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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Goode v Martin [2001] EWCA Civ 1899 (13 December 2001)
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Cite as: [2002] WLR 1828, [2002] CLC 420, [2002] 1 All ER 620, [2001] EWCA Civ 1899, [2002] CP Rep 16, [2002] CPLR 74, [2002] PIQR P24, [2002] 1 WLR 1828

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Neutral Citation Number: [2001] EWCA Civ 1899
Case No: B1/2000/3620

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(ADMIRALTY COURT)
Colman J
Master Miller

Royal Courts of Justice
Strand,
London, WC2A 2LL
Thursday 13th December 2001

B e f o r e :

LORD JUSTICE BROOKE
LORD JUSTICE LATHAM
and
LORD JUSTICE KAY

____________________

VIRGINIA GOODE
Claimant/
Appellant
- and -

HUGH MARTIN
Defendant/
Respondent

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Peter Ralls QC and Stuart Hornett (instructed by Barker Gillette for the Appellant)
Jervis Kay QC and John Russell (instructed by Lester Aldridge for the Respondent)

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Brooke:

  1. This is an appeal by the claimant Virginia Goode against an order of Colman J dated 7th November 2000, dismissing her appeal against an order of the Admiralty Registrar, Master Miller, dated 16th June 2000, refusing her permission to make certain amendments to her statement of claim. In this respect the appeal to this court is a second appeal. The judge also dismissed her application for permission to make these amendments on grounds not argued before the master, namely that they did not raise claims or causes of action in respect of which the relevant period of limitation had expired. She had contended in this context that she did not acquire knowledge of relevant facts for the purposes of sections 11 and 14 of the Limitation Act 1980 ("the 1980 Act") until 23rd January 1998, when the defendant's solicitor "served" a draft amended defence. She also appeals against that part of the judge's order. She does not appeal against his refusal to exercise his discretion under section 33 of the 1980 Act to disapply the provisions of that Act in her favour if all her other arguments failed, and I need not say anything about that aspect of the case.
  2. The claimant is now 28. She obtained a law degree at London University and completed the solicitors' legal practice course satisfactorily. She was due to start a training contract with a well known firm of London solicitors when she suffered a catastrophic accident on the defendant's yacht on the Solent on 24th August 1996.
  3. The defendant Hugh Martin is a very experienced sailor and yachtsmaster. Recently he was away from this country for about a year participating in the Millennial Round the World yacht race. In 1996 he owned an Oyster SJ35 racing yacht called the Ocean Cavalier. He invited a group of people to join him on the yacht over the August bank holiday weekend. They included Mr Dominic Nicholls and his wife Erica, and Erica Nicholls's brother Miles Holberry and his wife Helen. Erica was also allowed to invite two friends, the claimant and a girl called Sarah, to join the party of eight, which was completed by Ms Elspeth Smedley.
  4. Dominic Nicholls had known the claimant's family for many years. His wife Erica first met her in the summer of 1994, when they had worked together for the same firm. They then became close friends. Mr Nicholls had served in the army with the defendant, and he was a competent sailor himself. The defendant had invited Mr and Mrs Nicholls to go sailing with him on a few previous occasions, so that Mrs Nicholls had a basic knowledge of how things operated on a yacht. The claimant, on the other hand, was a novice so far as sailing was concerned.
  5. It appears that the party sailed across to the Isle of Wight on the Friday evening and moored there. The following morning was sunny. They sailed on to Cowes, and had lunch on board. They were planning to stay overnight at Lymington or Yarmouth, but the weather deteriorated in the afternoon, and the defendant decided to alter course and sail up the Beaulieu river. It was while he was gybing that the accident happened.
  6. The claimant suffered a near fatal head injury. Soon after the accident happened, she was taken by a naval helicopter to a local naval hospital. Mr and Mrs Nicholls joined her there, and they accompanied her that night to a hospital at Southampton, not leaving until 4 or 5 am on the Sunday morning, by which time her parents had arrived. She was then in a coma for about four and a half days. She also suffered from ten minutes pre-accident amnesia. She has therefore always depended on others to tell her what happened. She was originally placed on a life support machine; but she slowly recovered, and was discharged home from hospital on 9th September 1996. Her left frontal lobe, left cerebral hemisphere and left labyrinth were all damaged. There was no question of her being able to pursue her career as a solicitor for the time being. When she saw a consultant neurologist, Dr Savundra, a year later, her main concern was whether she would ever be able to return to her employment. She had problems with her concentration, she felt generally tired, and her physical and mental stamina were low. Dr Savundra believed that part of her symptoms were due to a failure to compensate for her peripheral vestibular lesion (which was susceptible to treatment), and part were due to her brain injuries for which no specific therapy was available.
