“On the information currently available to me, I estimate that at least around 8,630 Claimants would have a cause of action accruing after16 June 2020 . … This figure is based on the figures from the Leigh Day cohort and applied pro rata to the wider cohort.”
“35. New claims in pending actions: rules of court. (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 (b) the addition or substitution of a new party; and “third party proceedings” means any proceedings brought in the course of any action by any party to the action against a person not previously a party to the action, other than proceedings brought by joining any such person as defendant to any claim already made in the original action by the party bringing the proceedings. (3) Except as provided by section 33 of this Act or by rules of court, neither the High Court nor the 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. For the purposes of this subsection, a claim is an original set-off or an original counterclaim if it is a claim made by way of set-off or (as the case may be) by way of counterclaim by a party who has not previously made any claim in the action. (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 (b) in the case of a claim involving a new party, if the addition or substitution of the new party is necessary for the determination of the original action.” (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) the addition or substitution of a new cause of action; or (b) the addition or substitution of a new party; (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 (b) in the case of a claim involving a new party, if the addition or substitution of the new party is necessary for the determination of the original action.”
“i) Is it reasonably arguable that the opposed amendments are outside the applicable limitation period? ii) Did the proposed amendments seek to add or substitute a new cause of action? iii) Does the new cause of action arise out of the same or substantially the same facts as are already in issue in the existing claim? iv) Should the Court exercise its discretion to allow the amendment?”
“[42] There can be no doubt that if the pleading says in terms that no claim is put forward in respect of a cause of action arising before a stipulated date, the problem under Section 35 of the Act can be avoided. However none of the three cases explains the basis upon which an order of the Court has the effect of avoiding the problem presented by Section 35, but I would infer that it is that the pleading is to be read with the order and therefore as containing an express reservation equivalent to the terms of the order. [43] What is clear is that there is authority in the two cases in the Court of Appeal that an amendment can be allowed on the basis that it does not “relate back” to a date earlier than that fixed by the court. [44] I do not understand the reasoning of the court in any of the three cases to limit the circumstances in which this course can be permitted to cases where there is agreement between the relevant parties: indeed the agreement of the parties could not validate a manner of proceeding if it were prohibited by statute. [45] Nor do I regard the reasoning in any of the three cases to limit the application of the “Mastercard exception” to particular types of claim. [46] Accordingly, I regard it as open to me in principle to permit amendments upon the basis that the Court orders that the doctrine of relation back is limited to a particular date.”
“[62]. However, in my judgment there is a class of case where the court should not exercise its discretion in a way which side-steps the conventional approach to deciding the limitation point at the amendment stage. This is where the defendant contends it has a reasonably arguable limitation defence to the entirety of the new cause of action sought to be introduced, having regard to the date of its accrual, which cannot be overcome by recourse toCPR 17.4 (2). [63]. Both the conventional approach and the Mastercard basis of amendment are aimed at preserving a defendant’s limitation defence. The conventional approach is in my judgment the appropriate one to adopt where the defendant has a serious argument that the whole of the new claim is statute barred. As the relevant works were undertaken in 2010 and 2011, that is DBS’s position on the present application.”
“[85] Does the court have power to make that order, if one of the parties does not agree to it? [86] Literally, s.35 and rule 17.4 do not permit such an approach. I have considered whether to conclude, as Judge Russen QC did, that the procedure approved by the Court of Appeal should only be exercised in a true Mastercard case (as a means of defining the non-barred claims that can be added by amendment), and not where the new claims would remain subject to limitation defences. I think that may be too narrow an approach. [87] Where an ACS order is made, the purpose underlying s.35 can be achieved, in that the defendant is not deprived of its ability to rely on limitation as fully as if a new claim form had been issued, but the determination of that issue is deferred. S.35 itself is concerned only with preserving the ability of a defendant to rely on a limitation defence; it is not concerned with protecting the parties from having to investigate the facts relating to the new claim, as they may have to do to some extent if a new claim form is issued instead. On the other hand, the issue of a new claim would provide the defendant with the opportunity to seek to strike it out summarily on limitation grounds, or have a trial of a preliminary issue, without the need to prepare for a full trial on the merits. Early determination of a limitation issue is usually desirable because, if the defence succeeds, it saves the parties from the costs of investigating the merits of a stale claim. [88] It therefore seems to me that the court ought to have power to permit an amendment in ACS form where (but only where) that is just and convenient, even if a relevant party does not consent, because it gives effect to the purpose of s.35 and may be more convenient than requiring a new claim to be issued. Mr Hudson did not argue that the Court could not do it, only that it should not do so on the facts of this case. It is, in my view, nevertheless a power that should be exercised with caution, given its potential to subvert the purpose underlying the Limitation Act. [89] The discretion to permit an amendment in ACS form must be exercised with regard to any prejudice likely to be caused to the defendant, the extent to which in a particular case the purposes of the Limitation Act would be undermined by it, and the consequences for the future management of the trial, both as regards the existing claims and the new claims. If the defendant might be prejudiced by such a course, as compared with its position if a new claim has to be issued, or if it will encumber or possibly delay the trial or add to the burdens of case management, it is unlikely to be appropriate to make such an order. Whether it is appropriate to make an ACS order is likely to depend on the stage that the unamended proceedings have reached, when the trial is due, the nature of the issues for trial as matters stand, the impact of the new limitation issues on the trial, including what further disclosure or evidence might be required, and whether the respondent has a strong case for summary (or prior) determination of the limitation issue. [90] If, having considered those matters, it is more convenient to deal with a limitation issue within the existing proceedings, the court can make an ACS-type order, even if one party unreasonably objects.”