Biddle & Company (a firm) v Tetra Pak Ltd & Ors [2010] EWHC 54 (Ch)

[2010] EWHC 54 (Ch)

Case No CH/2009/APP/0197

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 21/01/2010

Before

MR JUSTICE WARREN

Between

BIDDLE & COMPANY (A FIRM)Appellant

(1) TETRA PAK LIMITEDRespondents

(2) TETRA PAK CPS LIMITED(Claimants)

(3) TETRA PAK BUSINESS SERVICES LIMITEDRespondent

(4) TETRA PAK MANUFACTURING (UK) LIMITEDRespondent

(5) TETRA PAK PROCESSING UK LIMITEDRespondent

(6) TETRA PAK MOULDED PACKAGING SYSTEMS LIMITEDRespondent

(7) TPR PENSION SERVICES LIMITEDRespondent

Mr Michael Furness QC (instructed by Lovells LLP) for Appellant

Mr Brian Green QC (instructed by K & L Gates LLP) for Respondents

Hearing Hearing date: 3rd December 2009

Judgment

Introduction

[1]This is an appeal by the first defendants (“Biddle & Co”) against an order of Deputy Master Smith dated 13 March 2009 by which he allowed the claimants (together “Tetra Pak”) to serve particulars of claim on Biddle & Co notwithstanding the expiry of a relevant limitation period and made various consequential directions. The claimants are the sponsoring employers under and trustees of a pension scheme known as the Tetra Pak Retirement Benefits Scheme (“the Scheme”). The factual background, about which there is little, if any dispute, set out below draws heavily on the Deputy Master’s judgment.

[2]Biddle & Co were a firm of solicitors retained to advise in relation to the Scheme from 1992 to 1995. The fourth defendants, Kerr & Company, were a firm retained to provide actuarial and benefit consultancy services to Tetra Pak from 1992; and the fifth defendants are a successor firm.

[3]The claims against all defendants relate to an alleged failure to advise adequately and to draft effective documentation to reflect the requirements of European law concerning the equalisation of normal retirement age for men and women members of the Scheme. Tetra Pak allege that Biddle & Co were negligent and in breach of their retainer in failing to ensure that equalisation was achieved in the period 1992 until July 1995 when an amending deed was executed. It is also alleged that the amending deed was itself defective.

[4]Tetra Pak’s position is that they only became aware of the problems in relation to the Scheme in May 2007.

[5]On 2 July 2008, the claim form was issued. The brief details of claim were as follows:

“ 3. The first defendant was at all material times a firm of solicitors and is sued as such…….. 4. The fourth defendant was at all material times a firm of actuaries and benefit consultants and is sued as such…. 5. The claim against the defendants is for damages sustained by all and/or any of the claimants and/or the Scheme (in respect of which the seventh claimant is entitled to sue) caused by the negligence and/or breach of contract and/or breach of fiduciary duty of the first and/or fourth defendants in their provision of advice and services and/or their omission to provide advice and services to the claimants (and each of them) in connection with the Scheme from approximately 1992 in connection with issues of the equalisation of pension benefits and related issues.”

[6]The brief details of claim are, it can be seen, reasonably focused, being concentrated on alleged failures in relation to equalisation issues. They are not drafted in the broadest form simply alleging breaches of duty without identifying the particular areas of complaint.

[7]The claim form was issued before any letters had been sent in accordance with the Professional Negligence Pre-Action Protocol. On 6 October 2008, some 3 months after issue of the claim form, Tetra Pak sent letters of claim to the Defendants. The letters stated that a protective claim form had been issued and that Tetra Pak were willing to agree a stay of proceedings in order to enable the parties to comply with the Protocol The letter sent to Biddle & Co did not state that the fourth and fifth defendants were also parties to the claim.

[8]The fourth and fifth Defendants did not agree to a stay. Tetra Pak therefore served proceedings on them on 27 October 2008. The documents served comprised the claim form and a document headed “Particulars of Claim against the 4th and 5th Defendants”. Those particulars of claim sought relief only against those defendants; the particulars of claim were clearly not directed at Biddle & Co and although reference was made to Biddle & Co that was done in order that the pleading would make sense.

[9]Following receipt of the letter to them, Biddle & Co indicated that they were willing to agree to a stay. There followed communications between Mr Andrew Paton on behalf of Biddle & Co and Ms Clare Tanner of Tetra Pak’s solicitors. By an email dated 10 October 2007, Mr Paton stated that insurers had indicated that a stay was appropriate; he asked for a copy of the claim form and any particulars of claim. He asked what terms were proposed for a stay. Following a subsequent phone conversation between Mr Paton and Ms Tanner, she sent a draft agreement extending time for service of the claim form and particulars of claim to 10 February 2009. No mention was made in that draft of the claim against the fourth and fifth defendant of which Mr Paton appears to have remained in ignorance.

[10]On 24 October 2008, Ms Dimsdale Gill, the partner in Lovells who had been instructed on behalf of Biddle & Co, sent an e-mail to Ms Tanner asking for a scanned copy of the claim form. Ms Tanner complied with that request on the same day. This was the first occasion on which Biddle & Co became aware that a claim was made also against the fourth and fifth Defendants. There were a number of communications between Ms Dimsdale Gill and Ms Tanner in the next few days. There was some dispute before the Deputy Master whether those communications and the earlier communications between Mr Paton and Ms Tanner resulted in a binding agreement to extend the time for service of the claim form and the particulars of claim. The Deputy Master set out in his judgment the difficulties facing Tetra Pak in asserting a binding agreement and records that “By the time of the hearing I think that Miss Asplin [Sarah Asplin QC who then represented Tetra Pak] accepted that there was no binding agreement for an extension of time”. The matter has proceeded before me on the basis that there was no such agreement.

[11]On 31 October 2008, the claim form was served on Biddle & Co. Tetra Pak issued a without notice application to extend time for service of the particulars of claim to 4.00 pm on 28 November 2008. On 31 October 2008, Master Teverson made the order sought with permission to apply to vary the order.

[12]On 25 November 2008, Tetra Pak sent draft amended particulars of claim to Biddle & Co and to the Fourth and Fifth Defendants. This was, in form, a proposed amendment to the particulars of claim which had already been served on the fourth and fifth defendants. Biddle & Co refused to agree the amendments and insisted that Tetra Pak apply for permission to amend. They contended that the amendments would be to introduce a new claim outside the limitation period and could not be allowed.

