In Fattal and others v Walbrook Trustees (Jersey) Ltd and others  EWHC 2767 (Ch), the Claimants had commenced the action in October 2006, and had served amended Particulars of Claim in February 2010. Draft re-amended Particulars were served in September 2010 which increased the length of the document by around 100 pages. The Defendants objected to many of the proposed amendments on the ground that they raised claims that were now statute-barred. In parallel with the Claimants’ application to re-amend the Particulars of Claim, the Defendants applied for summary judgment.
The court dismissed the Claimants’ application for permission to re-amend in relation to the vast majority of amendments. In doing so, the court noted that two questions arise when a limitation objection is raised in such an application: (1) whether the court has jurisdiction to permit the amendment, and (2) if it does, whether as a matter of discretion the court should permit the amendments to be made. The judge considered previous authorities on CPR 17.4. The first relevant test was that the introduction of a claim based on dishonesty (as had been introduced in this case), where none existed before, was a new claim where it did not arise out of the same facts as the previous claim or claims. The test under CPR 17.4(2) had later been expanded to include “the same facts already in issue”. However, the rule was still restricted to cases where the factual issues under the old pleading were to be litigated between the parties.
Unless the amendment falls within the scope of CPR 17.4, the court has no power to permit it. However, even if an amendment does fall within CPR 17.4, the court still has a discretion whether or not to permit it. The discretion to allow an amendment after the limitation period has expired should not be lightly or routinely exercised, especially if the exercise of such discretion would deprive a defendant of a limitation defence.
The judge stated that in considering whether to permit an amendment, he also had to consider whether the amendment was supported by any evidence, and whether the claim had a real prospect of success. He noted that the later the amendment, the more evidence may be required to support it.
The judgment in this case contains a very useful review of the major cases in which the court has considered the question of amendments to a statement of case where a limitation objection has been raised. It also contains a list of the factors which influenced the court’s discretion to refuse the vast majority of the amendments proposed.