APPLICATIONS TO AMEND APPEAL NOTICE AND PARTICULARS AT A LATE STAGE NOT ALLOWED BY THE COURT OF APPEAL
I am grateful to Jill Greenfield from Field Fisher for sending me a copy of the Court of Appeal transcript in Howe -v- Motor Insurers Bureau (CA 8th February 2017). This is a judgment refusing permission to amend and for additional grounds to appeal. In addition to a welcome update on the case it shows the formidable difficulties faced by parties making applications to amend, and to raise new points, on appeal. A copy of the transcript is attached here. judgment. This illustrates a classic problem when a new team of lawyers takes over a case and want to argue points not taken below. A new team had taken over and found it wanted to argue new points. This led to difficulties which were insurmountable.
The claimant is appealing the judgment in Howe -v- Motor Insurers’ Bureau  884 (QB). He has permission to appeal in relation to the finding that QOCS does not apply and in relation to the date of the accrual of the cause of action. The MIB have permission to cross-appeal in relation to whether it was necessary to show that there was liability under French law. The appeal is due to be heard by the Court of Appeal in June.
THE NEW APPLICATIONS
The claimant sought permission to amend the grounds of appeal, to amend the particulars of claim and for permission to amend in relation to the amended material.
THE SECTION 11 POINT
The Court of Appeal struck out an application to argue that Section 11 of the Limitation Act 1980 applied.
On 12 April 2016 Mr Howe applied for permission to amend the amended Particulars of Claim and the grounds of appeal and for permission to appeal, in order to be able to argue that the applicable section of the Limitation Act 1980 was section 11. He claimed that the action was an action in respect of personal injuries which attracted the operation of section 33. The court would therefore have the power to allow the action to proceed, as the court would be urged to do, if it appeared to the court that it would be equitable to allow the action to proceed having regard to the degree to which the provisions of section 11 would prejudice Mr Howe. I call this the “11/33” point. This was a point which counsel who then acted for Mr Howe had put forward in a proposed amendment at the trial, but counsel had abandoned any attempt to make this point and had conceded that section 33 did not apply. Thus the amended pleading which was permitted by the judge at trial did not contain the 11/33 point.
On 3 August 2006  the Supreme Court handed down its judgment in Moreno v MIB  UKSC 52. In a judgment of Lord Mance, concurred in by the remaining members of the court, the court ruled that Jacobs and Bloy had been wrongly decided and expressly overruled them. In that case the accident had happened in Greece. After a lengthy consideration of the Directives and the 2003 Regulations and the Untraced Drivers’ Agreement, the court held that compensation should be the same whether it was awarded against the driver or his insurer or the guarantee fund of the State of the accident, and should remain the same if and when the victim had recourse instead to the compensation body established in his own State. The route by which compensation was arrived at could not make any difference.
The court held that it was not consistent with the scheme of the Directives for the compensation body to provide compensation otherwise than in accordance with the law of the State of the accident. The scheme of the Directives was that a victim’s entitlement was to be determined by reference to the law of that State. Thus the scope of MIB’s liability in that case was to be determined by the laws of Greece.
The effect of this decision, as Miss Gumbel QC recognises, is that Mr Howe’s entitlement to compensation depends ‑ subject to one point ‑ on the laws of France. However, the judge has held that under the laws of France the claim is time‑barred. Mr Howe was refused permission by the judge to appeal that finding, and the application for permission has not been renewed. The question as to what would have been the position if the relevant law was that of England has accordingly become academic.
In those circumstances, we should in my view strike out the appeal notice filed on 12 April 2016, Appeal Court reference 2016/1575. MIB did not apply for this remedy, but as it seems to me we should act of our own motion. The point for which permission was given was live when permission was given. It is now dead. There is no point in allowing the appeal on this point to go ahead to its inevitable failure. There is equally no point in allowing an amendment to plead the 11/33 point, which is also moot.
There would in any event have been formidable difficulty in the way of persuading this court that such an amendment should be allowed. The point was raised but abandoned before the judge. If it had continued to be relied on, it would require evidence in order for it to be addressed. No evidence directed to this issue was before the judge, although it could have been. In order to get any appeal off the ground it would be necessary to adduce evidence now. The admission of such evidence would not, however, satisfy the Ladd v Marshall test. Further, even if the court admitted such evidence on appeal, it would probably be necessary for the matter to be restored to the judge to reach a conclusion as to whether it would be equitable to allow the action to proceed. A conclusion that it would be equitable to allow the action to proceed would itself be difficult to secure, given that Mr Howe has been represented since an early stage by solicitors and no action was commenced within either three or five or six years, the proceedings being begun over seven and a half years after the accident. If the points sought to be made were not moot, I would have declined to grant permission for them to be raised in any event.