[13]On 28 November 2008, Tetra Pak issued their application for permission to amend; it was that application which came before the Deputy Master. He decided that it was open to Tetra Pak to serve particulars of claim on Biddle & Co, not, at least in the first instance, by way of amendment of the original particulars of claim but as separate particulars of claim, being the first particulars of claim against Biddle & Co. Having reached that decision, he went on to say that it seemed appropriate to join the particulars of claim against Biddle & Co and against the fourth and fifth Defendants in a single document, remarking that this would be in substance a consolidation of the Particulars of Claim rather than an amendment.

[14]I will consider the relevant statutory provisions under the Limitation Act 1980 and the relevant provisions of the CPR in a moment. I note here that the Deputy Master rejected Miss Asplin’s arguments that the amendments did not amount to a new claim for limitation purposes and that, even if they did, that any new cause of action arose out of the same or substantially the same facts as are already in issue.

[15]The result of the Deputy Master’s decision was that Tetra Pak would be able to assert claims against Biddle & Co dating back to 15 years before the issue of the claim form (subject always to Tetra Pak establishing that the claim form was issued within the period specified in section 14A Limitation Act 1980, as to which see paragraph 88ff below).

The issues in summary

[16]The issues fall under three headings:a. Is it permissible to have separate particulars of claim against different defendants?

b. Is the claim against Biddle & Co a “new claim” for limitation purposes?

c. If the claim is a new claim, does it arise out of the same or substantially the same facts as are already in issue?

The legislation and the relevant provisions of the CPR

[17]The ordinary limitation period for claims of the sort made by Tetra Pak against Biddle & Co is 6 years. That can be extended, where the case is based on negligence (other than personal injury actions) under section 14A.

[18]This extended period is, in turn, subject to a long-stop period of 15 years from the date of the alleged act of negligence to which the damage claimed is alleged to be attributable.

[19]Section 35 provides, relevantly, as follows:

“(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 the case of any other new claim, 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….. (3) ……… neither the High Court nor any county court shall allow a new claim within subsection (1)(b) above, other than an original set-off or counterclaim, 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; and….” (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 the case of any other new claim, on the same date as the original action. (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; and….”

[20]The relevant rules are found in CPR 17.4 which provides as follows: “Amendments to statements of case after the end of a relevant limitation period 17.4(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…….” (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…..

[21]The CPR contain a definition of “statement of case” at CPR 2.3(1) “‘statement of case’ –(a) means a claim form, particulars of claim where these are not included in a claim form, defence, Part 20 claim, or reply to defence; and

(b) includes any further information given in relation to them voluntarily or by court order under rule 18.1”

[22]Under CPR 7.2, proceedings are commenced by the issue of a claim form. CPR 7.3 provides that a claimant may use a single claim form to start all claims which can be conveniently disposed of in the same proceedings. CPR 16.2 sets out the requirements for the contents of the claim form.

[23]Particulars of claim (which is not a defined term) are required in any Part 7 claim: see CPR 7.4; they must either be contained in or served with the claim form or “must be served on the defendant by the claimant within 14 days after service of the claim form” and in any case no later than the latest time for service of the claim form itself. The claimant must file a copy of the particulars “within 7 days of service on the defendant”. CPR 16.4 sets out the requirements for the contents of the particulars of claim. Exceptionally, the Court may dispense with particulars of claim under CPR 16.8. It is possible for the Claim Form itself to be a sufficient statement of case which shows that in some circumstances, the claimant’s cause of action is to be found in the Claim Form and nowhere else.

[24]CPR 17.1 deals with amendments generally: Amendments to statements of case(1) A party may amend his statement of case at any time before it has been served on any other party.

(2) If his statement of case has been served, a party may amend it only – (a) with the written consent of all the other parties; or (b) with the permission of the court.

(3) If a statement of case has been served, an application to amend it by removing, adding or substituting a party must be made in accordance with rule 19.4.

[25]Reference has been made to CPR 20.6 which is concerned with contribution notices. This allows a defendant who has filed an acknowledgment of service or a defence to make an additional claim for contribution or indemnity against a person who is already a party to the proceedings bya. filing a notice containing a statement of the nature and grounds of his additional claim; and

b. serving the notice on that party. A defendant may file and serve a notice without the court’s permission, if he files and serves it with his defence or at any other time with the court’s permission.

Separate Particulars of Claim?

[26]Mr Furness QC, who appears for Biddle & Co, submits that the CPR envisage only a single document containing the particulars of claim even where those particulars are not included in the claim form. It is not open to a claimant who has joined two defendants to serve separate particulars of claim on each of them even where the causes of action against each defendant are entirely distinct as in the present case. Once particulars of claim have been served on one defendant, those particulars are the only particulars contemplated by the CPR. If the claimant wishes to make allegations against the other defendant different from those which are contained in the particulars of claim, he must amend the particulars of claim. If, for whatever reason, he is not allowed to amend the particulars of claim, he cannot raise further allegations against the other defendant. It does not, according to this argument, assist the claimant if he has, as in the present case, expressly directed his pleading at one defendant.

[27]The consequence is stark. In the present case, the issue of the claim form stopped time running for limitation purposes against Biddle & Co as much as against the other defendants. Subject to the claim having been brought within the time-limit specified in section 14A, Tetra Pak would be able to assert claims against Biddle & Co going back for 15 years prior to the date of issue of the claim form. But the service of particulars of claim on the fourth and fifth Defendants and directed only at those defendants nonetheless prevents Tetra Pak from relying on claims more than 15 years prior to some later date when it amends the original particulars of claim pursuant to permission granted by the Court. And this is so even though Tetra Pak could have issued a separate claim form against Biddle & Co (in which case the present issue would not have arisen), even though the particulars of claim were served on Biddle & Co in time and even though Biddle & Co have almost certainly suffered no prejudice as a result. Mr Green QC, who appears for Tetra Pak, accuses Biddle & Co of being opportunistic. I do not propose to allow myself to be diverted by submissions of that sort. If the point raised by Mr Furness is a good one, it is one which Biddle & Co are perfectly entitled to take, whether or not it is simply technical.

[28]In contrast, Mr Green submits that it is perfectly permissible to have separate sets of particulars of claim for different defendants. It should be noted that he does not submit – and it does not follow from the submission which he does make – that separate particulars of claim could be served (at least without express direction from the court) where a new claim is sought to be made against a defendant on whom particulars of claim had already been served.

[29]The provisions of the CPR which I have mentioned above (other than CPR 7.3) focus on the straightforward case of a single defendant. The rules do not expressly state what is to happen where there is more than one defendant against whom different causes of action are raised. Where the particulars of claim are contained in the claim form, they will in practice inevitably be directed at each defendant; any new claim would have to be made by amendment to those particulars. But where they are not contained in the claim form, CPR 7.4 requires particulars of claim to be served on “the defendant” and CPR 16.4 sets out what must be included in the particulars of claim.