  7. During the first two years after the accident she was under the care of hospitals and clinics for much of the time. She then felt able to embark on her training contract, which she found extremely difficult. She was later to tell her solicitor that her life was entirely made up of working and sleeping. It was a daily struggle, and she never knew whether she would be able to work till the end of the week, or even for another day. On many occasions she had to be picked up from work because she was physically incapable of getting home by public transport. She focused on her work to the exclusion of everything else, because this was the only way she was able to carry on working. In July 2000 she told the court in a witness statement that it continued to be a great struggle for her to continue with her training contract. I mention these matters because it might otherwise have seemed strange that she did not pursue this litigation with the vigour that might have been expected of a trainee solicitor.
  8. I turn now to the history of this litigation. It appears that the claimant picked up some information about what happened from friends and family who visited her in hospital. In October 1996 she received letters from Mrs Nicholls and Ms Smedley. The former gave her contact addresses for everyone who was on the yacht at the time of the accident. She also told her that Sarah, Ms Smedley and the defendant had all written statements the day after the accident, which were being kept at the defendant's parents' home. She suggested that her lawyer should ask the defendant for them. Finally, she wished her good luck and encouraged her to get everything she was entitled to. In the other letter Ms Smedley explained that she had been at the bow, and did not actually see the incident. She gave the claimant her telephone number in case she wanted to talk about the boat.
  9. The claimant has engaged four firms of solicitors during the course of this litigation. She originally instructed a local firm of solicitors in Southgate, who wrote letters on her behalf to the defendant on 7th October and 8th November 1996. The defendant did not reply to either of them. The papers were then passed to a new firm, who wrote to him on 19th November. They urged him to furnish them immediately with the name, address and policy number of his insurers, and to confirm that he had notified them of their client's claim. They also required him to provide them with nine separate items of information or copy documents, and to undertake not to remove or interfere in any way with the boat, and in particular with the "car" which they understood to be the cause of their client's injuries. They also told him they had applied for legal aid. Mr Martin maintained his policy of not replying.
  10. Nearly eleven months then elapsed before the writ was issued. It was endorsed with a Statement of Claim in which the accident was ascribed to the "car" coming free of the guide-rail in which it was designed to travel and striking the claimant on the head. I will refer to the role of this "car" in paragraph 16 below. Seven different allegations of negligence were made, all concerned with different aspects of the defendant's failure to inspect the condition of the roller elements of the car, all four of which were so worn as to require replacement.
  11. On 25th November Mr Martin finally broke his silence, although his defence was curt in the extreme. Paragraph 1 contained an admission that the claimant was on his yacht at his invitation on the day and in the place she had alleged. Paragraph 2 contained general denials of negligence and causation. Paragraph 3 contained a non-admission of personal injuries, loss and damage. Paragraph 4 contained a positive averment that the accident was all her own fault, alternatively that she was guilty of contributory negligence. Paragraph 5 contained a general denial of the claim, and Paragraph 6 contained a general traverse. The only chink of light about Mr Martin's case was contained in the particulars of contributory negligence:
  12. i. Failing to heed the defendant's instructions to remain seated while the vessel was in the process of gybing towards the entrance to the Beaulieu river;
    ii. Failing to take any or any sufficient care for her own safety both generally and specifically whilst seated and in the vicinity of the mainsheet and traveller.

    On 26th November 1997 the claimant's solicitor served a notice to admit the fact that all four rollers of the car fractured just before the claimant suffered her injury. The defendant declined to admit anything.

