What is the relationship between an application to amend a claim after the expiry of the limitation period and the case-law on what is necessary to “bring” a claim for the purposes of the Limitation Act 1980?
The recent TCC decision in Glenluce Fishing Co Ltd v Watermota Ltd provides clarity that a claim issued in time will not subsequently become time-barred if an amendment to the claim form, after expiry of the limitation period, requires that a higher court issue fee be paid.
Courts’ “hard edged” approach
The Court of Appeal has repeatedly held (for example, see St Helens Metropolitan Borough Council v Barnes) that, provided a claimant delivers its claim to the court office for issue in time, accompanied by the correct fee, it will still be “brought” in time even if the claim form is not actually issued by the court until after the expiry of the limitation period.
At first instance, courts have adopted a “hard edged” approach, namely that a claimant who fails to do everything that is in its power to set the wheels of justice in motion (including paying the correct court fee) cannot take advantage of this principle. So, in Page v Hewetts Solicitors and Lewis v Ward Hadaway, claimants who had not proffered the correct fee (whether through inadvertence or cynicism) found their claims time-barred even once the correct fee was (belatedly) paid. In Bhatti v Asghar, it was held that if it was subsequently discovered that an incorrect fee had been paid, that might result in the claim not having been “brought” even if it had prima facie been issued in time.
Glenluce Fishing Co Ltd v Watermota Ltd
In Glenluce, the claimant sought permission for an amendment to the claim form to increase the value of the claim after the expiry of the limitation period. The claim had been issued in time for a lower amount, and the court fee paid on issue had been calculated based on that lower amount.
The defendant opposed the amendment, relying on Page v Hewetts and Lewis v Ward Hadaway. Its argument was that, because the claimant could have, with due diligence, issued its claim for the higher amount from the outset (and thus have paid a higher fee), it had not done all it could to set the wheels of justice in motion. The claim in its proposed amended form was therefore time-barred.
Deputy High Court judge Roger ter Haar QC rejected this argument. He held that Page v Hewetts, Lewis v Ward Hadaway and Bhatti v Asghar significantly extended the practical ambit of the Court of Appeal decisions on which they were based. They should not be further extended to govern the question of the amendment of a claim which was originally issued in time. That should be determined by applying CPR 17.4, which deals with amendments to statements of case. The proposed amendment was permitted as it created no prejudice to the defendant.
Points flowing from the judgment
There are three practical points that flow from the judgment:
- The court recognised that the first-instance cases adopted a “hard edged” approach to the question of whether a claimant who fails to proffer the correct court fee when delivering its claim to court for issue might thereby have failed to “bring” its claim in time for limitation purposes. The court also raised the possibility that the hard edges of the approach might be softened in future decisions.
- This hard edged approach should not be extended to an application to amend a claim that had originally been issued in time.
- Such an application will continue to be decided by reference to the ordinary case management powers in the CPR, most obviously rule 17.4.