Court of Appeal: court's options in amendment applications raising limitation issues (Chandra v Brooke North)

In Chandra and another v Brooke North (a firm) and another; BPC Hotels Ltd v Brooke North (a firm) and another [2013] All ER (D) 88 (Dec), the Court of Appeal allowed an appeal against a permission to amend decision. The proposed amendments sought to introduce a new cause of action after the expiry of the limitation period. In doing so, the Court of Appeal considered sections 35(3) and 14A of the Limitation Act 1980, as well as the following authorities: Welsh Development Agency (WDA), Steamship Mutual and TetraPak. This judgment is, however, of particular interest in relation to its practical guidance to practitioners on the options available to the court on an amendment application which raises limitation issues.

The Court of Appeal held no permission to amend ought to have been granted in this case where the proposed amendments sought to introduce a new cause of action after the expiry of the limitation period. The court also found the judge had been wrong to embark on a trial of the limitation issue. In doing so, it gave guidance on the two options available to a court when determining an application to amend where limitation issues arise, namely:

  • deal with the matter as a conventional amendment application (applying WDASteamship Mutual and TetraPak).

Note: the proposed amendments should be considered by reference to the 'original' statement of case rather than the claim form as the statement of claim should be narrower in its scope, or

  • direct that the issue of limitation be determined as a preliminary issue. This was not the course of action chosen here and was the reason the Court of Appeal found the first instance judge had erred in embarking on a trial of the limitation issue

Practical Tip

If the claimant applies for permission to amend and there is likely to be an objection on the basis the new claim it seeks to introduce is statute barred, it should take steps to 'protect itself'. The most obvious step would be to issue new proceedings in respect of the claim. This would 'stop the clock' on any limitation issues and mean the claimant is more likely to be able to pursue its 'new claim' even if permission to amend to include that new claim is refused.

Note: For more information on various issues raised in this application, subscribers to Lexis®PSL can see: Amending a statement of case and Limitation—overview.

Court details

Court: Court of Appeal, Civil Division

Judges: Lord Justice Jackson (leading judgment) with Lord Justices Laws and McFarlane (in agreement)

Date of judgment: 5 December 2013

Note: subscribers to Lexis®PSL can access our detailed analysis of the lower court's decision under appeal in the instant application by clicking this link: CPR 23.10 and applications to revoke or setting aside an order made without a hearing (Chandra v Brooke North).

This article was first published on Lexis®PSL Dispute Resolution on 11 December 2013. Click here for a free 24 trial of Lexis®PSL.

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