AMENDMENT PROVIDES A BRIDGE OVER TROUBLED WATERS: PERMISSION TO AMEND TO CLARIFY POSITION OF PARTY PERMITTED

February 7, 2017 · by · in Amendment, Limitation, Statements of Case

Decisions on amendment and limitation arguments are cropping up at the moment. Here we look at the judgment of Master Kay QC in Highways England Company Limited -v- B.G. Rodwell Limited[2017] EWHC 118(QB).  The defendant raised issues under Section 35 of the Limitation Act 1980, these were rejected. The claimant was given permission to amend.

KEY POINTS

  • An application by the claimant to amend the particulars of claim to clarify its right to bring an action was allowed.
  • The claimant was not bringing a new cause of action; the amendment caused no additional costs or delay; it did not fall foul of section 35 of the Limitation Act 1980.

THE CASE

The claimant was bringing an action against the defendant following damage to a bridge caused by a lorry.  The defendant made an application to strike out the action on the grounds that the defendant did not have any legal interest in the bridge at the time it was damaged. Further it was argued that the claimant should not be allowed to amend the Particulars of Claim because the original limitation period had expired and an amendment would seek to introduce a new cause of action which is not permitted by s.35(3) of the Limitation Act 1980 and CPR 17(4).

THE BACKGROUND TO THE ARGUMENTS

Title to the bridge had been transferred to the Claimant on the 1st April 2015 under a Transfer scheme.  Causes of action, including the claim in negligence, were also transferred under that scheme.  The facts of the transfer were disclosed after the defendants had sought further information.  The claimant sought permission to amend to clarify its right to bring the action.

THE MASTER’S DECISION: THE EXISTING PLEADINGS WERE ADEQUATE

d. Although the Defendants have made their case upon the basis that as the Claimant did not exist in 2009 and they cannot have owed any duties to this Claimant that misstates the fundamental issues which are:

(i) whether the Defendants owed duties with respect to the then owners of the bridge,

(ii) were they in breach of those duties and,

(iii) does the present Claimant have title to sue in respect of those duties.

e. In bringing a claim it is inherent that the Claimant asserts title to sue. That there was doubt as to whether the Claimant does have title to bring the claim was raised by the Defendants through the request for further information drafted by Mr. Jason Evans- Tovey. In my view the answer to that request provides a complete response to the present application because it explains that:

(i) Title to the bridge was transferred to the Claimant on 1st April 2015 by a Transfer Scheme dated 30th March 2015 made pursuant to the Infrastructure Act 2015, and

(ii) Causes of action including the cause of action in negligence in the instant case, and the related claim against the Third Defendant were also transferred by the Transfer Scheme.

f. In these circumstances the claim was sufficiently pleaded and what remains are issues of fact which are to be decided at trial. There is insufficient material to support the assertion that the existing claim is bound to fail and therefore it must be rejected.

THE SECOND ASPECT OF THE DECISION: THE AMENDMENT SHOULD BE ALLOWED

The Master allowed the Claimant’s application to amend. It was for the purpose of clarification.

  1. The Claimant’s application to amend
    1. The Claimant’s application to amend
a. Mr. Jason Evans-Tovey has argued that, in order to remedy the defect in its pleading the Claimant needs to apply for permission to amend and that permission should not be granted because of the effect of s.35 of the Limitation Act 1980. In my view this submission is to be rejected because:

(i) As I have already stated the existing pleading is adequate and therefore no amendment is necessary;

(ii) The amendment does not, in my view substitute a new claim;

(iii) Even if the pleading is to be considered as substituting a new claim it is one which clearly arises out of the same set of facts as already pleaded, namely the collision with the bridge and it would be appropriate to exercise the court’s discretion in favour of the Claimant.

b. Miss Hitchings submitted:

(i) The Claimant is not seeking to amend to introduce a new cause of action. The cause of action pleaded against the First and Second Defendants is in negligence (and against the First Defendant also vicarious liability for the negligence of the Second Defendant). The Claimant does not seek to bring any other claim against them.

(ii) Similarly, the Claimant does not seek to bring a new claim against the Third Defendant. Its claim always has been and remains one under the European Communities (Rights Against Insurers) Regulations 2002.

