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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Goode v Martin  EWCA Civ 1899 (13 December 2001)
Cite as:  WLR 1828,  CLC 420,  1 All ER 620,  EWCA Civ 1899,  CP Rep 16,  CPLR 74,  PIQR P24,  1 WLR 1828
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
London, WC2A 2LL
Thursday 13th December 2001
B e f o r e :
LORD JUSTICE LATHAM
LORD JUSTICE KAY
| VIRGINIA GOODE
|- and -
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)
Jervis Kay QC and John Russell (instructed by Lester Aldridge for the Respondent)
Crown Copyright ©
Lord Justice Brooke:
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.
"(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."
"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."
"(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 …"
"…(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."
"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."
"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."
"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."
"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.
Lord Justice Latham:
Lord Justice Kay:
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.