Citation: EWHC 1285 (TCC)
Summary of facts
The Claimant applied to amend its Particulars of Claim pursuant to CPR 17.1(2)(b) to claim further losses arising out of an alleged loan agreement. If permission to amend was granted, the claim would almost double in value.
The Defendant submitted that the Claimant was seeking to add a new claim after the expiry of a limitation period and could only be permitted to do so in the circumstances prescribed by CPR 17.4.
TCC’s decision (Jason Coppel QC)
The judge allowed the proposed amendment and held that the amendment did not seek to raise a new claim but rather to add a new head of loss allegedly flowing from the claim of breach of contract, which was already pleaded, Co-Operative Group Limited v Birse Developments Limited & Anr. [2013] EWCA Civ 474, Berezovsky v Abramovich [2011] 1 WLR 229, Harland, and Wolff Pension Trustees Ltd v Aon Consulting Financial Services Ltd [2009] EWHC 1557 (Ch) applied and Manchester Building Society v Grant Thornton [2021] UKSC 20 distinguished.
The judge also considered that if the Claimant’s addition of a new head of loss constituted a new cause of action, then it would be a cause of action which arose out of the same or substantially the same facts as the existing claim, Ballinger v Mercer Limited & Anr [2014] EWCA Civ 996 applied.
As to the exercise of the Court’s discretion under CPR 17.3, the judge found that:
i) The Claimant had not put forward a satisfactory explanation as to why the amendment was being brought forward at that stage.
ii) That said, the proposed amendment would not disrupt the progress of the proceedings towards trial and would not cause significant prejudice to the Defendant for that, or any other, reason. The additional work which the new head of claim would entail could be compensated for in costs if the claim was unsuccessful.
iii) Whilst it would have been preferable for the new head of loss to have been pleaded from the outset, greater injustice would be caused to the Claimant if it were not permitted to amend its claim.
iv) This was, therefore, a case where the Court should come down on the side of ensuring that the full ambit of the dispute between the parties was determined.
Thomas Lazur acted for the Defendant.
