The High Court has allowed claimants to amend their particulars of claim to introduce a new claim outside the limitation period. In Nolan and others v Tui UK Ltd [2013] EWHC 3099 (QB) a number of cruise ship passengers claimed damages from the defendant operator for illness they alleged was caused by an outbreak of bacterial gastroenteritis on the ship. The claim was brought within the limitation period.

Subsequently the claimants applied to amend their pleadings to allege that the infections were caused by a virus rather than by bacterial infection. The application to amend was made after the limitation period had elapsed. The High Court held that, taken together, section 35 of the Limitation Act 1980 and CPR 17.4 may allow an amendment which introduces a new cause of action (thereby bringing a “new claim”) but only where the new claim arises out of the same facts or substantially the same facts as the claim already brought. Following Goode v Martin the High Court held that in order to ensure compatibility with Article 6 of the European Convention on Human Rights, the wording of CPR 17.4 should be read as follows:

“”The court may allow an amendment whose effect will be to add… a new claim, but only if the new claim arises out of the same facts or substantially the same facts as already in issue on a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings.”

In deciding whether to exercise its discretion to allow the amendment, the High Court applied the following three part test: 1) would the effect of allowing the amendment be to add or substitute a new claim? 2) does the amendment arise out of substantially the same facts as are already in issue on a claim where the applying party has already claimed a remedy? and 3) applying the overriding objective, should the court exercise its discretion to allow the proposed amendment?

The High Court found that the amendment did introduce a new cause of action. Secondly, the new cause of action did arise out of substantially the same facts already in issue due to the fact that it was pleaded in the Particulars of Claim and Defence taken as a whole. Finally, in deciding if allowing the amendment would be a proper exercise of the court’s discretion, the court applied the overriding objective to the facts and noted (amongst other points) that: 1. Evidence on this issue would be required anyway as it was raised in the defence; 2. The trial date was not being jeopardised; 3. Due to the fact that the claim consisted of 43 claimants, if the amendment was disallowed there was a real risk that the entire action would not be sustainable. Therefore on a proper balance of all the factors, the High Court was satisfied that it should exercise discretion in allowing the amendment.

The decision is a useful insight into the process that the courts must undertake in considering whether it is appropriate to allow the introduction of new cause of action after expiration of the limitation period. It is a welcome reminder that the courts will exercise  discretion in appropriate circumstances.

If you would like further information please contact Julian Johnstone, Partner in Druces LLP’s Litigation team, or Rachel Brown, Solicitor.