  13. The claimant was still in a very shaky state of health, as Dr Savundra's September 1997 report shows. She encountered, however, an almost unbroken wall of silence when her solicitors wrote on her behalf in October 1997 to five of the people who had been in the boat when she had her accident. Mr and Mrs Holberry did not reply to their letter. Nor did Ms Smedley. Mrs Nicholls, however, did respond, and on 24th October 1997 the claimant's solicitor visited her at her home near Stockbridge to take a witness statement from her. He sent a draft for her approval to her four days later.
  14. In this draft statement Mrs Nicholls explained how the yachting party had been made up, and how Mr Martin had held a drill before they sailed, explaining how everything on the boat worked and how it was operated. She described the history of events until the weather deteriorated on the Saturday afternoon. She said that everyone became wet and miserable when it began to rain, and the wind got stronger. Mr Martin decided to head for Beaulieu, and he took over the helm from the claimant, who came to sit with Mrs Nicholls in the cockpit, directly in front of him. She then described the gybe, and said that as they were performing it, the ropes suddenly went slack. She now believed that this was because the car had shattered. Although she did not actually see the shattered car strike the claimant, she saw her from the corner of her eye fall backwards very quickly. As she turned around she saw her hit her head on the cockpit floor. She had no doubt in her mind that it was the car shattering that was the original cause of the accident.
  15. In his covering letter dated 28th October 1997 the claimant's solicitor invited her either to approve the draft statement or to make any changes to it she wished to make. He added that while he fully appreciated Mr Nicholls's position, he would like the opportunity of having a brief discussion with him, and he invited her to ask him to telephone him at his own convenience. On 5th November 1997 Mrs Nicholls replied to the effect that she had decided to "withdraw" her witness statement. Whilst she fully appreciated the claimant's unfortunate position, she was no longer willing to be a part of any proceedings that might have "a negative effect" on Mr Martin. She added that her husband had also chosen to take no part in any case against Mr Martin. The wall of silence was now complete.
  16. On 23rd January 1998 the defendant's solicitors sent the claimant's solicitor a draft amended defence. This contained by amendment a limitation plea under section 185 and Parts I and II of Schedule 7 of the Merchant Shipping Act 1995, on which nothing at present turns, except that this plea contained for the first time the defendant's account of how the accident happened. It went along the following lines.
  17. The Ocean Cavalier was approaching the vicinity of the mouth of the Beaulieu River on a starboard gybe, with the boom out to port. The foresail was lowered. Mr Martin was on the helm. He warned the crew that he was going to gybe and instructed them what to do during the gybe. He told them to be aware of the boom. The claimant was seated at the aft end of the cockpit to the starboard of the helmsman and aft of the mainsheet traveller track. This track ran athwart the vessel, and the mainsheet block and tackle was attached to it by a moving "car". Mr Martin told the claimant she was fine where she was.
  18. As the gybe commenced, Mrs Nicholls was situated in the cockpit, taking in the mainsheet in accordance with her instructions. The claimant then leaned over to help her, with the mass of her torso across the mainsheet track. Mr Martin shouted a warning to her, but the boom swung across at almost the same time, and the claimant was struck on her side by the mainsheet itself. She was knocked down as a result, and struck her head on the side of the cockpit.
  19. The defendant's solicitors did not obtain leave to amend their defence until 16th October 1998 when Moore-Bick J also gave the claimant leave to amend her statement of claim as to the matters contained in the amended defence within 21 days of the service of that pleading. He directed a trial as to liability and/or limitation of damage first. The defendant's solicitors then waited for a further three and a half months before serving the amended defence.
  20. A delay then occurred in the conduct of the proceedings between 2nd February 1999, when the defendant's solicitors served their amended defence, and 10th March 2000 when the claimant's solicitors gave notice of intention to proceed, A third firm of solicitors came on the record on the claimant's behalf in February 1999, and that year appears to have been devoted to tidying up points of detail before the papers were submitted to counsel to consider amendments to the statement of claim. In May 1999 the defendant's solicitors told them that the damaged car could not be found after the incident, despite extensive searches. A delay of seven months then occurred before effective arrangements were made for the claimant's expert to inspect the boat. In February 2000 the claimant changed her solicitors again. On 14th April 2000 the claimant's new solicitors served on the defendant's solicitors the draft amended statement of claim which they were now seeking leave to serve.
  21. The defendant's solicitors now contended that the claimants should not be allowed to make this amendment, notwithstanding that it was founded on the version of the facts which their own client was setting out to prove at the trial. They relied in this context on CPR 17.4(1) and (2) which provide, so far as is material, that:
  22. "(1) This rule applies where

    (a) a party applies to amend his statement of case in one of the ways mentioned in this rule: and

    (b) a period of limitation has expired under

    (i) the Limitation Act 1980

    (2) The court may allow an amendment whose effect will be to add or substitute a new claim, but only 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."

