Relying on facts pleaded by another defendant

Charles Church Developments Ltd v Stent Foundations Ltd and another QBD TLR 4 January

The point in issue could be set out as follows. Suppose that there were two defendants to an action. Let the claimant be C and the two defendants D1 and D2. If one of the defendants pleaded facts by way of defence to C’s claim, could C adopt those facts as the basis of a new claim against the other defendant after expiry of the limitation? The expanded version of CPR rule 17.4(2) as set out in Brooke LJ’s judgment in Goode v Martin [2002] 1 WLR 1828 meant that any fact which D1 or D2 might have pleaded became an issue in the proceedings unless those facts were admitted by C. Section 35(5)(a) of the Limitation Act 1980 provided an exception to the limitation principle. The rationale of that exception was that once particular facts had been put in issue in litigation, and therefore fell to be investigated, the claimants should have been entitled to claim any appropriate remedy on the basis of those facts. That policy justification was equally valid irrespective of whether those facts had been put in issue by D1 or by D2 or by both defendants. Accordingly, in the present claim where the claimant alleged that the first defendant was liable for the first and third of three incidents and the second defendant liable for a second incident, when the second defendant maintained in its defence that the second incident was caused by matters for which the first defendant was responsible, the claimant was entitled to serve fresh particulars of claim, outside the limitation period, which included an amendment by which the claimant sought to set up a new claim against the first defendant in respect of the second incident. The claimant was entitled to adopt as against the first defendant the matters which the second defendant pleaded in its defence. It depends on the circumstances of each case. In the present case, the amendment was allowed.