[30]As I have pointed out, there is no definition of “particulars of claim” in the CPR. But particulars of claim do not exist in the air. They are there to identify in some detail what claim or claims are asserted. One question is whether a single document must identify the detail of the claims against each defendant or whether a separate document can be directed at each defendant. The choice is between these two readings of CPR 7.4:a. Particulars of claim, a single document, setting out the claim against all defendants must be served on each of the defendants and

b. Particulars of claim against a defendant, setting out the claim against that defendant, must be served on that defendant.

[31]The issue of separate particulars of claim is not, I think, the central question, although it is a significant question. The real question is whether there is a new claim for the purpose of section 35. Even if Mr Green is correct in saying that there can be more than one particulars of claim, it does not necessarily follow that there is no new claim. Section 35 does not refer to a new claim introduced by amendment. It could cover a new claim introduced by a separate particulars of claim. On the other hand, even if Mr Furness is correct in saying that there can be only one particulars of claim at any time, there is a separate question. It is whether, in a case where the original particulars of claim make no claim at all against one defendant, the addition of a claim against that defendant (within the scope of the claim form of course) is the introduction of a new claim and falls within CPR 17.4.

[32]Mr Green submits that Tetra Pak took the course which it did as a sensible way of meeting the refusal of the fourth and fifth defendants to agree to a stay. The response, he suggests, was designed to save costs. He says that it would be wholly disproportionate and unjust to disallow the route which Tetra Pak have taken when it is really only a matter of form. He submits, in reliance on Hannigan v Hannigan [2000] 2 FCR 650, that the CPR should not be interpreted as conferring a windfall on one party or another. In that case, the Court of Appeal pointed out that the overriding objective is not furthered by “arid squabbles about technicalities” in a case where the solicitors knew what was being claimed and why and where it would be wholly disproportionate to strike out a claim on the basis of errors of form since it would give the other side a completely unjustified windfall.

[33]Mr Furness, however, puts a very different gloss on the events which took place saying that Tetra Pak was less than straightforward with Biddle & Co and have only themselves to blame for the predicament which they now find themselves in. The issue is not one of an unjustified windfall, but of the true interpretation of the CPR having nothing to do with “an arid technicality”.

[34]The true meaning of the CPR cannot, I consider, depend on merits arguments of that sort. Even if Mr Green is correct on the merits of the present case, merits arguments on different facts may point to a different construction from the one which Mr Green says is correct.

[35]Mr Furness puts forward a number of reasons for saying that the Deputy Master was wrong. I take them, and Mr Green’s responses, in turn.

[36]If a claimant chose to bring claims against different defendants using a single claim form, it must equally use one set of particulars of claim because the role of the particulars is simply to provide a more detailed formulation of the claims set out in the claim form. Mr Green responds that just as CPR 7.3 does not prescribe the using of a single claim form, a fortiori it does not prescribe that particulars of claim must be comprised in a single document. He adds that the rule allows one claim form dealing with a number of separate claims; the norm, he infers, must therefore be that without this rule, there would be separate claim forms, the claims being particularised in separate particulars of claim. That may be true; but it is not, I think, helpful to see what the position would have been in the absence of an express provision. I do not think that Mr Green’s response meets the point made by Mr Furness since he says only that if a claimant uses a single claim form then he must use a single particulars of claim. However, Mr Furness’ point is not so much an argument as the assertion of a conclusion. It is possible to read the CPR in either of the ways which I have indicated in paragraph 30 above although I do accept that what Mr Furness relies on is a pointer, albeit a small one, in favour of there being only one particulars of claim.

[37]Consistently with that, Mr Furness relies on PD16 paragraph 3.1 which provides that if practicable, the particulars of claim should be set out in the claim form. It would follow that, where practicable, particulars of claim should be included in the claim form even where separate claims are brought using one claim form against different defendants. However, Mr Furness’ point is not, I think, a strong one. The PD does not direct that the particulars have to be included in the claim form. It recognises, as does CPR 7.4 itself, that there may be separate particulars of claim. As Mr Green points out, there is nothing in CPR 7.4 or in paragraph 3.1 which requires the particulars of claim to be served in a single composite document. It is not suggested by Biddle & Co that Tetra Pak was not entitled to provide particulars of claim separately from the claim form and, according to Mr Green, practicality concerns led to particulars of claim not being contained in the claim form.

[38]Mr Furness says that the particulars of claim must set out all claims that the claimant wishes to make: see CPR 16.4; it cannot simply set out some of the claims and leave others to be dealt with in a separate document. I would not dissent from that in the context of separate claims made against a single defendant, but it has to be said that there is nothing express in the CPR which requires, or leads inevitably to the conclusion that there cannot be separate particulars of claim for separate defendants. The fact is that the documents on which Tetra Pak now seeks to rely do set out all of their claims against Biddle & Co.

[39]Next, Mr Furness submits that CPR 17.1 makes it clear that the court’s permission (or the consent of all parties) is required in order to introduce any new element into the particulars of claim after it has been served on any party. This clearly contemplates, he says, that there can be only one particulars of claim at any one time and that one cannot add new claims on top of those claimed in the original particulars of claim by serving new ones to stand alongside the old. Mr Green’s response is that this begs two questions, namely whether it is possible to have two sets of particulars sitting side by side and whether the introduction of separate particulars in relation to Biddle & Co is an amendment at all. It must surely be correct that, if more than one particulars of claim are permissible, then the separate particulars in relation to Biddle & Co are not an amendment of the original particulars in relation to the fourth and fifth defendants.

[40]I will deal is some detail later in this judgment with the decision of the Court of Appeal in Steamship Mutual Underwriting Association Ltd v Trollope & Colls (City) Ltd

(1986) 33 BLR 77

(“Steamship Mutual”). This was a decision under the pre-CPR regime. It is important in the context of section 35 Limitation Act 1980 assuming that Mr Green is wrong in saying that it is possible to have a separate particulars of claim against Biddle & Co which is not an amendment of the original particulars of claim.

[41]Reliance has been placed on that decision in relation to the “two sets of particulars” issue. It is not to my mind of great relevance. It should however, be noted that there is no hint in the judgments that an argument was raised to the effect that a separate statement of claim could have been served on the fifth defendants in that case. It would not, in any case, have availed the plaintiffs in the light of the principal reason for striking out the claim against the fifth defendants, namely abuse of process.

[42]Mr Furness relies on a number of suggested prejudices which a defendant could suffer if separate sets of particulars of claim were allowed. I will deal with them individually in a moment but note here Mr Green’s general submission that a claimant can obtain all of the suggested advantages in any case by issuing separate claim forms and serving separate particulars of claim at different times. Thus in the present case, Tetra Pak could have sued each group of defendants separately, served separate sets of particulars and then sought to have the two actions consolidated. The following paragraphs deal with Mr Furness’ detailed points under this head.

