Madelene Nolan & Others v Tui Uk Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Turner |
| Judgment Date | 16 October 2013 |
| Neutral Citation | [2013] EWHC 3099 (QB) |
| Docket Number | Case No: QB/2013/0297 |
| Court | Queen's Bench Division |
| Date | 16 October 2013 |
[2013] EWHC 3099 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Turner
Case No: QB/2013/0297
Mr Bruce Silvester (instructed by Irwin Mitchell) for the Claimant's
Ms Laura Begley (instructed by Hill Dickinson) for the Defendant
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
On 2 May 2009 Mrs Nolan and her fellow passengers boarded "The Thomson Spirit", a cruise ship departing Ibiza and bound for Zeebrugge. The voyage proved, for many, to be an unhappy one. A considerable number of people on board the vessel fell ill and this spoiled their holidays and (to a lesser extent) the holidays of the other passengers. Mrs Nolan and 42 other passengers brought claims against the defendant, the operator of the ship, claiming compensation.
By Particulars of Claim dated 14 April 2011, the claimants alleged that the cause of the problem was an outbreak of bacterial gastroenteritis. They blamed allegedly poor standards of hygiene relating, in particular, to the way in which food and drink was prepared and served on board.
Subsequently, the claimants applied to amend their pleadings to allege, in the alternative, that the infections were caused (at least in some cases) by a virus rather than by bacterial infection.
The defendants opposed this application unsuccessfully before Mr Recorder Kent QC and now appeal his ruling to this court.
Matters not in dispute
The claims in relation to personal injury fall within the scope of Article 3 of the Athens Convention 1974 which provides for a limitation period of two years from the date of disembarkation. These claims were, therefore, brought in time. The application to amend was, in contrast, made after this limitation period had elapsed.
It is now further agreed that CPR Part 17.4, which relates to amendments after the expiry of a relevant limitation period, governs the approach to be taken by this court in adjudicating upon whether or not the amendments proposed in this case ought to be allowed. At first instance, the recorder approached his task on the basis that CPR Part 17.4 did not apply to cases falling within the scope of the 1974 Convention. His attention, however, had not been drawn to all the relevant authorities and the parties now invite me to proceed on the basis that he was in error on this point. For the purposes of this appeal, therefore, I accede to that invitation and make no further observations on this aspect of the case.
The Limitation Act 1980 and CPR 17.4
The jurisdiction of the court to entertain new claims raised in pending actions is derived from section 35 of the Limitation Act 1980 which provides, in so far as is material to this claim:
"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…
(b) in the case of any…new claim, on the same date as the original action.
(2) In this section a new claim means…any claim involving…
(a) the addition or substitution of a new cause of action…
(3) Except as provided by section 33 of this Act or by rules of court, neither the High Court nor any county court shall allow a new claim within subsection (1)(b) above…to be made in the course of any action after the expiry of any time limit under this Act which would affect a new action to enforce that claim.
(4) Rules of court may provide for allowing a new claim to which subsection (3) above applies to be made as there mentioned, but only if the conditions specified in subsection (5) below are satisfied, and subject to any further restrictions the rules may impose.
(5) The conditions referred to in subsection (4) above are the following—
(a) in the case of a claim involving a new cause of action, if the new cause of action arises out of the same facts or substantially the same facts as are already in issue on any claim previously made in the original action…"
CPR 17.4 provides, in so far as is material to this appeal:
"Amendments to statements of case after the end of a relevant limitation period
(1) This rule applies where —
(a) a party applies to amend his statement of case in one of the ways mentioned in this rule; and
(b) a period of limitation has expired…
(2) 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…"
The wording of CPR 17.4 must now be read subject to the observations of the Court of Appeal in Goode v Martin [2002] 1 WLR 1828. In that case it was held that, in order to render the rule compliant with Article 6 of the European Convention on Human Rights, it should be read as if it provided:
"The court may allow an amendment whose effect will be to add… a new claim, but 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."
Thus the court in this case is required to follow a three stage process which involves asking the following questions and proceeding to a conclusion as the answers dictate:
i) Would the effect of allowing the amendment be to add or substitute a new claim?
If no, then the proposed amendment falls outside the purview of CPR 17.4 and will be resolved by the application of the rules relating to amendments generally.
If yes, then the court must proceed to answer the second question.
ii) Does the new claim arise 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?
If no, the application must fail.
If yes, then the court must proceed to answer the third question.
iii) Applying the overriding objective, should the court exercise its discretion to allow the proposed amendment?
If yes, the application succeeds.
If no, the application fails.
A new claim?
There is a dispute between the parties as to whether or not the proposed amendments would, if allowed, have the effect of adding or substituting a new claim.
Under section 35(2)(a) of the 1980 Act a "new claim" is any claim involving the addition or substitution of a new cause of action.
In Letang v Cooper [1965] 1 QB 232, Diplock LJ held at p. 242:
"A cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person."
And at p. 244:
"The factual situation upon which the plaintiff's action was founded is set out in the statement of claim…That factual situation was the plaintiff's cause of action. It was the cause of action for which the plaintiff claimed damages in respect of the personal injuries which she sustained. That cause of action or factual situation falls within the description of the tort of negligence and an action founded on it, that is, brought to obtain the remedy to which the existence of that factual situation entitles the plaintiff, falls within the description of an action for negligence. The description "negligence" was in fact used by the plaintiff's pleader; but this cannot be decisive… It is true that that factual situation also falls within the description of the tort of trespass to the person. But that, as I have endeavoured to show, does not mean that there are two causes of action. It merely means that there are two apt descriptions of the same cause of action. It does not cease to be the tort of negligence because it can also be called by another name. An action founded upon it is nonetheless an action for negligence because it can also be called an action for trespass to the person."
Confusion may arise because lawyers frequently deploy the term "cause of action" as being synonymous, not with the underlying factual matrix which entitles a claimant to a remedy, but with the legal categorisation which is applied to it. Indeed, in Letang Lord Denning observed at p. 241:
"Her only cause of action here, in my judgment, where the damage was unintentional, was negligence and not trespass to the person."
In the context of applications to add new claims, however, it is the Diplock formulation which has been adopted. In Lloyd's Bank Plc v Rogers and another [1999] 38 EG 83 at p. 85F Auld LJ held:
"It is important to note that what makes a "a new claim" as defined in Section 35(2) is not the newness of the claim according to the type or quantum of remedy sought, but the newness of the cause of action which it involves. The formula employed in Section 35(2)(a) and (5) is "a claim involving … the addition or substitution of a new cause of action"…Diplock LJ's widely accepted definition of a cause of action in Letang v. Cooper…as "simply a factual situation the existence of which entitles one party to obtain from the court a remedy against another person", as distinct from "a form of action … used as a convenient and succinct description of a particular category of factual situation", is of importance… It follows…that an originally pleaded "factual situation" may disclose more than one cause of action, although one of them may not be individually categorized as such or the subject of a claim for a separate remedy. However,it does not follow that a claim so categorizing it and/or seeking a remedy for it made for...
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