Mastercard? That'll Do Nicely! Do You Need To Issue A New Claim If Your Amendment Might Be Statute Barred?

• Published date: 19 October 2021
• Subject Matter: Real Estate and Construction, Construction & Planning
• Law Firm: Gatehouse Chambers
• Author: Mr David Pliener

It is no coincidence that construction cases play a prominent role in many of the leading decisions concerning limitation. It is the nature of our work that problems have a tendency to emerge some time after the work was completed and, more than occasionally, new problems come to light after proceedings have commenced.

As construction litigators, we are therefore all no doubt familiar with having to draft an amendment to a claim that is, or might be, vulnerable to a limitation challenge. While we probably trust that we are familiar with the law on the point, many of us would likely turn to our reliable friend, the White Book, to remind ourselves of how the court might approach such an application. A couple of TCC decisions over this year suggest that this course of action might not reveal the full picture.

What does the White Book say?

CPR 17.3 and 17.4, read together, tell us that we can amend a claim with consent or with the permission of the court, but that if the relevant limitation period has come to an end the court will only have a discretion to allow such an amendment if the "new claim arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings" (I'm ignoring mistakes as to names or changes in capacity, for present purposes). There is then lots of complicated law as to whether or not the amendment really is a "new claim" or really does "arise out the same or substantially the same facts".

As we all know, if such an amendment is then permitted, the amendments are treated for limitation purposes as relating back to the date the original claim form was issued. So far, so good.

But what if, as is often the case, it isn't completely clear whether the limitation period has expired, or whether the amendments can come within the strictures of CPR 17.4?

The White Book, at 17.4.2, says that where it is reasonably arguable that the relevant limitation has expired and/or does not come within 17.4, "permission to amend should be refused leaving the claimant to bring fresh proceedings on the new claim". That is based on two Court of Appeal decisions, Chandra v Brooke North and Ballinger v Mercer Ltd.

On one view that makes sense. Allowing the amendment gives the claimant the benefit of relating back, so, if there is any reasonable argument that the amendment is statute barred or outside 17.4, it should be refused; otherwise the defendant would lose...