  23. On 16th June 2000 Master Miller refused to allow the amendment. He said that the defendant would suffer no prejudice from a factual point of view in dealing with the amendments, which flowed from what the defendant had said in his amended defence. He added that although there had been a remarkable delay in bringing the application, he would not have allowed this fact to tip the balance against the claimant so far as the exercise of his discretion was concerned. His difficulty, which he said he identified without any enthusiasm, was that the new claim did not arise out of the same facts as a claim in respect of which the claimant had already claimed a remedy. He said that he therefore had no jurisdiction to allow the amendment.
  24. When the claimant appealed to Colman J she added a new contention that the relevant limitation period had not in fact expired because she had not acquired knowledge of the relevant facts within the meaning of sections 11 and 14 of the 1980 Act until 23rd January 1998 when the draft amended defence was served on her solicitors.
  25. Colman J upheld Master Miller's decision but shared his lack of enthusiasm for the result. In dismissing the appeal, he also considered and rejected a new argument founded on section 35 of the 1980 Act. He also rejected the new section 14 argument.
  26. In this context he applied a test set out in the decision of this court in Welsh Development Agency v Redpath Dorman Long [1994] 1 WLR 1409, 1425. He said that the claimant should only be given leave to amend if she could show that the defendant did not have a reasonably arguable case on limitation which would be prejudiced if he allowed the amendment. The defendant had argued that the only two matters of which the claimant did not have actual knowledge before November 1997 (three years before the hearing before Colman J) were the fact that she had been struck by the mainsheet and, less importantly, the fact that there was a wind speed of force 7 from the west south west. Colman J held that it was arguable that if the solicitor then acting for the claimant had acted with reasonable diligence he would have been able to ascertain these two facts before that date. He was not willing to conclude that any earlier attempt that he had made to obtain additional evidence from those on board the yacht would necessarily have been futile.
  27. On this further appeal Mr Ralls QC, who appears for the claimant, has sought to bolster his primary case by the addition of a new argument based on ECHR Article 6 which was not pursued before the judge. He says that if he fails in his contention that these amendments should be allowed on a conventional interpretation of CPR 17.4(2), then we ought to apply a more unconventional, yet possible, approach to interpretation. If we do not, the argument runs, his client's right of access to a court would be impaired by a restriction which impaired the essence of that right and did not have a legitimate aim. Even if a legitimate aim could be shown, the restriction employed means which were not reasonably proportionate to that aim (for these tests see Ashingdene v United Kingdom (1985) 7 EHRR 528, 546, para 57). In order to consider the arguments on CPR 17.4(2) it is first necessary to say something about the legislative history.
  28. So far as primary legislation is concerned, it is necessary only to consider section 28 of the Limitation Act 1939 both in its original form and in its form as substituted by section 8 of the Limitation Amendment Act 1980. So far as the court is aware, there were no changes to section 28 in the intervening years. In its original form, the section provided that:
  29. "For the purposes of this Act, any claim by way of set-off or counterclaim shall be deemed to be a separate action and to have been commenced on the same date as the action in which the set-off or counterclaim is pleaded."

  30. Between 1939 and 1980 no provision was made in primary legislation for the situation in which a party wished to add to its statement of claim a new cause of action founded on the same facts or substantially the same facts as had already been pleaded. Such provision was made for the first time in the greatly enlarged version of section 28 which was substituted in 1980, and consolidated in the same year as section 35 of the Limitation Act 1980. The new section 35 (which is still in force) provides, so far as is material, that:
  31. "(1) For the purposes of this Act, any new claim made in the course of any action shall be deemed to be a separate action and to have been commenced

    (a) in the case of a new claim made in or by way of third party proceedings, on the date on which those proceedings were commenced; and

    (b) in any other case, on the same date as the original action.

