Janice Anyon & Ors v Secretary of State for Work and Pensions

On an application to amend after expiry of limitation, the court may permit amendments which clarify, particularise or add instances of an existing claim, even where new contractual terms or allegations are introduced, provided they do not substantively advance a different cause of action. The court should assess the pleaded case objectively and may consider whether the proposed case has a real prospect of success. An employee may arguably enforce terms contained in an employment document not supplied to them. An implied employment term protecting a valuable contingent financial right may be arguable where the contractual relationship has the features identified in Scally. Loss-of-chance damages are not confined, at the pleading stage, to cases involving hypothetical acts of third parties. Evidence should not ordinarily be pleaded as particulars of breach.

The claimants, employees of the Secretary of State for Work and Pensions, brought contractual claims concerning the evaluation and grading of their local service investigator posts under the JEGS system. They alleged that the evaluation had been conducted contrary to contractual terms and that proper evaluation would have resulted in HEO grading.

After limitation had expired, they sought permission to amend their particulars of claim. The proposed amendments concerned correction of the defendant’s name, incorporation of the JEGS Handbook, implied contractual terms, alleged procedural defects and predetermination, loss of a chance, and further factual material. The defendant opposed the amendments on limitation, lack of merit, pleading and procedural grounds.

The central issues were whether the amendments introduced new causes of action, whether any new claims arose from the same or substantially the same facts, whether the proposed contractual allegations had a real prospect of success, and whether the expanded narrative improperly pleaded evidence.

1. Permission granted in part. The claimants were permitted to correct the defendant’s name and to make most of the proposed amendments. Permission was refused for specified narrative paragraphs which pleaded evidence, for references to the CSMC as contractual terms where no breach was alleged, for the words “consciously or subconsciously”, and for the alternative allegation that the outcome was predetermined because defective evidence gathering caused it.
2. Under CPR 17.4(2), the relevant questions were whether the amendment was arguably out of time, whether it added or substituted a new cause of action, whether the new cause arose from the same or substantially the same facts, and whether discretion should be exercised in its favour. The amendments concerning the JEGS Handbook, implied terms and alleged breaches were, in substance, further particulars or instances of the existing complaint that the evaluation had been improperly conducted.
3. The allegation that the JEGS Handbook formed part of the employment contracts had a real prospect of success. It was arguable that the Handbook contained the methodology and procedures to which the existing contractual case already referred. Briscoe v Lubrizol Ltd supported the proposition that an employee may enforce a right contained in a document not seen by the employee.
4. The proposed implied terms were also arguable. It was open to the claimants to contend that proper evaluation procedures were contractually required, that the employer had to take reasonable steps to protect a valuable contingent right to appropriate remuneration, and that cooperation was necessary to conduct the evaluation properly. The analogy with Scally was sufficiently arguable at the amendment stage.
5. The proposed loss-of-chance amendment was arguable. Chaplin v Hicks demonstrated that such damages are not necessarily confined to loss dependent on the hypothetical conduct of a third party. It was too early to determine whether the approach would ultimately apply, pending disclosure and possible reconstruction of the JEGS process.
6. The amendments did not cause undue prejudice and arose from the same central factual contention. The claimants were directed to produce a corrected amended pleading. Other interlocutory matters were adjourned for later determination.