Lloyds Bank Plc v Rogers (No.2)
| Jurisdiction | England & Wales |
| Judgment Date | 20 December 1997 |
| Date | 20 December 1997 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Before Lord Justice Simon Brown, Lord Justice Peter Gibson and Lord Justice Hobhouse
Practice - pleadings - amendment to allow time-barred libel claim
In an unusual case where a claimant could not be sure his bank had libelled him without first determining what the state of his account would have been had the bank not levied allegedly excessive charges, the court would allow him under section 35 of the Limitation Act 1980 to amend his pleadings in a breach of contract action so as to plead libel even though more than three years had passed since the cause of action arose.
The policy of section 35 of the 1980 Act 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 arose from those facts.
Any relevant prejudice to the party opposing the amendment could be taken into account in the exercise of the court's discretion whether to allow the amendment. There were no grounds in the instant case on which the court could interfere with the judge's exercise of his discretion.
The Court of Appeal so held dismissing an appeal by Lloyds Bank plc against Judge Overend, QC, who, sitting as a deputy judge of the High Court at Plymouth (The Times April 11, 1996) gave leave to the first defendant, Nicholas Rogers, to further amend his defence and counterclaim in an action brought against him and the second defendant, Linda Jane Rogers, in which the bank originally claimed £78,646.53 plus interest.
Mr David Eady, QC and Mr Thomas Keith for the bank; Mr Michael Tugendhat, QC and Mr Miles Croally for Mr Rogers.
LORD JUSTICE HOBHOUSE said the first defendant was a commercial photographer who had taken out a secured overdraft with the bank at what he thought was 4 per cent above the bank's base rate. Debit balances had built up and the bank on a number of occasions had dishonoured his cheques and refused direct debit instructions, seriously affecting his business and his ordinary life.
The defendant had taken up with the bank the size of the interest and bank charges on his account. The bank blamed the computer and gave him a £6,134.37 credit. At the same time the bank demanded immediate payment of £78,646.53, threatening otherwise to tell credit agencies he was a defaulting customer. Nine days later, the bank had issued a writ for the full sum plus...
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EH (A protected party, by her litigation friend, the Official Solicitor) v Dorset Healthcare University NHS Foundation Trust
...in determining whether a new claim meets this test is well-established. The approach is sufficiently summarised by Hobhouse LJ in Lloyd's Bank plc v. Rogers [1997] TLR 154: "The policy … was that, if factual issues were in any event going to be litigated between the parties, the parties sho......
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Seele Austria GmbH & Company v Tokio Marine Europe Insurance Ltd
...if the claimant seeks, by amendment, to justify it on a different factual basis from that originally pleaded”; per Auld, LJ, in Lloyds Bank Plc v Rogers [1999] 3 EGLR 83. Here the claim put forward in the Reply (which is not in the same amount as originally claimed) is sought to be justifie......
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Dr Craig Wright v Peter McCormack
...pleaded as a claim for damages in trespass to the person would not involve a new cause of action. In Lloyds Bank plc v Rogers [(No.2) [1999] 3 EGLR 83] Auld LJ noted 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......
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Maxter Catheters Sas and Another v Medicina Ltd
...additional remedies or causes of action arise out of the same facts and matters there is no "new claim" as explained by Auld LJ in Lloyds Bank PLC v Rogers (No.2) [1999] 38 EG 83 in the context of an analogous limitation 42 There being no new claim counsel's second argument on "first seised......