All the above assumes that section 11 of the Limitation Act 1980 applies. That section applies:
“… to any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person.”
It is not self‑evident that a claim for compensation under Regulation 13(2) is an action for damages for breach of duty as opposed to an action sui generis for compensation under the Regulations. “
THE FOREIGN LIMITATION PERIODS ACT AND UNDUE HARDSHIP
The Court of Appeal was equally robust in relation to an application to amend to plead undue hardship under the Foreign Limitation Periods Act 1984
There remains for consideration the potential impact of section 2 of the Foreign Limitation Periods Act 1984. This provides an exemption to section 1 of the same Act which in defined circumstances provides for the application of foreign limitation law. Section 2 provides:
“2(1) In any case in which the application of section 1 above would to any extent conflict (whether under subsection (2) below or otherwise) with public policy, that section shall not apply to the extent that its application would so conflict.
(2) the application of section 1 above in relation to any action or proceedings shall conflict with public policy to the extent that its application would cause undue hardship to a person who is, or might be made, a party to the action or proceedings.”
Reference is made to these provisions in the last paragraph of Miss Gumbel’s skeleton argument of 20 November 2016. It does not, however, yet form any part of any proposed amended grounds of appeal or of any proposed amendment to the Particulars of Claim.In my judgment we should not grant permission to amend to advance this point. I say that for a number of reasons. 0First and foremost, this is a point that could have been run before Stewart J in March 2016, given that the second issue before him was concerned with the French law of limitation. It would have been open to Mr Howe to contend that, if French law did prima facie apply, it would be against public policy to allow it to do so. That course was never taken, and there is no good reason why it could not have been or why evidence bearing on the question could not have been adduced.
Second, the advancement of the point would require fresh evidence which, as I have said, could have been adduced at the trial.
Third, such application as has been made to rely on the point
is to be found in the skeleton argument filed some nine months after the trial.
Fourth, the contention that the application of the French five‑year limitation would cause undue hardship is not at all promising in circumstances where the appellant has been represented throughout and has allowed the limitation period, whether it be three, five or six years, to lapse.
Miss Gumbel points out that, if the relevant period of limitation was English, Mr Howe would be able to avail himself of section 33 of the Limitation Act 1980. Whether he could do so is itself, as I have indicated, highly debatable. This was the point abandoned at trial. It was abandoned on the basis that there was no breach of duty within the meaning of the section on the part of the MIB.
I note also that there is some authority at first instance that the absence of an escape clause such as section 33 in a limitation regime cannot make the imposition of the foreign rule of law contrary to public policy: Connelly v RTZ Corporation, unreported, 4 December 1998, Wright J, referred to by Wilkie J in KXL v Murphy  EWHC 3102 at paragraph 45(vi). The latter case sets out a helpful summary of the applicable principles, the application of which would make any successful implication of section 2(2) very difficult. In addition, section 1 of the 1984 Act provides:
“Subject to the following provisions of this Act, where in any action or proceedings in a court in England and Wales the law of any other country falls (in accordance with rules of private international law applicable by any such court) to be taken into account in the determination of any matter ‑
(a) the law of that other country relating to limitation shall apply in respect of that matter for the purposes of the action or proceedings, subject to sections 1A and 1B; and
(b) except where that matter falls within subsection (2) below, the law of England and Wales relating to limitation shall not so apply.”
It seems to me an open question whether the law of France falls to be applicable “in accordance with rules of private international law”, as opposed to pursuant to paragraph 13(2) of the Regulations as interpreted by the Supreme Court in accordance with its terms and its purpose in the light of the scheme and the Directives. I note that the Supreme Court found it unnecessary to address further submissions that were briefly addressed to it on the Rome II Regulation.
In short, I would as a matter of discretion refuse permission to advance this point in view of the fact that it is raised very late; could have been raised below; would require evidence which could have been produced below; and is one whose validity is far from clear. Miss Gumbel recognised – correctly – that for us to grant permission to raise all or any of the points now sought to be raised would itself be an act of extreme indulgence. I am not persuaded that the facts of this case justify that.
Accordingly, the order that I would make is that we should:
strike out the notice of appeal filed on 12 April 2016 with the Appeal Court reference that I have given; and
refuse permission to amend the notice of appeal and the Particulars of Claim as sought in the applications of 2 April 2016 and 23 November 2016.
This will leave for consideration the appeal in relation to one‑way cost shifting for which Stewart J gave permission, which I do not take to be affected by the orders which I propose that we should make.
- The judgment on first instance, in relation to QOCS, was considered in The limits of QOCS: High Court decision today.
The Foreign Limitation Periods Act was consideredin
- Undue Hardship and the Foreign Limitation Periods Act
- Accidents abroad and the Foreign Limitation Periods Act.