Dr Paul David Blakeman v University Hospitals of North Midlands NHS Trust

An amendment sought after expiry of limitation is impermissible under Civil Procedure Rules 1998, rule 17.4 unless the proposed claim arises out of the same or substantially the same facts already in issue. Different alleged breaches of duty do not become the same claim merely because they arise from the same clinical episode. Where the amendment introduces a new breach, new factual issues and a materially different defence, it is a new claim. Separately, an extension under section 33 of the Limitation Act 1980 requires consideration of all relevant factors, including delay, its explanation, evidential prejudice, the parties’ conduct and the claimant’s promptness. Prolonged unexplained delay, with knowledge of the alternative case before limitation expired, may make an extension unarguable.

The appellant, acting as personal representative of his deceased father, appealed against an order made on 30 May 2025 by Upper Tribunal Judge O’Brien sitting in the county court at Stoke on Trent. The judge refused permission to amend particulars of claim after the limitation period had expired.

The original claim alleged that the respondent hospital negligently changed the deceased’s antibiotics from intravenous to oral medication. The proposed amendment alleged instead that the wrong antibiotic had been administered. Expert reports supporting the proposed case had been obtained before proceedings began, but the amendment application was made shortly before trial and without a credible explanation for the delay. The appeal concerned section 33 of the Limitation Act 1980, whether the proposed amendment was a new claim, whether it arose from the same or substantially the same facts, and the exercise of discretion under rule 17.4 of the Civil Procedure Rules 1998.

1. New point on appeal. The court permitted the appellant to argue section 33, applying Singh v Dass [2019] EWCA Civ 360. The respondent had sufficient opportunity to address the point, had not suffered relevant detriment from its omission below, and would not incur additional costs.
2. Section 33. The factors in section 33(3) led firmly against disapplying limitation. There had been very long, unexplained delay. The appellant knew, before proceedings were issued, that his pleaded case was unsupported and that the alternative allegation was available. The delay caused substantial potential evidential and procedural prejudice, including the loss of the trial date, the need for new factual and medical evidence, and the risk that witnesses’ memories would be impaired. The respondent had acted properly and had itself identified the inconsistency between the pleading and the expert evidence. The appellant had no relevant disability and had not acted promptly. No further expert or legal advice was needed. An extension under section 33 was therefore unarguable.
3. New claim and same facts. The allegation concerning which antibiotic should be used was distinct from the allegation concerning how antibiotics should be administered. The original case put causation in issue while breach was admitted. The proposed case would require proof of a different breach and open wholly new factual issues. It was therefore a new claim and did not arise out of the same or substantially the same facts already in issue.
4. Discretion under rule 17.4. Once the amendment was found to fall outside rule 17.4, the court had no power to allow it. In any event, the discretion would properly have been exercised against amendment because of the lateness, absence of justification, prejudice and disproportionate need to restart the case. The appeal failed on all grounds.

• High Court (King’s Bench Division): The appeal from the order of Upper Tribunal Judge O’Brien, sitting in the county court at Stoke on Trent on 30 May 2025, was dismissed on all grounds.