Hancock Shipping Limited v Kowaski Heavy Industries: CA 1992

Leave was sought by the plaintiffs to amend their points of claim in circumstances where it was common ground that the amendments would introduce new causes of action which, if brought in new proceedings, would have been statute-barred. Held Jurisdiction to reject a second claim as arising from the same or similar facts as a previous case arises if there is a sufficient overlap between the facts supporting the original claim and those supporting the new claim. The loss of an accrued defence of limitation is a relevant consideration when considering a requested amendment to the pleadings and there is a burden of persuasion on the applicant to satisfy the court of the justice of allowing an amendment having that effect.
Staughton LJ said: ‘In my judgment it is not helpful to speak of the burden of proof, but rather of the burden of persuasion. If the court concludes that it cannot decide whether or not it is just to allow the amendment, the party applying for leave must fail. … But the party making the application cannot be expected to adduce evidence on all points which might conceivably affect the justice of the case.’

Judges:

Staughton LJ, Kerr LJ

Citations:

[1992] 1 WLR 1025

Cited by:

CitedTabarrok v E D C Lord and Co (A Firm) CA 14-Feb-1997
The appellant wanted to open a pizza restaurant. He and his partners acquired a company for the purpose, which was to take a lease of premises. They sought advice from the defendants who, they said, failed to advise them of the need to be aware of . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Limitation

Updated: 15 May 2022; Ref: scu.271022