    (2) In this section a new claim means any claim by way of set-off or counterclaim, and any claim involving either

    (a) the addition or substitution of a new cause of action; or

    (b) the addition or substitution of a new party;

    .

    (3) Except as provided by section 33 of this Act or by rules of court, neither the High Court nor any county court shall allow a new claim within subsection (1)(b) above to be made in the course of any action after the expiry of any time limit under this Act which would affect a new action to enforce that claim.

    (4) Rules of court may provide for allowing a new claim to which subsection (3) above applies to be made as there mentioned, but only if the conditions specified in subsection (5) below are satisfied, and subject to any further restrictions the rules may impose.

    (5) The conditions referred to in subsection (4) above are the following

    (a) in the case of a claim involving a new cause of action, if the new cause of action arises out of the same facts or substantially the same facts as are already in issue on any claim previously made in the original action "

  32. So much for primary legislation. So far as the practice of the High Court was concerned, the rules governing amendments prior to the 1965 revision of the Rules of the Supreme Court were set out in the judgment of this court in Weldon v Neal (1887) 19 QBD 394. In that case the court held that a plaintiff would not be permitted to amend a statement of claim by setting up fresh claims in respect of causes of action which had become statute-barred since the issue of the writ.
  33. In 1965 Order 20 Rule 5 of the Rules of the Supreme Court 1965 was introduced with the effect of changing this practice in certain ways. So far as is material, it provided that:
  34. "(2) Where an application to the court for leave to make the amendment mentioned in paragraph (3), (4) or (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it thinks it just to do so.

    .

    (5) An amendment may be allowed under paragraph (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment."

  35. The power of the Rules Committee to introduce these new rules without the assistance of primary legislation soon came under fire, but it was upheld in Rodrigues v R J Parker [1967] 1 QB 116 and Mitchell v Harris Engineering Co Ltd [1967] 2 QB 703 for reasons which it is not now necessary to describe.
  36. The Law Reform Committee considered these rules in its twenty-first report (Final Report on Limitation of Actions), published in 1977. After explaining the terms of RSC O20 R5 it said (at p 67):
  37. "The Senior Master, who has suggested to us that the discretion of the court to allow an amendment of pleadings should be stated much more widely than it now is, has helpfully drawn our attention to the terminology used in Rule 15(c) of the American Federal Rules of Procedure, under which a new cause of action may be added by amendment if

    'it arises out of the conduct, transaction or occurrence of events set forth or attempted to be set forth in the original proceedings.'

    We have considered whether some such words as these might be preferable to those used in the existing RSC; but we doubt whether they add anything to the rule we have quoted above. The object of any such rule must, as we see it, be twofold. First, it ought to permit a plaintiff to amend his pleadings so as to make good the error of failing to tell the complete legal story at the outset. Secondly, it ought to be drawn sufficiently narrowly so as to prevent the plaintiff from instituting, under the guise of an amendment to an existing claim and after the limitation period has run, proceedings which are wholly distinct from those covered by the writ as originally framed. On the whole, we think that the existing rule achieves this object and goes as far in giving the court a discretion as the substantive law does, or should, permit. The American formula is probably consistent with our own substantive law, but we doubt whether its adoption would make any practical difference; nor do we think it is intrinsically superior to the existing words of the RSC."

  38. It follows that the committee decided to make no change to the existing rules to cover a case like the present, where the claimant wishes to add a new cause of action which arises out of the occurrence of events set forth in the proceedings as they stood before the proposed amendment. It does not appear to have considered the kind of situation with which we are at present concerned.
  39. The pre-consolidation Limitation (Amendment) Act 1980 was the vehicle by which many of the committee's recommendations were passed into law. I have already set out the new statutory scheme it introduced by way of substitution of section 28 of the 1939 Act. Changes were subsequently made to the wording of RSC O20 R5(4), but Rule 5(5) remained unaltered. When the Civil Procedure Rules were introduced in 1999, CPR 17.4(2) was in substantially the same terms as RSC O20 R5(5), with the substitution of the word "claim" for the expression "cause of action".
  40. I return now to section 35 of the 1980 Act (for its terms, see para 27 above) in order to make two points. The first is that the language chosen by Parliament in section 35(5)(a) is apt to embrace the concept contained in Rule 15(c) of the American Federal Rules of Procedure and the situation that has arisen in the present case. The claimant's new cause of action does indeed arise out of the same facts as are already in issue on her claim. The second is that neither the former Rules Committee nor the Civil Procedure Rules Committee have ever evinced any intention or desire to use their power under section 35(4) to add any additional restrictions to the rules permitting post-limitation amendments. So far as the first of these points is concerned, it has received judicial support from Hobhouse LJ, with whom Peter Gibson and Simon Brown LJJ both agreed, in Lloyd's Bank plc v Rogers (CAT 20th December 1996) when he said of section 35:
  41. "The policy of the section is that if factual issues are in any event going to be litigated between the parties, the parties should be able to rely upon any cause of action which substantially arises from those facts."

