For the record, the use of 'sterile' in the Roberts case, below (in 41 as
applied indeed to "analysis;" in 107 as applied to "topic.")
Cheers,
Speranza
"41. The representative claim is a claim involving a new cause of action, since
the capacity in which Mark Roberts makes the claim is an essential part of the
claim: Oates v Consolidated Capital Services Pty Ltd NSWCA 183 , at [105].
The court has power to allow the amendment because the new representative claim
arises out of the same facts or substantially the same facts as the existing
claim: CPR 17.4(2). Consequently it is not necessary to burden this discussion
with a sterile analysis of the learning on what constitutes a cause of action.
It is sufficient to quote what Robert Walker LJ said in Smith v Henniker-Major
& Co (A firm) Ch 182 (CA) at [96]."
"107. Reference was made in argument to the well-known definition of "cause of
action" put forward by Diplock LJ in Letang v Cooper 1 QB 232 , 242-243. I am
conscious that this is (as Lord Collins says) a sterile topic but I venture to
repeat something that I said in a dissenting judgment in Smith v
Henniker-Major & Co Ch 182 , para 95 (just before the passage quoted by Lord
Collins):"I have to say that in the context of §35 of the Limitation Act I am
uneasy about the process of lifting either of these CLASSIC DEFINITIONS out of
the legal lexicon, as it were, and reading them into the language of §35(5)(a).
The notion of 'a factual situation' which 'arises out of the same facts or
substantially the same facts' as another set of facts is not an easy one to
grasp. The other classic definition referred to was that of Brett J in Cooke v
Gill LR 8 CP 107 , 116."