[43]Reference is made by Mr Furness to CPR 20.6. He says that this rule is premised on there being only one particulars of claim otherwise the provision could operate seriously to the detriment of the defendant. He says that the rule is intended to give the defendant an opportunity to issue a contribution notice having seen how the case is pleaded against the co-defendant in the particulars without the need for court permission. If more than one set of particulars is allowed, then a defendant (such as Biddle & Co in the present case) will be deprived of this important opportunity.

[44]I agree with Mr Green when he submits that CPR 20.6 is not consistent only with a single particulars of claim being permissible. His introductory general submission is in point. Further, there could be no possible prejudice to a defendant unless the particulars are in fact staggered in time and even then, it is only the first defendant to be served (the fourth and fifth defendants in the present case, not Biddle & Co) who could possible be adversely affected. But even then, the first defendant to be served can wait until he has seen the particulars of claim and then seek the court’s permission to seek contribution.

[45]It is then said that it would enable a claimant to hold back from showing its full hand in a claim to a defendant by demanding a defence without allowing him to see how the case is pleaded against other defendants. Again Mr Green’s general submission is in point. Moreover, nothing would be held back in respect of the claim against the defendant in question.

[46]Next, it is said in similar vein that it would enable a claimant to postpone a decision about whether to advance a case against a particular defendant until he had seen the defence of another defendant, all the while protected from adverse limitation consequences by the issue of the claim form. Accordingly, it would also encourage the issue of claim forms naming a wide range of parties against whom the claimant might want to make a claim, depending on the defences of other defendants. But save where a limitation period is about to expire, this is precisely the position which a claimant can achieve by issuing a claim form only against the particular defendant. I do not see it as encouraging the issue of claim forms as Mr Furness suggests: the claimant would have to have a real claim against other defendants, otherwise his claim form would be an abuse of process as was the writ in Steamship Mutual.

[47]The CPR, it is pointed out, require each defendant to serve his defence on every other party not just on the claimant; CPR 15.6. Without such a provision, one defendant would not know the defence of another defendant; he will want to know that defence in order to know how to conduct the proceedings in which each of the defendants is a party. In contrast, if Mr Green is correct in saying that separate particulars of claim can be served on separate defendants, there is no provision in the CPR which requires the claimant to serve on one defendant the particulars of claim against another defendant. This, Mr Furness submits, is because the CPR do not allow for or envisage more than one particulars of claim consistently with a suggested philosophy that the parties are entitled to full transparency at all stages of the litigation about what is pleaded against and by other parties. Mr Green’s answer to this is that the rule is necessary in relation to a defendant serving each of the other defendants with his defence: the only feature tying the defendants together is the fact that the claimant has joined them in the same action. He submits that, where the claimant joins more than one defendant in a given claim, the claimant is “obviously” obliged to serve his particulars of claim on each defendant. I dare say it is obvious that, if a defendant asked for a copy of the particulars served on a co-defendant, the court would order service of a copy if the claimant refused to provide one voluntarily. But that is not to say that the CPR actually require it to be done. Mr Furness is right, so far as I can see, to say that there is no provision requiring service in such a situation. This is a pointer – perhaps the strongest pointer which Mr Furness has identified – to the conclusion that separate particulars of claim are not permitted.

[48]There is no question of separate sets of pleadings against different defendants in Part 8 claims. There is, Mr Furness submits, no justification for any difference between Part 7 and Part 8 in this respect. I do not find the analogy helpful. There are no pleadings at all in Part 8 claims, only a claim form. CPR 16.1 expressly states that Part 16 does not apply to a Part 8 claim.

[49]The final point which Mr Furness makes is that if separate particulars of claim can be used for different defendants, they could be used to make separate claims against any single defendant. Mr Green’s response to that submission is that there is no reason in principle why that should not happen if there is a practical reason for adopting that approach. Just as one can have separate proceedings against a number of defendants which are consolidated, it is possible to have separate proceedings against a single defendant which are consolidated. He suggests that there would be no getting around limitation periods because all of the particulars of claim would have to be served within the time limit for serving the particulars of claim (4 months at most) unless the court extended it.

[50]I do not agree with Mr Green’s response since I think it more likely than not, without deciding the point, that it is incumbent on a claimant to include in his original particulars of claim all of the claims which he wishes to make pursuant to his claim form. If he does not do so, he can apply to amend or he can issue a separate claim form. But if a limitation period has expired, a new action would be out of time and an amendment would have to comply with section 35 Limitation Act 1980 and CPR 17.4 if there is a new cause of action. It is not, I think, open to him after the expiry of the limitation period to serve further particulars even within the period allowed for service of the claim form. The principles established by Steamship Mutual which I come to later preclude that course.

[51]But even if that is wrong, unlike the case of separate defendants where the claim form itself might be served at different times on different defendants, the claim form can be served only once on a single defendant. All of the particulars of claim must then be served within the 4 month time limit (just as if there had been separate claim forms).

[52]There is an additional factor to be borne in mind. There would not, it seems to me, be any objection, in a suitable case, in the court making an order, in advance of the service of any particulars of claim, to the effect that the claimant be permitted to serve separate particulars of claim on different defendants (copies to be served on the other defendants). Mr Furness might argue that this would be as impermissible as the service of separate particulars as of right. But I think he would be wrong to do so. I consider that it would be within the court’s general case-management functions to make such a direction if the overriding objective would be best fulfilled by such a course. If two separate particulars of claim were served in accordance with such an order, it could not be said that the later particulars of claim was an amendment of the earlier.

New cause of action/new claim

[53]Before expressing my conclusion on the issue of separate particulars of claim, I wish to consider the first question raised in Tetra Pak’s respondent’s cross-appeal, namely whether an amendment to the original particulars of claim would amount to the introduction of a new cause of action for the purposes of section 35 Limitation Act 1980 and a new claim for the purposes of CPR 17.4.

[54]Where an action is “founded on tort” it must be brought within 6 years of “the date on which the cause of action accrued” under section 5 Limitation Act 1980. Under section 14A, that period can be extended to 3 years from the starting date (as identified in accordance with section 14A(5)). The section thus envisages, in the first place, a cause of action and it is that cause of action which results in an “action founded on tort”. Section 35(1) refers to a new claim made in the course of any action; for present purpose, a new claim means the addition of a new cause of action. In CPR 17.4, a new claim also means, I consider, the addition of a new cause of action. CPR 17.4 applies, it needs to be recognised, to amendments to any statement of case; it thus applies to claim forms as much as to particulars of claim.