  42. We now possess more tools for enabling us to do justice than were available before April 1999. Since then, the Civil Procedure Rules and the provisions of the Human Rights Act 1998 have come into force. By the former we must seek to give effect to the overriding objective of dealing with cases justly when we interpret any rule (see CPR 1.2(b)). By the latter we must read and give effect to subordinate legislation, so far as it is possible to do so, in a way which is compatible with the Convention rights set out in Schedule 1 of the Act (Human Rights Act 1998, s 3(1)).
  43. It is commonplace that the claimant must not be impeded in her right of access to a court for the determination of her civil rights unless any hindrance to such access can be justified in a way recognised by the relevant Strasbourg jurisprudence (for the general principles, see Cachia v Faluyi [2001] EWCA Civ 998 at [17] [20], [2001] 1 WLR 1996). All she wants to do is to say that even if the accident happened in the way Mr Martin says it happened, he was nevertheless negligent for failing to take appropriate steps, as an experienced yachtsmaster, to protect her safety as a novice sailor. She does not want to rely on any facts which will not flow naturally from the way Mr Martin sets up the evidential basis of his defence at the trial.
  44. Mr Jervis Kay QC, who appeared for Mr Martin, encouraged us to adopt a narrow interpretation of both CPR 17.2 and section 35(5) of the 1980 Act. So far as the latter was concerned, he argued that the words "the same facts as are already in issue on any claim" were not apt to embrace facts that were in issue on the defence to such a claim.
  45. He did not explain to us why, as a matter of policy, the meaning of the words should be restricted in this way. We suggested to him that it seemed to be unfair, if a defence was served at the end of, or just outside, the primary limitation period, a claimant could not riposte by saying: "Well even if, which I dispute, the accident happened in that way, you were negligent because ". His reply was that the claimant would have to issue a new claim, incorporating an appropriate plea under the Limitation Act 1980, and consolidate that claim with her existing claim. It is hard to reconcile that expensive and cumbersome procedure with the philosophy of the overriding objective contained in the Civil Procedure Rules.
  46. Mr Kay urged us to be cautious about relying on the dictum of Hobhouse LJ, because he was concerned with a quite different situation. He also took comfort from a dictum of Nourse LJ in Fannon v Backhouse (CAT 30th July 1997) when he said in a quite different factual context that he thought it clear that the words "in issue on" meant "'material to' or the like" (see transcript, p 10). Again, Nourse LJ was not concerned with the situation which confronts us in the present case.
  47. As for the interpretation of CPR 17.4(2), Mr Kay encouraged us to adopt the narrow interpretation of the rule favoured by the judge and the master. The words "out of the same facts or substantially the same facts as a claim" did not allow the court to consider facts which were put in issue by a defendant. This interpretation, he said, could work no injustice now that sections 11, 14 and 33 of the 1980 Act permitted the court to do justice in ways which were not possible before the amendments to the limitation legislation which came into effect from 1963 onwards. Even if the statute now allowed for a wider rule, we must interpret the rule as it stands, he said, and assume that the Rules Committee had deliberately decided to restrict its scope pursuant to its power under section 35(4).
  48. I have shown how there is no evidence that the committee ever did decide to introduce such a restriction. But for the introduction of the Human Rights Act 1998 ("the 1998 Act"), however, an Act which was not in force when the master made his original ruling, I would have been of the view that Mr Kay's arguments on the construction of the rule (as opposed to the statute) were soundly based. Mr Ralls sought energetically to encourage us to read into the rule words which were not there. Without the encouragement of section 3(1) of the 1998 Act, I could see no way of interpreting the language of the rule so as to produce a just result.
  49. The 1998 Act, however, does in my judgment alter the position. I can detect no sound policy reason why the claimant should not add to her claim in the present action the alternative plea which she now proposes. No new facts are being introduced: she merely wants to say that if the defendant succeeds in establishing his version of the facts, she will still win because those facts, too, show that he was negligent and should pay her compensation.
  50. In these circumstances it seems to me that to prevent her from putting this case before the court in this action would impose an impediment on her access to the court which would require justification. If it cannot be justified, Mr Martin cannot then be heard to say that she could always bring another action. In such an action she would have to confront the argument that the six other people on the boat would probably have been willing to help her to understand what had happened if only her solicitor had approached them earlier, despite their later refusal to help her in any way. Why should she have to be troubled with this, one asks rhetorically, if there is no reasonable justification for the rule Mr Kay seeks to uphold.
  51. I do not consider that the rule, as interpreted by the master and the judge, has any legitimate aim when applied to the facts of the present case. Whether Mr Martin put forward his version of events (which the claimant now wishes to adopt) before or after the expiry of the primary limitation period ought to make no difference to her ability to adopt it as part of her case and say that if that was indeed what had happened, he had nevertheless been negligent. If she delayed unreasonably in putting forward her amended pleading, the master could have blocked it on those grounds, but he made it clear that he would not have exercised his discretion against her if the rule had permitted him to allow the amendment. Even if the rule had any legitimate aim in the circumstances of this case, the means used by the rule-maker (if we have to interpret the rule in the way favoured by the court below) would not be reasonably proportionate to that aim.
  52. The House of Lords has been showing us, most recently in R v A [2001] UKHL 251 at [44], 2 WLR 1586, how we should approach the interpretative task imposed on us by section 3(1) of the 1998 Act. It is not necessary to read into this judgment the whole of the relevant passage in Lord Steyn's speech. It is sufficient only to quote two sentences (at para 44):
  53. "In accordance with the will of Parliament as reflected in section 3 it will sometimes be necessary to adopt an interpretation which linguistically may appear strained. The techniques to be used will not only involve the reading down of express language in a statute but also the implication of provisions."

