EAT PRACTICE AND PROCEDURE – Case management
PRACTICE AND PROCEDURE – Amendment
PRACTICE AND PROCEDURE – Time limits
Neither the procedural common law doctrine of ‘relation back’ (now defunct – see Beecham Group plc v Norton Healthcare Ltd  FSR 81, Liff v Peasley  1 WLR 781 and Ketteman v Hansel Properties Ltd  AC 189) nor section 35(1) of the Limitation Act 1980 apply directly to amendments to pleadings in the ET, which introduce new claims or causes of action. These take effect for the purposes of limitation at the time permission to amend is given and do not ‘relate back’ to the time when the original proceedings were commenced and in so far as the reasoning in the cases of Rawson v Doncaster NHS Primary Care Trust UKEAT/0022/08, Newsquest (Herald and Times) Ltd v Keeping UKEATS/ 0051/09 and Amey Services Ltd and Another v Aldridge and Others UKEATS/0007/16 is based on the ‘relation back’ doctrine, this is inconsistent with statements in Potter and Others v North Cumbria Acute Hospitals NHS Trust and Others (No 2) UKEAT/0385/08,  IRLR 900 and Prest v Mouchel Business Services Ltd UKEAT/0604/10,  ICR 1345. Alternatively, Rawson, Newsquest and Amey Services were wrongly decided (on that point). On either basis they would not be followed (see Lock and Another v British Gas Trading Ltd (No 2) UKEAT/0189/15,  IRLR 316).
The refusal of permission to amend in the instant case turned on the doctrine of ‘relation back’ and this was a critical error of law and not simply one of a number of factors considered in ‘the generous ambit within which reasonable disagreement is possible’ (Gayle v Sandwell and West Birmingham Hospitals NHS Trust  IRLR 810, Kuznetsov v Royal Bank of Scotland  EWCA Civ 43, Broughton v Kop Football (Cayman) Ltd and Others  EWCA Civ 1743, HRH Prince Abdulaziz Bin Mishal Bin Abdulaziz Al Saud v Apex Global Management Ltd and Another  UKSC 64,  1 WLR 4495, Bellenden (formerly Satterthwaite) v Satterthwaite  1 All ER 343 and CICB v Beck  EWCA Civ 619,  IRLR 740 considered).
The guidance given by Mummery J in Selkent Bus Co Ltd v Moore  ICR 836 and his use of the word ‘essential’ should not be taken in an absolutely literal sense and applied in a rigid and inflexible way so as to create an invariable and mandatory rule that all out of time issues must be decided before permission to amend can be considered. The judgments in both Transport and General Workers Union v Safeway Stores Ltd UKEAT/0092/07 and Abercrombie v AGA Rangemaster Ltd  ICR 209 emphasised that the discretion to permit amendment was not constrained necessarily by limitation.
The Opinion of the Inner House of the Court of Session in City of Edinburgh Council v Kaur  CSIH 32 should not be confined to granting an extension of time in ‘continuing act’ but should be applied as well to cases involving consideration of whether it would be ‘just and equitable’ to grant an extension of time. Whilst in some cases it may be possible without hearing evidence to conclude that no ‘prima facie’ case of a ‘continuing act’ or for an extension on ‘just and equitable’ grounds can arise from the pleadings, in many cases, often, but not necessarily confined to, discrimination cases, it will not be possible to reach such a conclusion without an evidential investigation and, as indicated in the Opinion in Kaur, sometimes it may be necessary to hear a significant amount of evidence and sometimes it may not be possible or sensible to deal with the matter at a Preliminary Hearing and decisions may need to be postponed until all the evidence has been heard.
In the instant case EJ Foxwell had refused permission to amend without hearing any evidence. His evaluation of the likelihood of any subsequent extension of time on the grounds that it was ‘just and equitable’ and the lack of resolution of the issue as to whether or not there was a ‘continuing act’ both amounted to errors of law and the case was remitted for re-consideration in the light of the above decision.
 UKEAT 0207 – 16 – 2211
England and Wales
Updated: 02 April 2022; Ref: scu.601916