[55]I need at this stage of my judgment to look at Steamship Mutual in rather more detail. In that case, the plaintiffs sued the first defendants as contractors, the second defendants as architect and the fifth defendants as structural engineers in connection with the construction of a building. Practical completion took place in 1975. In 1981, problems were experienced with the air-conditioning pipes in the cavity walls. In April 1982, a writ was issued against the first, second and fifth defendants. In November 1982, a statement of claim was served on the first and second defendants, but not on the fifth defendants. In 1984, the plaintiffs discovered cracking and displacement of the walls allegedly caused by not having sulphate resisting cement and the absence of wall-ties. In June 1985, the plaintiff gave notice (under RSC O3 r6) of intention to proceed against the fifth defendants and applied to amend the statement of claim to advance claims against the first, second and fifth defendants in relation to the wall defects. The fifth defendants applied to strike out the action against them. The Judge refused leave to amend and struck out the action against the fifth defendants. The plaintiffs appealed. The appeal was dismissed. The principal reason for the strike out was that it was an abuse of process to issue a writ against a party when it is not intended to serve a statement of claim and where there is no reasonable evidence or ground on which to serve the statement of claim.

[56]So far as the amendment was concerned, it was held that this raised new claims for the purposes of section 35 Limitation Act 1980. This was a mixed question of law and fact. The court held that the original statement of claim narrowed the causes of action to those concerned with air-conditioning and that the question whether a new cause of action arose out of the same or substantially the same facts as an existing claim was a question of degree. The precise endorsement on the writ does not appear from the judgments. All one knows is that “it was in wide terms”. A letter from the plaintiffs’ solicitors made clear that the fifth defendants would not, at that stage, be subject to any adverse allegations in the statement of claim but that the plaintiffs’ position was reserved. The fifth defendants were advised to inspect the pipe-work (something which was nothing to do with the fifth defendants). There was no mention of the cavity wall – indeed problems with that had not yet become apparent.

[57]The plaintiffs, in response to the proposition that the proposed amendments would amount to a new cause of action, relied on the wide general endorsement on the writ. Counsel for the fifth defendants relied, in response, on what he called the “principle of abandonment” ie that by limiting the claim in the original statement of claim to air-conditioning defects, the plaintiffs had abandoned all other claims. To seek to re-introduce them by amendment would be to seek to introduce a new (and by then time-barred) cause of action. Reference was made to RSC O18 r15(2) which, in summary, provided that a statement of claim must not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ or arises from facts which are the same as or include or form part of facts giving rise to a cause of action mentioned in the writ. That rule finds no equivalent in the CPR.

[58]May LJ doubted that there was any sufficient legal basis for holding in favour of that simple doctrine of abandonment. But he was anxious to avoid subtleties in the context of limitation. He said this at p 97:

“When a plaintiff seeks leave to serve a re-amended statement of claim, and one has to consider and contrast it with the earlier statement of claim for the purposes, for instance, of s 35 Limitation Act 1980, one realistically looks at the two statements of claim. One does not look truly to the endorsement on the writ – in which the plaintiff by Order 6 r2(1)(a) need not “plead” any cause of action at all (if “plead” is the correct word). In passing, it is difficult to reconcile that particular sub-rule with the provisions of Order 18, r 15(2). But nevertheless, when one looks at the two statements of claim – the amended and re-amended statement of claim in this litigation – adopting what I trust is a reasonable and sensible approach, remembering the definition of cause of action in, for instance, Letang’s case, it seems to me as clear as it was to the learned judge that, in the action constituted by the writ and the re-amended statement of claim, the plaintiff was seeking to enforce a new claim, that is to say one which involved the addition of a new cause of action, that is to say the one which related to the brickwork.”

[59]Mr Furness submits that Steamship Mutual decided, at least under the old rules, that it was necessary to seek leave to amend to plead particulars against a defendant named in the writ where the original particulars did not advance a claim against that defendant. The position, he says, is no different under the CPR. Accordingly, where a party seeks to introduce into the particulars of claim after the expiry of the limitation period a claim not raised in the original particulars, the party is restricted by the provisions of section 35 and CPR 17.4(2).

[60]He may well be right to say that the permission of the court is required to the making of the amendment. But it is only if the amendment introduces a new claim, that is to say the addition of a new cause of action, that section 35 and CPR 17.4 come into play at all. Although in the passage which I have quoted from the judgment of May LJ in Steamship Mutual the comparison is made between the pleading before and after the proposed amendment, one cannot altogether ignore the originating claim – the writ in that case or the claim form in the present case. I accept that May LJ said that one does not look truly to the endorsement on the writ. But the endorsement cannot simply be ignored; indeed, just after the quotation, May LJ himself refers to the “action constituted by the writ and the re-amended statement of claim”. What May LJ said was entirely apposite in the case before him. It was relevant because the action as originally constituted did not raise, and was never intended to be the vehicle for raising, a claim relating to defects in the brickwork, defects which did not come to light until much later.

[61]Thus, looking at the position of the claim against the first and second defendants, the addition of claims relating to the brickwork were entirely new claims not within the scope of the writ and the original statement of claim against them. In relation to the fifth defendants, the claim sought to be introduced by amendment was also a new claim. As May LJ pointed out in Steamship Mutual at the top of p 88, the plaintiffs, if asked for a statement of claim, would either have declined to serve one (in which case the proceedings would have been struck out) or would have had to serve a statement of claim which they knew had no foundation. There was, I suggest, in reality no cause of action which could properly have been alleged even though the writ, as a matter of form, would have asserted general breaches of duty and/or contract. That is why the principal ground for striking out the claim against the fifth defendants was abuse of process.

[62]It is not at all surprising to find that, in those circumstances, there was a new claim against the first and second defendants. It seems to me that the real basis for the court’s decision on the issue whether or not there was a new claim was not a narrow comparison of the amended and re-amended statements of claim but an answer to the mixed question of fact and law very much based on the reality that the writ did not cover the brickwork claim at all. This is confirmed by the paragraph of the judgment of May LJ being the last paragraph beginning on p 98. After referring to the nature of the building and other relevant matters (including the correspondence between solicitors), he said this:

“I think that its effect [ie the effect of the amended statement of claim] was to limit the causes of action so that they became confined to the breaches of contract concerned with air-conditioning and negligence resulting in damages to the air conditioning. In the light of the definitions of cause of action already referred to, I do not think one can look only to the duty on a party, but one must look also to the nature and extent of the breach relied upon, as well as to the nature and extent of the damage complained of in deciding whether, as a matter of degree, a new cause of action is sought to be relied upon……”

[63]May LJ was considering these limitation issues primarily in the context of the claims against the first and second defendants against whom the plaintiffs sought to amend. Quite how he viewed what he was saying as applying to the fifth defendants is not entirely clear. He had already decided that the claim against the fifth defendants should be struck out as an abuse of process. It might be thought, therefore, that he was saying nothing at all, in this context, about the position of the fifth defendants. He might, I suppose, have considered that the claim against the fifth defendants was obviously a new claim since no claim at all had been made against them in the original and amended versions of the statement of claim: but he did not say so, and it would have been simple for him to say so.

