A new claim was not deemed to have been made until the pleading was actually amended for limitation purposes, and should not be allowed after the limitation period had expired. The date of the application for leave to amend was not at issue. The court will normally require the claimant to bring fresh proceedings, in which limitation issues can be tried. The judge’s decision is a matter of impression.
Whether or not a new cause of action arises out of substantially the same facts as those already pleaded is substantially a matter of impression.
Glidewell LJ said: ‘Section 35 of the Act of 1980 contains the following provisions which are relevant to this appeal:
‘(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 . . (b) . . on the same date as the original action. (2) In this section a new claim means. . (a) the addition or substitution of a new cause of action; . . (3) Except as provided by. . Rules of court, neither the High Court nor any county court shall allow a new claim within subsection (1)(b) above . . 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;’
Glidewell LJ continued: ‘The rules of court referred to in section 35(4) are to be found in RSC, Ord.20,r.5. So far as material this provides:
‘(1) Subject to. . the following provisions of this rule, the court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct. (2) Where an application to the court for leave to make the amendment mentioned in paragraph . . (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it thinks it just to do so . . (5) An amendment may be allowed under paragraph (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment.’
The effect of these provisions taken together, in relation to this appeal, is as follows. (a) A new cause of action is a ‘new claim’ within section 35. The court may not allow a new claim to be made after the expiry of a limitation period which would affect a new action to enforce such a claim unless the new cause arises out of the same or substantially the same facts as those already in issue in the action. (b) If the court does allow a new claim to be made by amendment, it shall be deemed to have been commenced when the writ in the original action was issued. (c) If, when the court is considering whether to allow an amendment, the limitation period for a new action has not expired, the claim is not caught by section 35(3). Ord.20,r.5(1) then permits the court to allow the amendment without any particular requirement being satisfied. (d) However, if the court has power to allow an amendment, whether this be because the period of limitation for a new action has not expired or because the claim is based on substantially the same facts as those already in issue in the action, the court retains a discretion whether or not to allow the amendment.’
Brandon LJ, Glidewell LJ
Gazette 01-Jun-1994, Ind Summary 02-May-1994, Times 04-Apr-1994,  1 WLR 1409,  4 All ER 10
Limitation Act 1980 35(3)
England and Wales
Cited – Lloyds Bank Plc v Wiktor Jozef Wojcik (Male) Alodia Krystyna Wojcik (Female) CA 19-Dec-1997
The defendants appealed a judgment giving the claimants possession of their property under a charge. The first defendant had been refused leave to amend his defence to argue a limitation point. The second defendant claimed she had been inveigled . .
Distinguished – Busby v Cooper; Busby v Abbey National plc; Busby v Lumby CA 2-Apr-1996
The claimant sought damages after having bought a house after receiving an allegedly negligent report on the concrete. She had asked to be allowed to add a third party (the local authority who had passed the building) as a defendant, but the request . .
Cited – Rhone-Poulenc Rorer International Holdings Inc and Another v Yeda Research and Development Co Ltd ChD 16-Feb-2006
The patent application had been presented to the European Patent Office and granted only after 13 years. The claimant now appealed refusal to allow amendment of its claim to allow a claim in its sole name. The defendant argued that it was out of . .
Cited – Berezovsky v Abramovich ComC 22-May-2008
Applications were made to amend pleadings and for consequential orders. The claimant sought damages of $4.3 billion alleging breach of trust. The claimant sought to add claims which the defendant said were out of time.
Held: The proposed . .
Cited – Tabarrok 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 . .
Cited – Roberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .
Cited – Mortgage Express v Abensons Solicitors (A Firm) ChD 20-Apr-2012
The claimant lender sought damages against the defendant solicitors alleging negligence and breach of fiduciary duty by them in acting for them on mortgage advances. The defendants now argued that the allowance of an amendment to add the allegation . .
Cited – S v Suren and Another QBD 10-Sep-2004
These lists may be incomplete.
Updated: 10 February 2021; Ref: scu.90379