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An application to amend pleadings outside the limitation period was allowed as it satisfied the three stage test that should be applied in these circumstances.
16 October 2013
High Court, Queen's Bench Division
Numerous cruise ship passengers claimed damages from the defendant operator for illness they alleged was caused by an outbreak of bacterial gastroenteritis on the ship. The claims were brought within the relevant two year limitation period following Art 3 of the Athens Convention 1974. The claimants then sought to amend their pleadings (outside the two year time limit) to allege, in the alternative, that the infections were caused by a virus rather than by bacterial infection. The application was allowed and the defendant appealed.
On appeal, the court highlighted that, taken together, s 35 of the Limitation Act 1980 and CPR 17.4 may allow an amendment which introduces a new cause of action (thereby bringing a "new claim") but only where the new claim arises out of the same or substantially the same facts as the existing claim. Following Goode v Martin  EWCA Civ 1899, to ensure compliance with Article 6 of the European Convention on Human Rights, these facts must be "already in issue" on an existing claim.
The court found they were therefore required to following a three stage analytical process. Firstly, would the effect of allowing the amendment be to add or substitute a new claim? If yes, secondly does the amendment arise out of the same or substantially the same facts as are already in issue on a claim? If yes, thirdly on applying the overriding objective, should the court exercise its discretion and allow the amendment?
On the facts, the court found that the amendment did introduce a new cause of action as there was a genuine and substantive difference between the means of communication of bacteria and norovirus and also between how the risk of infection of each should be mitigated.
Secondly, the new claim did arise out of substantially the same facts as were already in issue. The Defence specifically alleged that the claimants had contracted norovirus and also alleged that the defendant complied with the relevant outbreak procedures for dealing with norovirus. The court was satisfied that the new cause of action did arise out of the same facts as were already pleaded in the Particulars of Claim and Defence taken as a whole.
Finally, the court found on a proper balance of all the factors, it was satisfied that it should exercise discretion in allowing the amendment.
The court appears to have placed some weight to exercise its discretion at stage 3 on the fact that the Defence already dealt with this cause of action and addressed the proper standards to be applied, thereby allowing the court to deal with the case both justly and proportionately as required by the overriding objective when allowing the amendment. However, it is worth noting that, given the new more stringent rules to be applied in line with CPR 3.9, the court will exercise its discretion in appropriate circumstances where deadlines are not complied with.