[64]Further, he did note, near the beginning of his judgment, see at p 84, that the original statement of claim sought no relief against the “fifth defendants and that the only provision of substance which related to them was one paragraph which said that the case against the fifth defendants would be pleaded after service of the defences of the first to fourth defendants.” But no further reference was made by May LJ to that paragraph.

[65]I see entirely the force of May LJ’s reasoning in relation to the amendments so far as concerned the first and second defendants. As against them, the claims had become confined to the claims concerning air-conditioning. Further, his reasoning in relation to the fifth defendants in the context of abuse of process is compelling. But what one cannot take from the judgment is the proposition that the claim against the fifth defendants had been confined by the writ and the original and amended versions of the statement of claim to claims concerning the air-conditioning – claims which the plaintiffs never asserted, and never could assert, against the fifth defendants. Indeed, given the paragraph in the original statement of claim which said that the case against the fifth defendants would be pleaded after service of the defences of the first and second defendants, the only logical positions at the time of the application to re-amend were these:(i) either the case against the fifth defendants remained to be pleaded but that would be an abuse and the claim should be struck out or

(ii) by failing to plead the case against the fifth defendants at all by that late stage, the plaintiffs had confined their claims to claims against the first and second defendants to the exclusion of the fifth defendants.

[66]I do not therefore consider that Steamship Mutual is authority for a wider proposition to the effect that, simply because an amended pleading asserts a cause of action which does not appear on the face of the unamended pleading, there is necessarily a new claim giving rise to a new cause of action for the purposes of section 35 or CPR 17.4.

[67]Indeed, I reject that proposition. I do not consider that Steamship Mutual or any other authority requires the court to ignore altogether the contents of the claim form when it comes to assessing whether, and if so how, the causes of action asserted in the claim form have been confined and what causes of action remain extant. Thus consider the position immediately before the service of the original particulars of claim in the present case. The claim form had been issued and an “action founded in tort” had been constituted. The relevant causes of action included the claims which Tetra Pak now seeks to plead, in its current pleading, against Biddle & Co. By serving its particulars of claim on the Fourth and Fifth defendants, Tetra Pak may have confined its claims against them to the pleaded claims (but no issue arises on this). I do not, however, consider that by serving particulars of claim on the Fourth and Fifth defendants expressly headed as “Particulars of Claim against the 4th and 5th Defendants” and claiming no relief against Biddle & Co, Tetra Pak can be taken as confining its claim against Biddle & Co, let alone abandoning it altogether.

[68]In my judgment, by focusing, if not exclusively but principally, on the original and amended particulars of claim, Biddle & Co are adopting an incorrect approach to the question whether or not there is a new cause of action. In doing so, they fail to take account of the nature of the claim which the claim form has constituted namely, for present purposes, actions founded in tort against all defendants based on their failures in relation to equalisation between 1992 and 1995 and the drafting of the deed of amendment. They thus fail to recognise that, so far as concerns Biddle & Co, the particulars of claim against the fourth and fifth defendants - served on those defendants and making no claim against Biddle & Co – do not confine Tetra Pak’s claims against Biddle & Co at all. Biddle & Co’s approach is not only incorrect, but is not in accordance with the approach of Steamship Mutual on which they place so much reliance. For reasons which I have attempted to explain, I consider that the approach taken in that case was to identify the causes of action which the writ and the original (and amended) statement of claim maintained. The defective brickwork was not such a cause of action at any time before the defects came to light. The approach was not simply to look at the two versions of the statement of claim and to compare them to see if a new cause of action was introduced. A much wider enquiry had to be undertaken to see if that comparison was, on the facts of the particular case, the correct one. In Steamship Mutual, it may have been the correct comparison – although in the case of the fifth defendants, that is not clear as again I have attempted to explain. In contrast, in the present case, the comparison is not the correct comparison. Rather, I consider that the claim, as made in the claim form, against Biddle & Co, was not confined by the original particulars of claim.

[69]I find some additional support for that view, but do not need to rely on it for my conclusion, in this hypothetical situation. Suppose that the CPR expressly allowed a claimant to serve separate particulars of claim on different defendants. Although it would be necessary (as it is under the actual CPR) to confine the claims made in each of the particulars of claim to claims which fall within the scope of the claim form, it could not possibly be maintained that service of particulars of claim against the first defendant (making no claim against the second defendant) meant that, when it came to particulars of claim against the second defendant, the requirements of section 35 had to be complied with on the basis that there was a new claim (which might be impossible). This is because the service of the second set of particulars of claim would not be the addition of a new claim at all: it would be the particularising of the claim made against the second defendant in the claim form, which claims were in no way confined by the service of particulars of claim on the first defendant. I do not consider that such a hypothetical rule would in any way infringe the policy behind, or wording of, section 35. I see no difference in substance between such a hypothetical rule and an amendment to existing particulars of claim when it comes to deciding whether or not there is a new cause of action.

[70]Similarly, had there been a separate claim form raising Tetra Pak’s claims against Biddle & Co it could not be suggested that Tetra Pak would not have been entitled to serve the particulars of claim which it wished to serve. Section 35 Limitation Act 1980 by itself would not have prevented that course and does not display any policy which would suggest that such a course should be inadmissible. This reinforces the conclusion that there is no policy which would prevent the making of the hypothetical rule I have described.

[71]It follows that I do not consider that an amendment to the original particulars of claim to introduce the claim against Biddle & Co falls within section 35 or CPR 17.4. There is no new claim and no new cause of action.

[72]This aspect of the case is subject to a Respondent’s Notice on the part of Tetra Pak. This raises two matters which are effectively in the nature of a cross-appeal. The first is to this effect: if Tetra Pak were not entitled to serve separate particulars of claim on Biddle & Co, then the application to amend the original particulars of claim should be allowed because the amendment does not raise a new claim or new cause of action. The Deputy Master did not allow the amendment because he considered that there was a new claim. Kitchin J directed that the question of whether permission to appeal should be given should be dealt with on the hearing of the appeal. In the light of the discussion above, I grant permission to cross-appeal and allow the appeal on the basis of this first ground of appeal.

[73]If I am correct in my decision that separate particulars of claim are permissible, then Tetra Pak do not need to rely on their application to amend the original particulars of claim. But since the introduction of the claim against Biddle and Co would be subject to section 35 and CPR 17.4 if it were a new claim, it is part of my reasoning in dismissing the appeal that the (separate) particulars of claim would not introduce a new claim or a new cause of action.

