Welsh Development Agency v Redpath Dorman Long Ltd: CA 4 Apr 1994

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, [1994] 1 WLR 1409, [1994] 4 All ER 10
Limitation Act 1980 35(3)
England and Wales
Cited by:
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CitedS v Suren and Another QBD 10-Sep-2004
. .

These lists may be incomplete.
Updated: 10 February 2021; Ref: scu.90379