(iii) By the proposed amendment the Claimant seeks better to particularise why it is entitled to bring the claims that it has always advanced. Rather than simply doing so by way of replacement answers to the Request for Further Information served by the Defendants it does so by way of amendment to the Particulars of Claim.

(iv) The dictum of Longmore LJ in Berezovsky v Abramovich [2011] 1 WLR 2290 at para 59 is pertinent to the present case. He said: “A cause of action in tort has, as its essential ingredients, a plea of duty, breach of duty and consequent damage to the claimant. If it happens to be the case that an element of one of those essential ingredients is misstated, misdescribed or omitted, it does not mean that a correct statement, description or inclusion is a new cause of action; even if the formal result of such a statement misdescription or omission might technically be that an unaltered claim would have to be dismissed, that still does not mean that a corrective alteration involves or constitutes a new cause of action.”

(v) The proposed amendments do not introduce any new cause of action. They simply address the lack of clarity and particularity as to one ingredient of the causes of action already pleaded, namely the Claimant’s standing to sue. The Particulars of Claim at paragraphs 1 and 11 attempted to address this, so the failing is (at most) a misstatement or misdescription. However even if there had been no mention of the Claimant’s standing to sue an amendment to particularise it would not amount to bringing a new cause of action, but would fall under Longmore LJ’s category of ‘omission’.

c. In my view Miss Hitching’s submission on the above points should be accepted. In coming to that conclusion I have in mind the dictum of Coleman J in BP PLC v Aon Ltd [2006] 1 Lloyd’s Rep 549 at p.558 which was approved by the Court of Appeal in Ballinger v Mercer [2014] 1 WLR 3597. Colman J said:

“52. At first instance in Goode v Martin [2001] 3 All ER 562 I considered the purpose of section 35(5) in the following passage: ‘Whether one factual basis is “substantially the same ” as another factual basis obviously involves a value judgment, but the relevant criteria must clearly have regard to the main purpose for which the qualification to the power to give permission to amend is introduced. That purpose is to avoid placing a defendant in the position where if the amendment is allowed he will be obliged after expiration of the limitation period to investigate facts and obtain evidence of matters which are completely outside the ambit of, and unrelated to those facts which he could reasonably be assumed to have investigated for the purpose of defending the unamended claim.

“53. In Lloyd’s Bank plc v Rogers [1997] TLR 154 Hobhouse LJ said of section 35: ‘The policy of the section was that, if factual issues were in any event going to be litigated between the parties, the parties should be able to rely on any cause of action which substantially arises from those facts. ‘

54. The substance of the purpose of the exception in subsection (5) is thus based on the assumption that the party against whom the proposed amendment is directed will not be prejudiced because that party will, for the purposes of the pre-existing matters [in] issue, already have had to investigate the same or substantially the same facts. “

d. As I have already stated it appears to me that title to sue is the central ingredient with respect to this application and that was a matter which was always potentially before the court even if it was not clarified until the response was provided to the request made by the Defendants. It does not appear to me that the Defendants will be placed in a position where they will be obliged to investigate facts and obtain evidence of matters which are completely outside the ambit of, and unrelated to those facts which could reasonably be assumed to be within the ambit of the claim when first brought.
e. To the extent that it is necessary to consider the exercise of the court’s discretion under CPR 17.1(2)(b) the following matters are, in my view, relevant:

(1) The Defendants will not need to make any new investigations. Title to sue was a matter which stood to be considered from the moment the claim was made;

(2) Although the Defendants may wish to review the Transfer Deed and the statutory framework that was always a matter facing them if they wished to take issue with the Claimant’s right to sue. In any event any additional time and cost should be modest and may have been incurred already, as the Transfer Deed was supplied in August 2016 and the Defendants have raised questions in respect of it.

(3) No delay should be caused to the progress of the claim going forward. The amendment is not one that will slow down any of the steps in the timetable.

(4) The amendment is sought due to failings in the original pleading. If the application is refused satellite litigation is likely (subject to the argument that the claim would not necessarily be struck out). It is preferable that the substantive issue is dealt with in these proceedings rather than in other proceedings.

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