[74]I should, however, note that Mr Green relies very much on a comparison between the contents of the original particulars of claim and the contents of the amended particulars of claim in support of the submission that there is no new cause of action. If, contrary to my view, the claims against all defendants are constrained by the terms of the original particulars of claim against only the fourth and fifth defendants, then it seems to me that there are insufficient facts pleaded to establish a claim or any cause of action against Biddle & Co for the purposes of section 35 and CPR 17.4. The facts and matters in the original particulars of claim relied on by Mr Green are insufficient to disclose any cause of action against Biddle & Co.

Same or substantially same facts

[75]The second aspect of the Respondent’s notice is this. Tetra Pak seeks to raise a cross-appeal from the decision of the Deputy Master’s rejection of the submission that, even if there is a new claim and new cause of action, it arises out of the same or substantially the same facts and matters as are already in issue. The Deputy Master pointed out that neither the original particulars of claim nor any defence made any allegations against Biddle & Co. He is certainly right to say that in the sense that the limited references to Biddle & Co in the pleading do not identify facts sufficient to substantiate a claim against them. Although, the allegations which Tetra Pak wish to make against Biddle & Co arise out of the same series of transactions and the same pattern of advice as the claims against the fourth and fifth defendants, different allegations will need to be made and different facts established against Biddle & Co from those relevant to the claims against the fourth and fifth defendants. As he says, the facts relevant to what an actuary ought to have done will be different from those relevant to what a solicitor ought to have done.

[76]Mr Green submits that the Deputy Master appears to have started from an incorrect position, namely that the facts out of which an amended claim arises must already be in issue between the claimant and the same defendant. He says that this is wrong; it is sufficient if the facts are the same as facts in respect of which the claimant has already claimed a remedy in the proceedings relying on the notes to CPR 17.4.4 in the White Book at p 438 and Charles Church Developments Ltd v Stent Foundations Ltd

[2006] EWHC 3158

[2006] 1 WLR 1203

[77]In that case, as the Deputy Master succinctly records, the claimant made claims against two defendants. The second defendant in its defence blamed the first defendant. The claimant sought to amend it particulars of claim outside the limitation period to plead against the first defendant the matters alleged by the second defendant against the first defendant. Jackson J permitted the amendment, holding that the amendment arose out of facts which were already in issue in the proceedings because they were raised in the second defendant’s defence. Accordingly, the claimant could allege against the first defendants facts which it had not previously alleged by virtue of facts having been raised, or put in issue, by the second defendant. The case is not really an authority for the proposition which Mr Green puts forward. However, it is, I think, correct that account can be taken in the present case of what is pleaded in the original particulars of claim against the fourth and fifth Defendants in determining whether the claim (on this hypothesis, a new claim) against Biddle & Co made in the proposed amended particulars of claim arises out of substantially the same facts and matters as the claim against the fourth and fifth Defendants.

[78]I do not read the Deputy Master as rejecting that proposition. However, he appears to have focussed on the question whether the claim against Biddle & Co arose out of the same facts as were alleged against the fourth and fifth defendants and not, expressly at least, on whether the claim might have arisen out of substantially the same facts (although he had earlier quoted the statutory words including both formulations). A comparison between the claims against Biddle & Co and against the fourth and fifth defendants does, indeed, show a substantial overlap of facts, something which is hardly surprising given that the complaint against both sets of defendants is that they failed to ensure that equalisation was effectively implemented. In addition, even though different duties lie on the actuaries and the solicitors, Mr Green submits that, in practice the factual investigation in relation to both the actuaries and the solicitors will also have a great deal of overlap and that what will be different is the legal significance arising out of the underlying facts. As the Deputy Master noted, Tetra Pak sought to plead a case against Biddle & Co “in substantially the same terms as pleaded against the fourth and fifth Defendants”.

[79]Notwithstanding that the alleged negligence of Biddle & Co and the fourth and fifth Defendants arose out of the failure to achieve effective equalisation, I do not consider that the claims against them, or the cause of action against them, arise out of substantially the same facts. There may be a significant overlap of fact and there may be a close similarity in nature of the cases against them. But in my judgment, the claims do not arise out of substantially the same facts. The facts relevant to the claim against Biddle & Co turn on the extent of their retainer – a different retainer from that of the fourth and fifth defendants – and the scope of duty which such a retainer imposes, each such retainer imposing a markedly different duty since the reasonable care to be exercised by an actuary is different from the reasonable care to be exercised by a solicitor. Further, there is no overlap at all in a significant respect, namely what each adviser did or did not advise. Now it may be that neither set of advisers gave any relevant advice at all so that they were possibly both guilty of a breach of duty. But the fact that both were guilty of the same failure does not mean that the cause of action arises out of substantially the same facts. One important fact relevant to the claim against Biddle & Co is the alleged failure of Biddle & Co to advise, not the alleged failure of the fourth and fifth Defendants to advise and vice versa.

[80]I conclude, on the basis of those considerations, that the new claims against Biddle & Co do not arise out of the same or substantially the same facts as the claims pleaded in the original particulars of claim against the fourth and fifth defendants.

[81]Mr Green then relies on a separate argument, an argument, referred to as the “piggy back argument”, which arose for consideration in my own decision in Harland & Wolff Pension Trustees Lt v Aon Consulting Financial Services Ltd

[2009] EWHC 1557 (Ch)

. It arises in the present case in this way. Even if Biddle & Co are correct in their submissions on these appeals, Tetra Pak should still be entitled to amend the particulars of claim to maintain their claims against Biddle & Co insofar as they relate to breaches within the 15 year period from service of the amended particulars of claim. Although the focus of those claims will be breaches of duty during that period, it will still be necessary to establish the scope of Biddle & Co’s retainer (which will necessitate going back to 1992) and to investigate what advice was given prior to the start of the limitation period in order to establish what Biddle & Co should, or need not, have advised about within the limitation period. Accordingly, a further amendment which allowed claims dating back to the beginning of the period of 15 years prior to the issue of the claim form would arise out of the same or substantially the same facts and matters as would be in issue in respect of claims dating back to the beginning of the period of 15 years from the date of service of the amended particulars of claim on Biddle & Co.

