King's / Queen's Bench Division of the High Court

[2025] EWHC 1680 (KB)

Fecha: 03-Jul-2025

The law and practice relating to amendment of pleadings

The law and practice relating to amendment of pleadings

34.

Amendment inside limitation, CPR r.17.3. The power to grant permission to amend a served pleading to add a new cause of action within limitation is set out in CPR r.17.1(2) and r.17.3. It can be done with consent or with permission, but not without.

35.

The procedure, practice and form for an amendment within limitation includes requirements that:

(1)

the application should formally be made; and

(2)

the amendments should be provided in writing and be clear (see Swain-Mason v Mills and Reeve [2011] EWCA Civ. 14);

(2)

the amendments should not be self-contradictory or not obviously at odds with contemporaneous documents, (see the judgment of Nicklin J in Amersi v Leslie [2023] EWHC 1368, at para. 140); and

(3)

the amendments should not be prolix (see Hague Plant v Hague [2012] EWCA Civ 1609).

36.

The substance of the decision on permission (within limitation) is multifactorial. When exercising the discretion to permit or refuse amendments the authorities set out that the Judge should consider, the procedural requirements summarised above and, inter alia, the following three matters:

(i)

The factors in CPR r.1.1. In relation to the overriding objective, the general principles set out in the judgment of Peter Gibson LJ in Cobbold v. Greenwich London Borough Council (unreported CA, 9 August 1999) are of assistance:

"The overriding objective of the CPR is that the court should deal with cases justly. That includes, so far as practicable, ensuring that each case is dealt with not only expeditiously but fairly. Amendments in general ought to be allowed so that the real dispute between the parties can be adjudicated upon, provided that any prejudice to the other party caused by the amendment can be compensated for in costs and the public interest in the administration of justice is not significantly harmed."

(ii)

The need to show some prospect of success (see Kawasaki v Kemball [2021] EWCA Civ. 33 at para 18).

(iii)

The lateness of the application. The Court should consider whether it was made soon after pleadings closed, long before trial or at trial. In Quah Su-Ling v Goldman Sachs International [2015] EWHC Comm 759, Carr J at para 38 ruled that the following factors were to be taken into account in late applications:

“38.
Drawing these authorities together, the relevant principles can be stated simply as follows:
a)
whether to allow an amendment is a matter for the discretion of the court. In exercising that discretion, the overriding objective is of the greatest importance. Applications always involve the court striking a balance between injustice to the applicant if the amendment is refused, and injustice to the opposing party and other litigants in general, if the amendment is permitted;
b)
where a very late application to amend is made the correct approach is not that the amendments ought, in general, to be allowed so that the real dispute between the parties can be adjudicated upon. Rather, a heavy burden lies on a party seeking a very late amendment to show the strength of the new case and why justice to him, his opponent and other court users requires him to be able to pursue it. The risk to a trial date may mean that the lateness of the application to amend will of itself cause the balance to be loaded heavily against the grant of permission;
c)
a very late amendment is one made when the trial date has been fixed and where permitting the amendments would cause the trial date to be lost. Parties and the court have a legitimate expectation that trial fixtures will be kept;
d)
lateness is not an absolute, but a relative concept. It depends on a review of the nature of the proposed amendment, the quality of the explanation for its timing, and a fair appreciation of the consequences in terms of work wasted and consequential work to be done;
e)
gone are the days when it was sufficient for the amending party to argue that no prejudice had been suffered, save as to costs. In the modern era it is more readily recognised that the payment of costs may not be adequate compensation;
f)
it is incumbent on a party seeking the indulgence of the court to be allowed to raise a late claim to provide a good explanation for the delay;
g)
a much stricter view is taken nowadays of non-compliance with the CPR and directions of the Court. The achievement of justice means something different now. Parties can no longer expect indulgence if they fail to comply with their procedural obligations because those obligations not only serve the purpose of ensuring that they conduct the litigation proportionately in order to ensure their own costs are kept within proportionate bounds but also the wider public interest of ensuring that other litigants can obtain justice efficiently and proportionately, and that the courts enable them to do so.”

37.

Amendment outside limitation, CPR r.17.4. When making the decision on an amendment application for a new claim made outside limitation, the rules are different. CPR r.17.4 applies along with the Limitation Act 1980, S.35, which provides that:

“35 New claims in pending actions: rules of court.
(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)
…
(b)
in the case of any other new claim, on the same date as the original action.
…
(3)
Except as provided by section 33 of this Act or by rules of court, neither the High Court nor [the county] court shall allow a new claim within subsection (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 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; and
(b)
in the case of a claim involving a new party, if the addition or substitution of the new party is necessary for the determination of the original action.”

