CPR 17.4, amendments, and limitation

In Mulalley & Co Ltd v Martlet Homes Ltd [2022] EWCA Civ 32 the Court of Appeal dismissed an appeal from a decision of Pepperall J in which he gave permission to the claimant under r17.4 of the Civil Procedure Rules to amend its claim after the expiry of the limitation period in order to counter a defence which had been relied upon by the defendant. The Court of Appeal held that the amendments sought to be made by the claimant attempted to add or substitute a new cause of action which arose out of the same or substantially the same facts as those already in issue in the existing claim and so fell within the scope of r17.4. A critical factor here was that it was the defendant who had raised the issue in its defence, and it could not then turn round and prevent the claimant from responding to that defence. In so concluding the Court of Appeal confirmed that the courts do have a degree of flexibility in deciding whether or not the facts are the same or substantially the same as those in issue in the existing claim and that there is no requirement that there must be a complete, 100 per cent overlap between the original claim and the amended claim.