Amendments To Claim Form After Expiry Of Limitation Period In Wright V McCormack Case

“60. The first ten publications were published between 29 March 2019 and 16 April 2019. The Claim Form was served on 17 April 2019 listing those ten publications and claiming damages for libel and other relief. The [Particulars of Claim (POC)] containing Publications 1 – 10 were served on 2 May 2019.

61. Publication 11 took place on 19 June 2019. On 8 August 2019, the Defendant served his Defence. Publications 12 to 15 then took place between 22 August and 29 September 2019. The Claimant’s Reply was served on 11 October 2019. Publication 16 took place on 18 October 2019.

62. Draft [Amended POC (APOC)] was circulated by the Claimant’s solicitors on 19 November 2019 to add Publications 11 to 16. The Defendant consented to those amendments on 19 December 2019, and the APOC was filed and served the same day pursuant to CPR r 17.1(2)(a).

63. In March 2020 there was a CCMC before Master Davison and extensive directions were given. On 18 March 2020, the Defendant served his Amended Defence, which as I have said was done with consent, in which he pleaded to Publications 11 – 16.

64. In his Eleventh Witness Statement Mr. Cohen explains that when the draft APOC were circulated by his firm in late 2019, through an ‘administrative oversight’, his firm did not also prepare or circulate a draft amended Claim Form to include Publications 11 to 16. This error was not spotted by the Claimant’s legal team, including during preparations for the March 2020 CCMC, or by the Defendant when he was preparing his draft Defence in respect of all 16 publications.

65. Hence, by early 2020 the position was that there was an APOC, an Amended Defence, and an Amended Reply (dated 22 April 2020) dealing with all 16 publications, each of which had been consented to by the other party, but a Claim Form which only contained Publications 1 – 10.”

“77.     Applications to amend – and whether they are made ‘in time’ for the purposes of limitation – are not judged as at the date that the application is issued, but the date the application is determined…”

“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) in the case of a new claim made in or by way of third party proceedings, on the date on which those proceedings were commenced; and

(b) in the case of any other new claim, on the same date as the original action.

(2) In this section a new claim means any claim by way of set-off or counterclaim, and any claim involving either –

(a) the addition or substitution of a new cause of action; …”

“88.     Thus, in the phrase ‘any claim involving … a new cause of action’ in s.35(2)(a), ‘claim’ refers to the remedy sought, and ’cause of action’ refers to the factual basis for the claim…”

“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 a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings.”

“… only if the new claim arises out of the same facts or substantially the same facts as are already in issue on a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings.” (Emphasis added)

“109. The key part of Toulson LJ’s judgment which also covers the present case, in my respectful judgment, is this from [26]:

“In my view the just approach is to look at the totality of the documents served. These documents together set out the claimant’s pleaded case. There was an obvious mismatch, but in asking whether the proposed amendment was, in truth, an amendment to raise a new cause of action or merely to clarify an internal inconsistency in the pleaded case is, it is proper to look at the pleaded case as a whole. When one does so, it is clear, in my judgment, that what was sought to be done by the subsequent application to amend was not, in substance, to raise any new claim at all, but merely to correct an obvious formal error.”

“114. If I do not allow the amendments, it seems to me that there would be prejudice to the Claimant because he would be prevented from litigating his full case even though the Defendant is ready, able, and willing to meet it. If I refused the amendments, and they were not permissible new claims under CPR r 17.4 (as the Defendant argues), then I anticipate that the Defendant would apply to strike out the relevant parts of the APOC and Amended Reply under CPR r 3.4(2) on the grounds of irrelevance. It would no doubt be said that those parts of the statements of the case were now redundant because they refer to publications not included on the Claim Form. Such an application would likely have to be allowed. But that would be an absurd result in all the circumstances of the case including, in particular, the Defendant’s various consents at earlier stages of the litigation and the absence of any prejudice to him. It would be, to quote Laws LJ in Evans, [35], a ‘stark surrender of substance to form’, and would be inconsistent with the overriding objective of doing justice.

115. For these reasons, pursuant to CPR r 17.1(2)(b) and CPR r 3.10, I allow the application to amend the Claim Form to add Publications 12 to 16 to the pleaded claim for libel.”