38.

CPR r.17.4(2) provides that:

“(2)
The court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as are already in issue on as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings.”

39.

The discretion is apparent from the word “may”. The issue in the appeal before me concerned whether the new claim arose out of the same facts or substantially the same facts. At the hearing the Appellant abandoned the assertion that there was no new claim.

40.

The case law gives guidance on what constitutes a “new claim” and a “new cause of action” and what the phrase “substantially the same facts” means. “New claim” was explained in Aldi v Holmes [2003] EWCA Civ. 1882, in which Dyson LJ ruled thus:

“The first issue
The meaning of a “new claim” within the definition of s.35(2) of the Act has been considered by this court on a number of occasions. Perhaps it is sufficient to refer only to what was said by Auld L.J. in Lloyds Bank plc v Rogers [1999] 38 E.G. 83. At p.85F he said:
“It is important to note that what makes a ‘new claim’ as defined in s.35(2) is not the newness of the claim according to the type or quantum of remedy sought, but the newness of the cause of action that it involves. The formula employed in s.35(2)(a) and (5) is ‘a claim involving . . . the addition or substitution of a new cause of action’. And Ord.20 r.5(5) refers not to a claim but to ‘[a]n amendment the effect of which is to add or substitute “a new cause of action”’. Diplock L.J.’s widely accepted definition of a cause of action in Letang v Cooper [1965] 1 Q.B. 232, CA, at pp.242–3, as ‘simply a factual situation the existence of which entitles one party to obtain from the court a remedy against another person’, as distinct from ‘a form of action . . . used as a convenient and succinct description of a particular category of factual situation’, is of importance. It makes plain that a claim and a cause of action are not the same thing. It follows, as Mr Croally argued, that an originally pleaded ‘factual situation’ may disclose more than one cause of action, although one of them may not be individually categorised as such or the subject of a claim for a separate remedy. However, as Mr Browne- Wilkinson submitted, it does not follow that a claim so categorising it and/or seeking a remedy for it made for the first time by amendment is the addition of a new cause of action so as to render it a new claim. That the draftsmen of s.35 and Ord.20 r.5 had the distinction in mind is underlined by their respective provision for new claims by reference to substituted new causes of action, as well as additional new causes of action. The remedy claimed—‘any claim’—may or may not be the same; what makes the claim ‘a new claim’ is the newness of the substituted cause of action. Thus, a claim for damages is a new claim, even if in the same amount as originally claimed, if the Claimant seeks, by amendment, to justify it on a different factual basis from that originally pleaded. But it is not, even if made for the first time, if it does not involve the addition or substitution of an allegation of new facts constituting such a new cause of action.””

41.

In Mulalley v Martlet Homes [2022] EWCA Civ. 32, Coulson, Baker LLJ and Lady Justice Andrews ruled on the term “new cause of action” as follows at paras. 40-44:

“… A New Cause of Action
40.
A cause of action is, in the classic phrase, "…a factual situation the existence of which entitles one person to obtain from the Court a remedy against another person…": Letang v Cooper [1965] 1 QB 232 at 242. In order to ascertain whether the opposed amendments amount to a new cause of action, the court has to compare the essential allegations which are in issue on the original pleadings with those proposed by way of amendment.
41.
The best-known authority in the last decade about what constitutes a new cause of action for these purposes is Co-Operative Group Limited v Birse Developments Limited & Anr. [2013] EWCA Civ 474; [2013] BLR 383. In that case, the original claim made by the building owners concerned specific defects in the floor slabs of two warehouses. The complaints were about the thickness of the floor slabs in places, the absence of sawn joints and a deficient jointing system. The allegations were in respect of the need to carry out localised repair works, valued at around £381,000.
42.
The opposed amendments involved a complaint about the absence of steel fibre within the floor slabs which, it was said, would lead to damage in the future if the originally intended racking leg load was deployed. This was a systemic failure, said to give rise to the need for the complete replacement of both floor slabs at a cost of £2.5m.
43.
The judge at first instance found that the amendments did not involve a new cause of action although, rather unusually, he went on to find that, if they did amount to a new cause of action, they did not arise out of the same or substantially the same facts as the original claim. The Defendant, Birse, appealed the judge's conclusion that the claim in respect of the missing steel fibre was not a new cause of action.
44.
The law was summarised by Tomlinson LJ at [20] and [21] as follows:
"20.
In the quest for what constitutes a "new" cause of action, i.e. a cause of action different from that already asserted, it is the essential factual allegations upon which the original and the proposed new or different claims are reliant which must be compared. Thus "the pleading of unnecessary allegations or the addition of further instances or better particulars do not amount to a distinct cause of action" – see Paragon Finance v Thakerar [1999] 1 All ER 400 at 405 per Millett LJ. "So in identifying a new cause of action the bare minimum of essential facts abstracted from the original pleading is to be compared with the minimum as it would be constituted under the amended pleading " - see per Robert Walker LJ in Smith v Henniker-Major [2003] Ch 182 at 210.
21.
The court is therefore concerned with the comparison of "the essential factual elements in a cause of action already pleaded with the essential factual elements in the cause of action as proposed" – see per David Richards J in HMRC v Begum [2010] EWHC 1799 (Ch) at paragraph 32 . "A change in the essential features of the factual basis (rather than, say, giving further particulars of existing allegations) will introduce a new cause of action" – ibid, paragraph 30."”

