Aldi Stores Ltd v Holmes Buildings Plc [2003] EWCA Civ 1882

"Holmes' claims against WSP in contract and tort are statute-barred in that: (i) the alleged breaches of contract occurred more than 6 years before the issue of these Part 20 proceedings against WSP on 28th September 2001 (ii) the alleged cause of action in tort accrued on 25th August 1994 when Holmes entered the Building Contract alternatively 20th September 1994 when Holmes executed the Deed of Warranty with Aldi, in either case more than 6 years before the issue of proceedings. 23C In respect of the claim against WSP, paragraph 30F is denied. On 22nd September 1998 Holmes received and considered the results of a level survey of the Aldi site and concluded that the survey showed settlement of up to 90 mm across the length of the floor slab. Given (i) their contractual obligations to Laporte/Aldi in respect of maximum settlement (ii) their possession and interpretation of WSP's letter to them dated 7th June 1994 as relied on (in particular) in paragraph 15 of the Re-Amended Particulars of Claim, Holmes' date of knowledge was no later than 22nd September 1998 and therefore more than 3 years before the said issue of proceedings."

"Further, if, as WSP allege in paragraph 23B(ii), which is denied, the right to sue WSP in respect of the losses claimed by Aldi arose upon Holmes entering into the Building Contract with Laporte on 25th August 1994 and/or executing the Deed of Warranty with Aldi on 20th September 1994, Holmes's knowledge within the meaning of section 14A(5) did not arise until (a) 22nd June 2001 (service of the Particulars of Claim), alternatively (b) Holmes had had a reasonable opportunity to consider and respond to Aldi's solicitors' letter of 30th November 1998."

"The Aldi Part 20 action was commenced on 28 September 2001. Holmes' case on the limitation issue is as follows: 4.1 It is accepted that all Holmes' breach of contract claims against WSPL are statute-barred. 4.2 It is now accepted that, as at the date of issue of the Aldi Part 20 proceedings, the primary limitation period in respect of Holmes' negligence claims against WSPL had expired. We appreciate that this is contrary to the presently pleaded case. The Reply will be amended in due course. 4.3 The Aldi Part 20 Proceedings were issued within the 'secondary limitation period' laid down by section 14A of the Limitation Act 1980 as Holmes did not, prior to 28 September 1998, have the 'knowledge' required for bringing an action under the terms of section 14A(5)."

"Having listened to lengthy submissions it seems to me quite clear that what is sought to be put forward is not just a new head of damage, it is a new cause of action because what is alleged is in respect of a new liability, even though that allegation has already been made elsewhere. It is not right to say that this is just a new head of damage. Different liabilities of the same nature are alleged as between Aldi and B&Q. Therefore one has to look at whether the Limitation Act 1980 should be applied to prevent the new cause of action being introduced, or to apply the statute to allow the matter in because the new cause of action arises out of the same facts or substantially the same facts as are already in issue. The substantial fact which now needs to be alleged is a Deed of Warranty with B&Q in the terms summarised in paragraph 23 of the Amended Particulars of Claim. By way of second thoughts the pleader has changed the amendment so that he does not go straight into the Deed of Warranty as having been made in reliance on advice, but says that in reliance on advice a Building Contract was entered which required the Deed of Warranty be entered into if required. I think this is not a sufficient disguise for what is being alleged. The matter could have been raised earlier. I am reluctant to say that, as I am asked, this is an abuse of process as it is somewhat brutal language but I simply say it is a matter to be taken into account in the exercise of my discretion. In all the circumstances I do not allow the amendment put before me save that there may be included some non-controversial matters which have not been considered. Taking the application as a whole, I reject it."

"It is important to note that what makes a 'new claim' as defined in section 35(2) is not the newness of the claim according to the type or quantum of remedy sought, but the newness of the cause of action that it involves. The formula employed in section 35(2)(a) and (5) is 'a claim involving ... the addition or substitution of a new cause of action'. And Ord 20 r 5(5) refers not to a claim but to '[a]n amendment the effect of which is to add or substitute "a new cause of action"

"The general principles, which govern the court's approach to an application to amend the pleadings is to be found in the well known and often cited passage in the judgment of Bowen LJ in Cropper v Smith (1884) 26 Ch D 700, 710-711, with which AL Smith LJ expressed his 'emphatic agreement' in Shoe Machinery Co v Cutlan [1896] 1 Ch 10, 112. Bowen LJ said: 'it is a well established principle that the object of courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance of their rights.... I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace.... It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right.' There are numerous other authorities to the same effect. In Clarapede & Co v Commercial Union Association (1883) 32 WR 262, 263, Sir Baliol Brett MR said: 'however negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated in costs.'"

"... which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people."

"If I am right that the amendment sought is not a new claim under section 35(5)(a), there is no prejudice in the form of a loss of an accrued defence of limitation because the Rogers have no such defence."

"... 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."