“(1) The contractor shall design parts of the permanent works as required in accordance with the provisions of the specification and submit drawings and specifications of his design to the Engineer. The contractor may submit a design prepared on his behalf by a sub-contractor or professional designer or propose a design prepared by the manufacturer. (2) The Engineer shall examine and check the contractor’s design or proposal and inform the contractor in writing, within a reasonable period after receipt of full particulars, either: (a) that the design or proposal has the approval of the Engineer, or (b) in what respects in the opinion of the Engineer the design or proposal fails to meet the requirements of the specification. In the latter event the contractor shall take such steps or make such changes to the design or proposal as may be necessary to meet the Engineer’s requirements and to obtain his approval…” (a) that the design or proposal has the approval of the Engineer, or (b) in what respects in the opinion of the Engineer the design or proposal fails to meet the requirements of the specification. In the latter event the contractor shall take such steps or make such changes to the design or proposal as may be necessary to meet the Engineer’s requirements and to obtain his approval…”
“(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… (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 claim within sub-section (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 reinforce that claim… (4) Rules of court may provide for allowing a new claim to which sub-section (3) above applies to be made as they are mentioned, but only if the condition specified in sub-section (5) below are satisfied and subject to any further restrictions the rules may impose. (5) The conditions referred to in sub-section (4) above are the following: (a) In the case 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) the addition or substitution of a new cause of action; or (b) the addition or substitution of a new party… (a) In the case 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 cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person”
“Where there are found in completed buildings serious defects of the type here under review the facts relating to design, execution and superintendence are inextricably entangled until such time as the court succeeds in elucidating the position through evidence. The design has inevitably to be closely examined even if the only claim relates to superintendence, and all the more so if the designs are, as is further alleged here, experimental or such as need amplification in the construction progresses. The architect is under a continuing duty to check that his design will work in practice and to correct any errors as they emerge. It savours of the ridiculous for the architect to be able to say, as it was here suggested to him that he could say: ‘true, my design was faulty, but, of course, I saw to it that the contractors followed it faithfully’ and be enabled on that ground to succeed in the action. The same, or substantially the same set of facts, falls to be investigated in relation to the design claim and the superintendence claim. The plans and specifications and ancillary documents are relevant to the superintendence claim as well as to the designer claim: hence the inability of the defendant to allege prejudice with regard to the preparation of his defence if this appeal is allowed. Accordingly, the “new cause of action” falls within the ambit of RSC Ord. 20 r. 5(5), and it is one which the court has jurisdiction to permit to be pursued”
“It is no objection to amendment under Ord. 20, r. (5) that some of the facts out of which the new cause of action arises are peculiar to it, and some of the facts out of which the old cause of action arises are peculiar to it. It is enough if the overlap is so great that the new cause of action can fairly be said to arise out of substantially the same facts as the old cause of action. For the reasons given by Sachs L.J. I think that this is the case here and that there was power to allow the amendment in question under Ord. 20, r. 5(5)”
“In the present case, if one remembers what a cause of action is (for instance, to refer back to the dictum in Letang), if one looks to the size of this particular building, to its complexities, to other matters of degree, to the statement of claim before the proposed re-amendment, to the attitude of the appellants’ solicitors in the correspondence at the material time, to which I have referred, and avoids what I think are unnecessary subtleties, I feel bound to agree with the learned judge where he concluded, having referred to the cases on what is a cause of action, the statement in both its original and amended form related only to the air conditioning. I think that its effect was to narrow the causes of action so that they became confined to breaches of contract concerned with air conditioning and negligence resulting in damages to the air conditioning. In the light of the definitions of a cause of action already referred to, I do not think one can look only to the duty on a party, but one must also look to the nature and extent of the breach relied upon, as well as to the nature and extent of the damage complained of n deciding whether, as a matter of degree, a new cause of action is sought to be relied upon. The mere fact that one is considering what are, as it is said, after all only different defects to the same building does not necessarily mean in any way that they are constituents of one and the same cause of action. Thus I conclude that whether there is a new cause of action in any circumstances is a mixed question of law and fact. I am satisfied that the learned judge correctly directed himself on the law on this point, and not only am I unable to say that he applied that law incorrectly to the facts of the case, I think positively that he applied that law correctly to the facts of the case. Thus I must consider whether the contended for new cause of action arises out of the same, or substantially the same, set of facts as is provided for by Order 20 r. 5(5). Although exception was taken to the proposition in the course of the argument, I am still of the view that in the context of this particular case the position on this aspect is a fortiori the position on the first aspect, to which I have referred. Again, it must be a question of degree. The learned judge decided that there was insufficient overlap, relying upon a dictum from the judgment of Cross L.J. in Brickfield’s case, to which I have already referred. I respectfully agree with the conclusion to which the learned judge came that there was insufficient overlap. Thus the learned judge (I think correctly) held that he had no jurisdiction to allow the sought for re-amendment of the statement of claim in this case”
“Whether or not the new cause of action arises out of substantially the same facts as that already pleaded is substantially a matter of impression”
“In my view where an amendment pleads a duty which differs from that pleaded in the original statement of claim it will, or certainly will usually, raise a new cause of action. If there is no allegation of a different duty but different fats are alleged to constitute a breach of the duty it is more difficult to decide whether a new cause of action is pleaded. Several of the cases to which we were referred during the course of argument seem to me to come into this caregory, namely Brickfield Properties Limited v Newton[1971] 1 WLR 862 ; Steamship Mutual v Trollope & Colls (referred to above) and Hamlin v Edward Evans (1996) PNLR 398”
“I turn therefore to consider whether the facts pleaded in the proposed amendment are “the same…or substantially the same” as those originally pleaded in the unamended statement of claim. In Welsh Development Agency v Redpath Dorman Long Ltd[1994] 1 WLR 1409 a division of this court of which I was a member said that “whether or not the new cause of action arises out of substantially the same facts as that already pleaded is substantially a matter of impression”