  54. Mr Ralls contended that we should interpret CPR 17.4(2) as if it contained the additional words "are already in issue on". It would therefore read, so far as is material:
  55. "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 are already in issue on a claim in respect of which the party applying for permission ahs already claimed a remedy in the proceedings." (Emphasis added).

    This would bring the sense of the rule in line with the language of the 1980 Act, which is the source of the authority to make the rules contained in CPR 17.4.

  56. In my judgment it is possible, using the techniques identified by Lord Steyn in R v A, to interpret the rule in the manner for which Mr Ralls contends. In this way there would be no question of a violation of the claimant's Article 6(1) rights, and the court would be able to deal with the case justly, as we are adjured to do by the Civil Procedure Rules. I would therefore permit the amendment and allow the appeal. A case management conference should be heard at an early date with a view to setting a timetable for an early trial after all the delays that have recently occurred.
  57. In these circumstances it is not necessary to consider Mr Ralls's alternative arguments in any detail. I can say quite briefly, however, that I consider that the judge was correct to reject the arguments which placed the claimant's date of knowledge unarguably at the time when her solicitors received the amended defence. Mr Martin was entitled as a matter of law, if he chose to descend to that level, to run the unattractive argument that his loyal Trappist friends might have been disposed, after all, to help the grievously injured claimant if only her solicitor had approached them earlier. It would not have been right to shut out an argument along those lines, as would inevitably have been the case if permission had been granted for the amendment on the basis of the claimant's new section 14 argument which was not before the master.
  58. Lord Justice Latham:

  59. I agree.
  60. Lord Justice Kay:

  61. I also agree.
  62. Order: Appeal allowed with the costs, 12,000 of which to be paid on account. Application for wasted costs against former solicitor refused. Permission to appeal to the House of Lords refused.

    (Order not part of approved judgment)


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