Glenluce Fishing Company Ltd v Watermota Ltd

[2016] EWHC 1087 (TCC)

Here, having made a claim for losses following problems with an engine installed by Watermota in one of their fishing vessels, Glenluce sought permission to amend its Claim Form to reflect the sums now claimed in the Particulars of Claim. Watermota resisted on the grounds that with due diligence the claim now put forward could and should have been recognised in the Claim Form. As this was not done, an inappropriate court fee was paid when the proceedings were commenced, with the consequence that the amendment to introduce a new head of claim outside the limitation period should not be allowed.

The original claim was £69k, representing the value of the engines, the cost of repeatedly replacing the fuel injectors and interest. The revised claim of £162k, included claims based on the value of the vessel, scrapping costs and costs for extra maintenance and wasted expenditure. The case as put by Watermota was as follows:

(i) The claim form stipulated a value of the claim, namely £69,694.06.

(ii) The appropriate fee for a claim of that size was paid.

(iii) The claim was now valued at £162,132.06.

(iv) Had the claim been valued at that figure, a significantly higher court fee would have been paid.

(v) With due diligence, Glenluce could and should have identified at the time that the Claim Form was issued that the amount claimed was understated.

(vi) The Limitation Period had now expired.

(vii) The application to amend to increase the claim should therefore be refused.

Watermota did not suggest that there had been an abuse of process here, for example deliberately undervaluing the Claim in order to pay a lesser court fee. Further, Watermota could not point to any prejudice which it had suffered by reason of the fact that the value of the claim was stated in a lesser sum in the Claim Form than in the Particulars of Claim.

Further Mr Roger ter Haar QC noted that the Court Service would not be the loser since the Claimant proposed to pay the appropriate increase in court fee.  The Judge also noted that whilst there had been some criticism of the time taken by Glenluce to get its claim together and it could have proceeded faster to identify the true value of its claim, at least a significant part of the delay in issue of proceedings was the agreement by Watermota to supply documents, an agreement which it did not honour.

This meant that if the appropriate court test was whether or not Glenluce did all that it reasonably could to bring the matter before the court in the appropriate way, including identifying before issue of the Claim Form the true value of the claim, reflecting that in the Claim Form and paying the resultant fee, then the Judge would have been bound to resolve this matter in favour of Watermota.

However, the Judge did not consider that this was a case where the Defendant was seeking to strike out the claim on the basis that the claim was not “brought” within the applicable limitation period. Here, to the extent that the amendment introduced a new “claim” (which was an arguable point), it did not introduce a new cause of action, but only significantly altered the heads of claim. The Judge accepted that the increase was significant in monetary terms and as a multiple of the claim first put forward. However, in the absence of any prejudice to Watermota if the amendment was allowed, and the significant potential prejudice to Glenluce if it was disallowed, this was an amendment which should be allowed.

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