London Market - December 2009

Date cause of action accrued, constitution of a new claim, amendment of particulars of claim

Seele Austria v Tokio Marine(6 August 2009) follows on from our previous analysis in the April 2009 edition of our London Market team newsletter.  The claimant originally sought to recover costs incurred in relation to the rectification of faulty windows and the resultant damage of the defects in a building project.

The Court had stopped the claimant from putting forward a new case as they had failed to seize numerous opportunities to do so previously and therefore an amendment of the Particulars of Claim would be an unreasonable abuse of process.

Following on from this, a ‘new’ claim came about as part of proceedings being transferred to the Technology and Construction Court and amended pleadings having been served.  In response to the amended Defence, the claimant’s admitted that contrary to their initial assessment, some costs related to a further 18 windows on the North East elevations, in addition to the 31 brick-clad windows on the South West elevation.  The defendant argued that it appeared this was a new case being advanced. The claimants contended that the fundamentals of the case had not changed.  However, references had been made to distinct windows.  The claimants then filed a further standalone pleading limiting the claim to 26 windows, the remaining 5 not being brick clad.

Held
Mr Justice Clarke found for the defendant with the following reasoning:

• A claim for damages was a new claim, even if in the same amount as originally claimed, if the claimant sought, by amendment, to justify it on a different factual basis from that originally pleaded.  It was highly material to know which windows were in question, since it was a necessary part of the cause of action that the costs in relation to each window for which there was a claim should exceed £10,000 and so there was a separate cause of action in respect of the damage relating to each window. 
  
• The orthodox position was that suggested by the defendant that a cause of action accrued when the insured peril occurred (i.e. damage to the property) and not the date when the loss was manifested or the assured incurred expenditure. In the circumstances, the defendant had an arguable case that the limitation period in respect of the claim for 26 windows had expired. The claimant’s reply could not be considered unless it arose out of the same or substantially the same facts as were already in issue in the existing claim.
  
• The claim in respect of 26 brick clad windows on the South and West elevations did not arise out of the same or substantially the same facts as a claim in respect of 18 windows. There were common facts as between the claim; however, a claim in respect of the 26 windows differed substantially from that of the 18 windows. The new claim was struck out.
  
• If that conclusion was wrong, the Judge was not persuaded that justice called for him to exercise his discretion in favour of allowing an amendment to the particulars of claim to plead a claim in respect of the 26 windows.