42.

Guidance on what “arising from the same or substantially the same facts” means was also given by Coulson LJ in the Court of Appeal in Mulalley at paras. 49-50 as follows:

“The Same or Substantially the Same Facts
49.
This topic was addressed more recently by the Court of Appeal in Ballinger v Mercer Limited & Anr [2014] EWCA Civ 996; [2014] 1 WLR 3597, in which Tomlinson LJ referred to a number of subsequent observations about the applicable test:
"34.
Helpful guidance as to the proper approach to the resolution of this question was given by Colman J in BP plc v Aon Ltd [2006] 1 Lloyd's Rep 549 where, at page 558, he said this:-
"52.
At first instance in Goode v. Martin [2001] 3 All ER 562 I considered the purpose of Section 35(5) in the following passage:
"Whether one factual basis is 'substantially the same' as another factual basis obviously involves a value judgment, but the relevant criteria must clearly have regard to the main purpose for which the qualification to the power to give permission to amend is introduced. That purpose is to avoid placing a Defendant in the position where if the amendment is allowed he will be obliged after expiration of the limitation period to investigate facts and obtain evidence of matters which are completely outside the ambit of, and unrelated to those facts which he could reasonably be assumed to have investigated for the purpose of defending the unamended claim."
53.
In Lloyd's Bank plc v. Rogers [1997] TLR 154 Hobhouse LJ. said of Section 35 :
"The policy of the section was that, if factual issues were in any event going to be litigated between the parties, the parties should be able to rely upon any cause of action which substantially arises from those facts."
54.
The substance of the purpose of the exception in subsection (5) is thus based on the assumption that the party against whom the proposed amendment is directed will not be prejudiced because that party will, for the purposes of the pre-existing matters [in] issue, already have had to investigate the same or substantially the same facts."
35.
In the Welsh Development Agency case Glidewell LJ said, in an often quoted passage at page 1418, that 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.
36.
Less well-known perhaps is the cautionary note added by Millett LJ in Paragon Finance , where at page 418 he said, after citing the passage from Glidewell LJ to which I have just referred:-
"In borderline cases this may be so. In others it must be a question of analysis."
37.
I would also point out, as did Briggs LJ in the course of the argument, that "the same or substantially the same" is not synonymous with "similar". The word 'similar' is often used in this context, but it should not be regarded as anything more than a convenient shorthand. It may serve to divert attention from the appropriate enquiry."
50.
I am not sure, with respect, how far these various observations really take us, although it is important to stress the point at [37] of Tomlinson LJ's judgment, namely that "substantially the same" is not synonymous with "similar". Brickfield v Newton does not appear to have been cited in Ballinger , which is a potentially important omission. Furthermore, in the most recent case which touches on this topic, Libyan Investment Authority v King [2020] EWCA Civ 1690; [2021] 1 WLR 2659 , Nugee LJ said at [49]-[50] that it was neither necessary nor helpful to seek to resolve the differences between some of these observations since they were not and could not be a substitute for applying the wording of s.35 of the Limitation Act 1980 or CPR 17.4(2).”

43.

I extract from this guidance that “substantially the same facts” means that some new facts are expected in a new cause of action, but if the facts are substantially the same as those within the old causes of action, the power to give permission is triggered. If the new cause of action requires the gathering of facts which are completely different, then the power is not triggered. If most of the facts are the same but also some are different then a value judgment is needed. The prejudice to the other party in having to address the new facts after the end of the limitation period is relevant to whether the claim arose out of substantially the same facts.