Bonnier Books UK Group Holdings Limited & Ors v Haysmacintyre LLP

Under Limitation Act 1980 section 35 and CPR r. 17.4, a late amendment adding a cause of action is permitted only where it arises out of the same or substantially the same facts as the existing claim. The statutory policy protects a defendant from investigating facts and obtaining evidence outside the matters reasonably arising from the original pleading.

A proposed duty which is freestanding, more extensive and directed to different recipients may constitute a new cause of action, even where it relies on documents relevant to the existing claim. Late amendments must also be sufficiently particularised. Ambiguity cannot ordinarily be cured by solicitors’ correspondence; the pleading should be reformulated. The court retains a discretion to refuse an amendment where it would cause significant procedural disruption or prejudice.

The claimants, five companies in a publishing group, brought contractual and tortious claims against their auditor concerning audits of their accounts for the financial years 2013 to 2016. They alleged that negligent auditing caused them to incur substantial losses on an expansion programme.

The claimants sought permission to amend their Particulars of Claim after expiry of the relevant limitation period. The disputed amendments alleged, among other matters, a continuing duty to report information to the group auditor, PwC Stockholm, and consequential communications by PwC to those charged with governance. The defendant argued that this was a new and more extensive duty arising from different facts and requiring substantial new investigation. Further amendments concerned the alleged willingness or ability of the holding companies to provide or approve resources.

The central issues were whether the amendments introduced new causes of action, whether they arose from the same or substantially the same facts under CPR r. 17.4, and whether permission should be granted in the exercise of the court’s discretion.

1. Permission was refused for the proposed insertion of section D(i), which alleged a continuing duty to report promptly to PwC Stockholm. Permission was granted for the amendments to paragraphs 46 and 50, subject to reformulation of the ambiguous reference to whether the holding companies were willing and/or able to provide or approve resources. The consequential amendment to paragraph 57.1 fell away.
2. The court adopted the four questions arising under CPR r. 17.4: whether the amendment adds or substitutes a new cause of action; whether it is reasonably arguable that limitation has expired; whether the new cause of action arises from the same or substantially the same facts; and whether permission should be granted in the discretion of the court. The first two questions were common ground.
3. A cause of action is a factual situation entitling one person to obtain a remedy against another. The same-facts requirement reflects the policy of protecting a defendant from investigating matters unrelated to those which could reasonably have been expected to be investigated in defending the original claim. The court applied the approach in Mulally & Co Ltd v Martlet Homes Ltd [2022] EWCA Civ 32, drawing on Letang v Cooper [1965] 1 QB 322.
4. The proposed PwC amendment was not merely particularisation of the existing auditor’s duty. The existing pleading concerned reporting to those charged with governance. The proposed amendment created a freestanding and potentially more extensive duty to report to PwC Stockholm, raising new questions about the relationship between the auditors, PwC’s duties under Swedish law and practice, what PwC would have done with the information, and to whom it would have reported it. Those matters did not arise from the existing pleaded facts in the required sense.
5. As a separate discretionary matter, the late amendment would have required further disclosure, possible foreign-law and regulatory expert evidence, repleading and substantial revision of the procedural timetable. The risk of disruption to the fixed trial supported refusal. Late amendments must be properly particularised. The reasoning in Swain Mason v Mills & Reeve [2011] EWCA Civ 14 was applied: correspondence cannot generally cure an ambiguity in the pleading, and the proper solution is reformulation.
6. The amendments to paragraphs 46 and 50 were allowed insofar as they particularised the existing alleged breach. The paragraph 50 amendment was permitted subject to limiting or clarifying the disputed wording, with any remaining uncertainty capable of resolution by a focused request for further information under CPR Part 18.