PJSC Tatneft v Gennady Bogolyubov & Ors

Whether an amendment introduces a new claim depends on the substance of the proposed case and the essential ingredients of liability under the law governing the claim. A change in the heads or quantification of loss does not necessarily create a new cause of action. However, an allegation that the defendant caused a different entity not to claim additional sums, instead of diverting sums that had actually been paid, may constitute new and inconsistent wrongful conduct. The court must examine the pleaded facts and the legal case advanced, rather than the location or form of the amendments. A new time-barred claim cannot be added unless it arises from the same or substantially the same facts as the existing claim.

PJSC Tatneft sought permission to re-amend its particulars of claim in proceedings alleging tortious liability under Article 1064 of the Russian Civil Code. The existing case concerned the alleged diversion of payments made by a Ukrainian refinery in respect of oil supplied in 2007. The proposed amendments alleged that the payments were less than the refinery’s full liability because additional depreciation and interest sums were due under Article 625 of the Ukrainian Civil Code, and that the defendants had caused relevant entities not to claim those sums.

The application followed earlier interlocutory decisions concerning the arguability of the claim and previous amendments, including [2016] EWHC 2816 (Comm) and [2017] EWCA Civ 1581. The central issue was whether the proposed amendments introduced a new claim for the purposes of Civil Procedure Rules 1998, rule 17.4, section 35 of the Limitation Act 1980 and the Foreign Limitation Periods Act 1984.

1. Permission to re-amend the particulars of claim was refused and the application was dismissed. A fresh claim would be time-barred under Russian law, and the proposed claim did not arise from the same or substantially the same facts as the existing claim.

2. The court accepted that the question whether an amendment introduces a new claim must be assessed by reference to the essential ingredients of liability under the law governing the claim, as explained in Blue Tropic Limited v Chkhartishvili [2016] EWCA Civ 1259. No particular contrary principle of Russian law had been established.

3. The existing claim was based on the allegation that the defendants caused or procured UTN to pay the full amount due for the 2007 oil supplies to Taiz and Tekhnoprogress, from which the funds were diverted away from S-K. The proposed amendments instead alleged that UTN had not paid the full amount due, because additional Article 625 sums should have been claimed, and that the defendants caused Taiz and Tekhnoprogress not to act in their own interests by claiming them.

4. That was not merely a different quantification or particularisation of loss. It alleged additional and different wrongful conduct. The two cases were also inconsistent: the pleading could not coherently assert that the payment both represented and did not represent the full extent of UTN’s liability, save by pleading alternative cases involving two distinct alleged wrongs.

5. The new claim required investigation of different facts and hypotheticals, including entitlement to Article 625 sums, their amount, whether they would have been claimed and paid, the effect of bankruptcy, and assignment of the right to sue. It therefore did not arise from the same or substantially the same facts as the existing claim.

6. Obiter, even if the amendment discretion had been available, permission would have been refused. The proposed claim was of doubtful merit, required substantial additional factual investigation, created disclosure difficulties, and had been advanced without good reason for the delay. The approach in Seele Austria GmbH & Co KG v Tokio Marine Europe Insurance Limited [2009] BLR 481 was applied by analogy.

The judgment records earlier interlocutory decisions in the same proceedings, including a decision of the High Court at [2016] EWHC 2816 (Comm) and an appeal decision at [2017] EWCA Civ 1581. The present application was determined at first instance by the Commercial Court.