Sivaji v Ministry of Defence

Permission to amend a statement of case cannot ordinarily be granted in the abstract where the proposed amendment is controversial and goes to the existence of liability. A draft pleading should be available for consideration. Where a proposed amendment adds a new cause of action after the limitation period, the court should apply the four-stage test under Civil Procedure Rules 1998 Part 17.4. If the test is satisfied, the court retains a broad discretion. That discretion must protect the limitation defence while also giving effect to the overriding objective, including proportionality, economy, fairness and the parties’ need to be on an equal footing. Delay, the real prospect of success, and whether the amendment requires investigation of genuinely new matters are relevant considerations.

The claimant, acting for the estate and dependants of a deceased former worker, brought a mesothelioma claim against the Ministry of Defence. The claim concerned alleged asbestos exposure at a naval dockyard in Singapore. The defendant disputed employment status, liability, applicable law and limitation, relying in part on Singapore law and the doctrine of double actionability.

Following an earlier order by Master Thornett, the claimant served amended Particulars of Claim and sought permission to amend both the Particulars of Claim and Claim Form. The defendant argued that the earlier order had merely set a timetable for a future amendment application and that the proposed amendments were outside the relevant limitation period. The central issues were whether amendment had already occurred and, if not, whether permission should be granted.

1. Nature of the earlier order. The order made by Master Thornett did not itself amend the Particulars of Claim. A controversial amendment going to the core question of liability could not properly be effected without a draft pleading for consideration. The Claim Form and Particulars of Claim were both statements of case, so the applications concerning them stood or fell together.
2. Applicable amendment test. The court applied the four-stage approach identified in Hyde v Nygate [2019] EWHC 1516, derived from Ballinger v Mercer [2014] 1 WLR 3597 and Diamandis v Willis [2015] EWHC 312 (Ch): whether limitation had arguably expired; whether the amendment added a new cause of action; whether it arose from the same or substantially the same facts; and, if so, whether permission should be granted in the discretion of the court.
3. The first two questions were answered affirmatively. The defendant conceded the third. The amendments therefore fell within Part 17.4, leaving the discretionary question.
4. The claimant bore the burden of showing that permission was appropriate. The proposed claims had a real, rather than fanciful, prospect of success. The discretion was wide and depended on all the circumstances. It included the policy of protecting defendants from losing a limitation defence, but also required consideration of delay, the need for investigation, and the circumstances in which the facts had already been put in issue.
5. The court also applied the overriding objective in CPR Part 1. The defendant would have to investigate and address the relevant factual issues whether or not amendment was allowed. The claimant had not delayed unreasonably in the circumstances. Refusing permission would confer an unfair limitation advantage on a defendant whose response to the claim had itself been substantially delayed, and would generate disproportionate cost without saving time or expense.
6. Permission was therefore granted to amend both the Particulars of Claim and the Claim Form in the circulated drafts.

The judgment describes an earlier costs and case-management hearing before Master Thornett on 27 March 2019. This court determined the claimant’s applications to amend the Particulars of Claim and Claim Form.