Here's a copy of Lloyds Bank -v- Rogers:(posted 8538 days ago)LLOYDS BANK PLC (Claimant) v DEREK EDWARD STUART ROGERS & ANOR (Defendants) (1999)
CA (Evans LJ, Auld LJ) 16/7/99
Amendments to a county court mortgagee possession action to add a claim for a money judgment were properly allowed.
Appeal by the first defendant ('Rogers') from the order of HH Judge Anthony Thompson QC upholding the decision of Deputy District Judge Rutherford to allow the claimant ('the Bank') to amend its particulars of claim in a mortgagee possession action by adding a claim for a money judgment in respect of principal and interest due under the mortgage. Rogers resisted the amendments on the grounds of limitation, relying on s.35(5) Limitation Act 1980, RSC O.20 r.5 and CCR O.20 r.1. The Bank commenced possession proceedings in the county court following a formal demand. The proceedings were in the form prescribed by CCR O.6 r.5(1), giving certain particulars of the mortgage and the sum allegedly due under it, but did not contain a money claim. The deputy district judge allowed the Bank's application to amend to add such a claim. The appeal raised the following issues: (1) whether the proposed money claim was a "new claim" within s.35(5) entitling Rogers to rely on a limitation defence. (2) If so, whether the cause of action in respect of that new claim arose out of the same or substantially the same facts as those already pleaded. (3) In either case, whether the amendment should have been allowed in the exercise of the court's discretion.
HELD: (1)(a) (per Auld LJ) The original claim pleaded all the essential matters of fact necessary for the new remedy, with the consequence that there was no new cause of action, since nothing was sought to be added to the "factual situation" already pleaded; (b) (per Evans LJ) It would be self-evident that a new claim was being added were it not for the fact that the Bank, in compliance with the rules and for no other reason, had pleaded full particulars of the sum allegedly due under the mortgage. The money claim was nevertheless conspicuous by its absence and the attempt to add the new remedy was, in the circumstances, an attempt to add a new cause of action. (2) The facts relied on in support of the money claim were undoubtedly the same, or substantially the same, as those already claimed, and the judge was therefore correct to allow the amendment on that ground. (3) The exercise of the judge's discretion in favour of the Bank could not be faulted. It was not a misuse of the power given by RSC O.20 r.5(5) to allow the Bank to override the limitation period by seeking an alternative remedy arising out of the same or substantially the same facts, to cover any shortfall on the security the subject of the possession claim.
Appeal dismissed.
Simon Browne-Wilkinson QC and Jeffrey Chapman instructed by Foot & Bowden for the claimant. Miles Croally instructed by Alison Trent & Co for the first defendant.
LTL 16/7/99 : (1999) EGCS 106 : (1999) 38 EG 187