The Second Defendant sought strike-out or summary judgment. The defendants also sought costs orders and orders permitting enforcement despite qualified one-way costs shifting. The central issues were whether the proposed amendments satisfied Limitation Act 1980 and CPR 17.4, whether the notice of discontinuance should be set aside, and how the QOCS rules applied.

1. Amendment application dismissed. The existing Particulars of Claim disclosed no cause of action against the Second Defendant. The proposed amendments introduced new causes of action and serious new allegations, including that he knowingly and dishonestly performed an unnecessary operation without consent.
2. Applying the three-stage approach identified in Ballinger v Mercer Ltd [2014] 1 WLR 3597, there was an arguable limitation defence and the amendments sought to add new causes of action. They failed at the third stage because the new causes did not arise out of the same or substantially the same facts as those already in issue. The Second Defendant had previously been required to investigate no facts because no cause of action had been pleaded against him.
3. The court would in any event have refused permission in its discretion. The proposed agency pleading was difficult to reconcile with a personal claim. The fraudulent misstatement claim was incomplete. The proposed battery claim, if confined to restitutionary damages, was bound to fail under the law as it stood. The unjust enrichment claim did not fall within a recognised category. A possible future development of the law did not give the claim a real prospect of success.
4. The Particulars of Claim were struck out insofar as they related to the Second Defendant. The court declined to determine certain abuse of process and limitation arguments which might arise in fresh proceedings.
5. The Fifth Defendant’s notice of discontinuance was not set aside. Discontinuance was a proper use of the claimant’s power under CPR 38.2. The circumstances did not establish abuse of process or justify interference under CPR 38.4.
6. The First, Third and Fifth Defendants’ application under CPR 44.16 was dismissed. The pleaded free-standing unjust enrichment claim was unclear, had not been authorised for service out of the jurisdiction against the First and Third Defendants, and in any event substantially overlapped the restitutionary damages claim. Costs were awarded to the First, Third, Fourth and Fifth Defendants, subject to the agreed position concerning the disclosure application.

First instance decision. The judgment followed an earlier judgment of the same court dated 20 January 2017. Permission to appeal against the orders made in this judgment was refused.