We are considering Roberts – that’s Mark. Before considering McEvoy’s more
recent remarks, I would like to quote from Foster and McEvoy’s attending
commentary. I bring it to attention because, surprise! it also appeals to the
conceptual analysis of ‘necessity,’ and more importantly, ‘substance,’ in the
phrase ‘substantially’.
Foster: “The amendment sought by Mark Roberts would require the administrator
of the
estate to be joined as a nominal defendant to the proceedings. Unfortunately
for Mark Roberts, CPR 19.5 prohibits the addition of a new party to
proceedings after the limitation had expired except where it is ‘NECESSARY’
under one of the three reasons listed in 19.5(3). On the FACTS, the only
arguable limb is 19.5(3)(b) which states that “the addition or substitution of
a
party is NECESSARY only if the court is satisfied that the claim can NOT
properly be carried on by or against the original party unless the new party is
added or substituted as claimant or defendant.” All of the Court of Appeal
judges agree that Mark Roberts could NOT satisfy this requirement. There was
no need for the administrator to be joined to Mark Roberts’s original claim,
brought in his ‘personal’ capacity, in order for that claim to continue.”
McEvoy seems to have detected some shortcomings here. As in philosophy, legal
reasoning tends to involve ‘counter-factual arguments.’ McEvoy notes:
“[A]t one level this [that Foster notes] is understandable enough. But what
really stops or stands
in the way of the following alternative line of reasoning? [First, that] THE
‘CLAIM’ in the pre-existing action (in Mark Roberts’s ‘personal’ capacity) is
substantially THE SAME (being a claim for the negligence of the solicitors
acting) AS THE CLAIM in the proposed ‘derivative action.’ [Second,] as this
‘claim’ can NOT succeed in Mark Roberts’s ‘personal’ capacity (as the
solicitor’s duty of care extends only to the estate, and not to Mark Roberts in
his ‘personal’ capacity
as beneficiary), it IS ‘necessary’ for Mark Roberts to switch [or to [or alter
his capacity to] a ‘representative’ capacity
(for the estate). [Third,] as this switch [or alteration in Mark Roberts’s
capacities from ‘personal’ to ‘representative’] makes NECESSARY the joinder of
the
personal representative, “the addition or substitution” of the personal
representative IS ‘necessary’ because “the claim cannot be properly carried on
by or against the original party” without this happening. What is wrong with
this line of reasoning? In other words, why is “the claim” in the derivative
action not SUBSTANTIALLY the same claim, at least for the purposes of 19.5 (3),
as “the claim” in the original action? That is to ask, why can we not instead
conclude that there IS a need “for the administrator to be joined to Mark
Roberts’s original claim, brought in his ‘personal’ capacity, in order for that
claim to continue”? […]. More generally, we may ask: on what basis is it
determined whether “the claim”
in the derivative action is THE SAME as “the claim” in the original
non-derivative action? And we can add a specific variant: on what basis is this
determined for the purposes of 19.5 (3)?”
For the record, the use of ‘substantially’ in the judgment: (A) Para 25: “Ord
20, r 5(5) also allows the addition or substitution of a new cause of action if
it arises out of the same or SUBSTANTIALLY THE SAME facts as a cause of action
in respect of which relief had already been claimed in the action.” (B) Para
31: “—(a) in the case of a claim involving a new cause of action, if the new
cause of action arises out of the same facts or SUBSTANTIALLY THE SAME facts as
are already in issue on any claim previously made in the original action.” (C)
Para 35: "(2) The court may allow an amendment whose effect will be to add or
substitute a new claim, but only if the new claim arises out of the same facts
or SUBSTANTIALLY THE SAME facts as a claim in respect of which the party
applying for permission has already claimed a remedy in the proceedings.” (D)
Para 38: “Rules of court may provide for allowing a new claim, but only (a) in
the case of a claim involving a new cause of action, if the new cause of action
arises out of the same facts or SUBSTANTIALLY THE SAME facts as are already in
issue on any claim previously made in the original action; … a new claim may be
added by amendment but only if the new claim arises out of the same facts or
SUBSTANTIALLY THE SAME facts as the original claim.(6) CPR 19.5(2).” (E) The
next uses ‘sterile analysis’. Para 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]. He referred to the classic definitions by Brett J in Cooke v Gill LR 8
CP 107 , 116 as "every fact which is material to be proved to entitle the
plaintiff to succeed", and by Diplock LJ in Letang v Cooper 1 QB 232 ,
242-243 as "simply a factual situation the existence of which entitles one
person to obtain from the court a remedy against another person," and went on:
"in identifying a new cause of action the bare minimum of essential facts
abstracted from the original pleading is to be compared with the minimum as it
would be constituted under the amended pleading. But in applying section
35(5)(a) the court is concerned on a much less abstract level with all the
evidence likely to be adduced at trial: see Goode v Martin 1 WLR, 1838,
approving Hobhouse LJ's observation in Lloyds Bank plc v Rogers The Times, 24
March 1997; Court of Appeal (Civil Division) Transcript No 1904 of 1996: 'The
policy of the section is that, if factual issues are in any event going to be
litigated between the parties, the parties should be able to rely upon any
cause of action which SUBSTANTIALLY arises from those facts'.” (F) Para 107
(Walker): “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.” (G) Para 116: “Lord Collins has set out the relevant
provisions of the Limitation Act and the CPR and has discussed the authorities
in a masterful way which I could not seek to match. My concern is this. If this
were a case in which there were special circumstances such as to make it just
that, subject to the issue of limitation, the appellant should in principle be
permitted to proceed by way of derivative action against the respondents, I
would be concerned if the court had no power to give him permission to amend in
circumstances in which it is common ground that the derivative claim, which I
will call the 'new claim', arises out of the same or SUBSTANTIALLY THE SAME
facts as the appellant's original claim, which was issued in time. (H) Para
117: “It is thus not in dispute that the appellant satisfies CPR 17.4(2)
because he is seeking to add a new claim which arises out of the same facts or
SUBSTANTIALLY THE SAME facts as his existing claim. He is seeking to advance
the new claim in a new capacity, namely a representative capacity, which he may
or may not have had when the proceedings were started but, if he did not, which
he 'has since acquired' within the meaning of CPR 17.4(4). It follows that, on
the face of CPR 17.4(2) and (4), the court has power to grant an application
for permission to amend to alter the capacity in which he sues.” (I) Finally,
Para 132: “It is important to note that the above ANALYSIS would only give the
court power to allow an amendment without joinder at the same time. Whether it
would exercise the power would depend upon all the circumstances of the case.
It may well be inappropriate, or even (depending upon the circumstances) WRONG
in principle, to grant an application for permission to amend to change the
“capacity” in which a claimant has been proceeding, but the court would have
the power to do so if it appeared just in all the circumstances. I see no
reason why the court should not have that power where the new claim arises out
of the same or SUBSTANTIALLY THE SAME circumstances as the existing claim. In
this regard it is significant that the power is included in a limitation
statute. The purpose of such a statute is to protect the defendant against whom
a stale claim is made. On the other hand, the staleness of the claim is likely
to be of less significance where the new claim arises out of the same or
SUBSTANTIALLY THE SAME facts as the original claim.”
End of excursus on ‘substantially the same…’ Must say I love Walker going
over-analytically: “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.”
Cheers,
Speranza