[82]This argument is, in principle, correct. The “piggy back” argument is a good one. If a claimant can persuade the court to allow amendments to add claims within the limitation period, he can then rely on his amended pleading to seek a further amendment to bring a new claim outside the limitation period if he can bring himself within section 35 and CPR 17.4 and persuade the court to exercise its discretion to allow the amendment. What the Deputy Master has allowed is an amendment to the original particulars of claim. He reached that result by deciding(a) that a separate pleading could be served and

(b) a process of consolidation could be cut short by allowing an amendment to the original pleading. It might then be said that even if the “piggy back” argument is correct, if (as under the hypothesis under consideration) a separate pleading was inadmissible and there is a new claim, his order should be set aside: the “piggy back” argument should then be assessed as of the date when permission is given to amend to include any claim against Biddle & Co which is within the limitation period at the time of any amendment made pursuant to that permission. I do not think that that would be correct. If the Deputy Master’s order allowing the amendment could, at the time he made it, have been justified applying the “piggy back” argument, then his order should not be set aside.

[83]In my judgment, the “piggy back” argument, assessed at the time of the hearing before the Deputy Master and continuing through until the service of the amended particulars of claim on Biddle & Co on 2 April 2009 is a good one. An amendment to allow claims within the period of 15 years before that date would obviously not have been barred by reason of the expiry of the long-stop period. Such a claim would necessitate investigation of the retainer and its scope of duty from it inception. Against the background of that notional amended pleading, I consider that a further amendment to add breaches of duty in respect of further allegations (dating back to the period beginning with the date 15 years prior to the issue of the claim form) of the same retainer and concerning advice or failure to advise on the same topic (namely equalisation) would be to include new claims arising out of substantially the same facts as those in issue under the notional amended pleading. In particular, in order to understand the obligations resting on Biddle & Co at the start of the 15 year period relevant to the notional amended pleading, it would be necessary to investigate what Biddle & Co had and had not advised prior to that date. Accordingly, any advice or failure to advise about equalisation, and any defective drafting of the 1995 Deed of amendment would not be time-barred (subject to the provisions of section 14A).

[84]In relation to section 14A, Mr Furness says that the onus is on Tetra Pak to show that its claims fall within section 14A. That may be so, but it does not follow that they have to do so in order to succeed on this cross-appeal. Thus let it be supposed that Tetra Pak cannot, in the end, bring themselves within section 14A because they had relevant knowledge more than 3 years before the issue of proceedings. The entire claim will then be out of time and will fail for that reason. In contrast, if the Tetra Pak can bring itself within section 14A, the claim and new claim introduced out of time (by reference to the 15 year long-stop) could both succeed. To allow an amendment to introduce the new claim may (quite properly) deprive Biddle & Co of a limitation defence referable to the 15 year period, but it will not enable Tetra Pak to rely on any cause of action which was in fact time-barred when applying section 14A.

[85]This is not prevented by section 35 or CPR 17.4. Section 35 does not preclude the amendment provided that rules of court (complying with section 35(5)) make suitable provision (ie for a new claim arising out of the same or substantially the same facts). CPR 17.4 makes such provision. There is nothing which requires a claimant who relies on section 14A to establish that he can in fact do so before being able to rely on section 35 and CPR 17.4 any more than he must prove any other issue which it is necessary for him to prove in order to succeed.

[86]If I am correct in my previous conclusions, it is not strictly necessary to decide the question whether the claim against Biddle & Co arises out of the same or substantially the same facts as those already in issue. However, if I am wrong in those conclusions, I would grant Tetra Pak permission to appeal on this aspect and would, in the exercise of my discretion, allow the amendment (subject to the omission of paragraph 7.6(b) of the amended particulars of claim (see paragraph 87 below).

Miscellaneous point

[87]Biddle & Co have a separate ground of appeal in relation to paragraph 7.6(b) of the amended particulars of claim; it is said that the Deputy Master should not, in any event, have allowed that paragraph to be included. Mr Green has made it clear that Tetra Pak will not, in the light of authority, seek to maintain this paragraph. I need say no more about it.

Conclusions

[88]In my judgement, it was open to Tetra Pak to serve separate particulars of claim on Biddle & Co so that no amendment was required to the original particulars of claim. I do not consider that the factors relied on by Mr Furness are anything other than weak pointers to the opposite conclusion. The CPR can be operated perfectly consistently in the context of separate particulars of claim in respect of different defendants against whom different causes of action are asserted. The fact that the court could order separate particulars, as I consider it can, shows that there is no prohibition on separate particulars of claim. And given that there is no prohibition, I do not see why a claimant should not be able to serve separate particulars of claim without the court’s direction, especially when this might enable the overriding objective to be better achieved. The separate particulars of claim do not introduce a new claim or a new cause of action.

[89]I also consider for the reasons given above, that an amendment to the original particulars of claim to assert the claim against Biddle & Co would not be the addition of a new claim for the purposes of section 35 Limitation Act 1980 or CPR 17.4. If that conclusion is correct, it makes Mr Furness’ objections to the possibility of separate particulars of claim so dim as to be almost invisible.

[90]I thus agree with the Deputy Master, that it was open to Tetra Pak to serve separate particulars of claim on Biddle & Co without needing to amend the original particulars of claim. It made perfectly good sense, therefore, for him to allow in one step (ie amendment of the original particulars of claim) that which could for all practical purposes be done in two (ie separate particulars of claim and consolidation of pleadings). But I disagree with the Deputy Master who considered that an amendment would result in the introduction of a new claim. He rejected the proposition that the original cause of action was to be found in the claim form. I agree that the claim form only sets out the nature of the claim (CPR 16.2(1)(a)) and that the facts on which Tetra Pak must rely must be set out in the particulars of claim (CPR 16.4(1)(a)). It may also be that the claim or cause of action that a party has to meet is found in the particulars of claim. But I disagree that it therefore follows that the claim or cause of action which a party has to meet is not to be found in the claim form. The claim form may be confined by the particulars of claim in the way which I have explained; but if particulars of claim do not confine the claim against a particular defendant, the cause of action against that defendant remains seated in the claim form in the same way that it remains seated in the claim form in relation to all defendants prior to the service of any particulars of claim. No new claim is introduced by that particularisation of that claim.

[91]If that is wrong, so that there is a new claim, I consider that the new claim (against Biddle & Co) arises out of substantially the same facts as the original claim. Although I reach a different conclusion from the Deputy Master, this is only on the basis of the “piggy back” argument, an argument which was not addressed to him. He cannot be criticised for reaching the conclusion which he did.

[92]Accordingly, the appeal of Biddle & Co is dismissed. If I am wrong in my conclusion that separate particulars of claim are permissible, I would allow Tetra Pak’s cross-appeal and allow the proposed amendments on the basis that there is no new claim and no new cause of action. And if that were wrong too, I would hold that the new claim arises out of substantially the same facts as the claims already in issue and would, in the exercise of my discretion, allow the amendment (subject to the omission of paragraph 7.6(b) of the amended particulars of claim (see paragraph 87 above)).